[Title 34 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          34


          Parts 300 to 399

          Revised as of July 1, 2009


          Education
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



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

  Title 34:
    SUBTITLE B--Regulations of the Offices of the Department 
      of Education (Continued)
          Chapter III--Office of Special Education and 
          Rehabilitative Services, Department of Education           5
  Findings Aids:
      Table of CFR Titles and Chapters........................     449
      Alphabetical List of Agencies Appearing in the CFR......     469
      List of CFR Sections Affected...........................     479

[[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

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
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    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
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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 
amendments to existing regulations in the CFR. These OMB numbers are 
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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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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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    What is a proper incorporation by reference? The Director of the 
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approval is based are:
    (a) The incorporation will substantially reduce the volume of 
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    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
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CFR INDEXES AND TABULAR GUIDES

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This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.




[[Page vii]]



REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2009.







[[Page ix]]



                               THIS TITLE

    Title 34--Education is composed of three volumes. The parts in these 
volumes are arranged in the following order: (parts 1--299, parts 300--
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, 2009.

    For this volume, Michele Bugenhagen was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[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
303             Early intervention program for infants and 
                    toddlers with disabilities..............         165
304             Service obligations under special 
                    education--personnel development to 
                    improve services and results for 
                    children with disabilities..............         205
350             Disability and rehabilitation research 
                    projects and centers program............         209
356             Disability and rehabilitation research: 
                    Research fellowships....................         224
359             Disability and rehabilitation research: 
                    Special projects and demonstrations for 
                    spinal cord injuries....................         227
361             The State vocational rehabilitation services 
                    program.................................         230
363             The State supported employment services 
                    program.................................         295
364             State independent living services program 
                    and centers for independent living 
                    program: General provisions.............         301
365             State independent living services...........         320
366             Centers for independent living..............         324
367             Independent living services for older 
                    individuals who are blind...............         343
369             Vocational rehabilitation service projects..         350
370             Client assistance program...................         357
371             Vocational rehabilitation service projects 
                    for American Indians with disabilities..         368
373             Special demonstration programs..............         372
376             Special projects and demonstrations for 
                    providing transitional rehabilitation 
                    services to youth with disabilities.....         378

[[Page 6]]

377             Demonstration projects to increase client 
                    choice program..........................         380
379             Projects with industry......................         386
380             Special projects and demonstrations for 
                    providing supported employment services 
                    to individuals with the most severe 
                    disabilities and technical assistance 
                    projects................................         396
381             Protection and advocacy of individual rights         401
385             Rehabilitation training.....................         406
386             Rehabilitation training: Rehabilitation 
                    long-term training......................         413
387             Experimental and innovative training........         420
388             State vocational rehabilitation unit in-
                    service training........................         421
389             Rehabilitation continuing education programs         424
390             Rehabilitation short-term training..........         426
395             Vending facility program for the blind on 
                    Federal and other property..............         428
396             Training of interpreters for individuals who 
                    are deaf and individuals who are deaf-
                    blind...................................         443
397-399

[Reserved]

[[Page 7]]



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




                            Subpart A_General

                       Purposes and Applicability

Sec.
300.1 Purposes.
300.2 Applicability of this part to State and local agencies.

                      Definitions Used in This Part

300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Charter school.
300.8 Child with a disability.
300.9 Consent.
300.10 Core academic subjects.
300.11 Day; business day; school day.
300.12 Educational service agency.
300.13 Elementary school.
300.14 Equipment.
300.15 Evaluation.
300.16 Excess costs.
300.17 Free appropriate public education.
300.18 Highly qualified special education teachers.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program team.
300.24 Individualized family service plan.
300.25 Infant or toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Scientifically based research.
300.36 Secondary school.
300.37 Services plan.
300.38 Secretary.
300.39 Special education.
300.40 State.
300.41 State educational agency.
300.42 Supplementary aids and services.
300.43 Transition services.
300.44 Universal design.
300.45 Ward of the State.

                       Subpart B_State Eligibility

                                 General

300.100 Eligibility for assistance.

                            FAPE Requirements

300.101 Free appropriate public education (FAPE).
300.102 Limitation--exception to FAPE for certain ages.

                         Other FAPE Requirements

300.103 FAPE--methods and payments.
300.104 Residential placement.
300.105 Assistive technology.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal (FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs (IEP).
300.113 Routine checking of hearing aids and external components of 
          surgically implanted medical devices.

                   Least Restrictive Environment (LRE)

300.114 LRE requirements.
300.115 Continuum of alternative placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private institutions.
300.119 Technical assistance and training activities.
300.120 Monitoring activities.

                   Additional Eligibility Requirements

300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally identifiable information.
300.124 Transition of children from the Part C program to preschool 
          programs.
300.125-300.128 [Reserved]

                       Children in Private Schools

300.129 State responsibility regarding children in private schools.

 Children With Disabilities Enrolled by Their Parents in Private Schools

300.130 Definition of parentally-placed private school children with 
          disabilities.
300.131 Child find for parentally-placed private school children with 
          disabilities.
300.132 Provision of services for parentally-placed private school 
          children with disabilities--basic requirement.
300.133 Expenditures.
300.134 Consultation.
300.135 Written affirmation.
300.136 Compliance.
300.137 Equitable services determined.
300.138 Equitable services provided.
300.139 Location of services and transportation.

[[Page 8]]

300.140 Due process complaints and State complaints.
300.141 Requirement that funds not benefit a private school.
300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.

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

300.145 Applicability of Sec. Sec. 300.146 through 300.147.
300.146 Responsibility of SEA.
300.147 Implementation by SEA.

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

300.148 Placement of children by parents when FAPE is at issue.

    SEA Responsibility for General Supervision and Implementation of 
                          Procedural Safeguards

300.149 SEA responsibility for general supervision.
300.150 SEA implementation of procedural safeguards.

                       State Complaint Procedures

300.151 Adoption of State complaint procedures.
300.152 Minimum State complaint procedures.
300.153 Filing a complaint.

                      Methods of Ensuring Services

300.154 Methods of ensuring services.

                   Additional Eligibility Requirements

300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.158-300.159 [Reserved]
300.160 Participation in assessments.
300.161 [Reserved]
300.162 Supplementation of State, local, and other Federal funds.
300.163 Maintenance of State financial support.
300.164 Waiver of requirement regarding supplementing and not 
          supplanting with Part B funds.
300.165 Public participation.
300.166 Rule of construction.

                          State Advisory Panel

300.167 State advisory panel.
300.168 Membership.
300.169 Duties.

             Other Provisions Required for State Eligibility

300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B funds.
300.172 Access to instructional materials.
300.173 Overidentification and disproportionality.
300.174 Prohibition on mandatory medication.
300.175 SEA as provider of FAPE or direct services.
300.176 Exception for prior State plans.
300.177 States' sovereign immunity and positive efforts to employ and 
          advance qualified individuals with disabilities.

                          Department Procedures

300.178 Determination by the Secretary that a State is eligible to 
          receive a grant.
300.179 Notice and hearing before determining that a State is not 
          eligible to receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal programs.

                 By-pass for Children in Private Schools

300.190 By-pass--general.
300.191 Provisions for services under a by-pass.
300.192 Notice of intent to implement a by-pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.

                          State Administration

300.199 State administration.

             Subpart C_Local Educational Agency Eligibility

300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in certain fiscal years.
300.206 Schoolwide programs under title I of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory children with disabilities.

[[Page 9]]

300.214-300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency in case of ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.

   Subpart D_Evaluations, Eligibility Determinations, Individualized 
             Education Programs, and Educational Placements

                            Parental Consent

300.300 Parental consent.

                      Evaluations and Reevaluations

300.301 Initial evaluations.
300.302 Screening for instructional purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for evaluations and reevaluations.
300.306 Determination of eligibility.

 Additional Procedures for Identifying Children With Specific Learning 
                              Disabilities

300.307 Specific learning disabilities.
300.308 Additional group members.
300.309 Determining the existence of a specific learning disability.
300.310 Observation.
300.311 Specific documentation for the eligibility determination.

                    Individualized Education Programs

300.320 Definition of individualized education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.

                           Development of IEP

300.324 Development, review, and revision of IEP.
300.325 Private school placements by public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting participation.

                     Subpart E_Procedural Safeguards

             Due Process Procedures for Parents and Children

300.500 Responsibility of SEA and other public agencies.
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 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal; impartial review.
300.515 Timelines and convenience of hearings and reviews.
300.516 Civil action.
300.517 Attorneys' fees.
300.518 Child's status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of majority.
300.521-300.529 [Reserved]

                          Discipline Procedures

300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not determined eligible for special 
          education and related services.
300.535 Referral to and action by law enforcement and judicial 
          authorities.
300.536 Change of placement because of disciplinary removals.
300.537 State enforcement mechanisms.
300.538-300.599 [Reserved]

    Subpart F_Monitoring, Enforcement, Confidentiality, and Program 
                               Information

            Monitoring, Technical Assistance, and Enforcement

300.600 State monitoring and enforcement.
300.601 State performance plans and data collection.
300.602 State use of targets and reporting.
300.603 Secretary's review and determination regarding State 
          performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency responsibility.
300.608 State enforcement.
300.609 Rule of construction.

[[Page 10]]

                     Confidentiality of Information

300.610 Confidentiality.
300.611 Definitions.
300.612 Notice to parents.
300.613 Access rights.
300.614 Record of access.
300.615 Records on more than one child.
300.616 List of types and locations of information.
300.617 Fees.
300.618 Amendment of records at parent's request.
300.619 Opportunity for a hearing.
300.620 Result of hearing.
300.621 Hearing procedures.
300.622 Consent.
300.623 Safeguards.
300.624 Destruction of information.
300.625 Children's rights.
300.626 Enforcement.
300.627 Department use of personally identifiable information.

                      Reports--Program Information

300.640 Annual report of children served--report requirement.
300.641 Annual report of children served--information required in the 
          report.
300.642 Data reporting.
300.643 Annual report of children served--certification.
300.644 Annual report of children served--criteria for counting 
          children.
300.645 Annual report of children served--other responsibilities of the 
          SEA.
300.646 Disproportionality.

   Subpart G_Authorization, Allotment, Use of Funds, Authorization of 
                             Appropriations

                  Allotments, Grants, and Use of Funds

300.700 Grants to States.
300.701 Outlying areas, freely associated States, and the Secretary of 
          the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to LEAs.
300.706 [Reserved]

                        Secretary of the Interior

300.707 Use of amounts by Secretary of the Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of funds under Part B of the Act.
300.711 Early intervening services.
300.712 Payments for education and services for Indian children with 
          disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.

                 Definitions That Apply to This Subpart

300.717 Definitions applicable to allotments, grants, and use of funds.

  Acquisition of Equipment and Construction or Alteration of Facilities

300.718 Acquisition of equipment and construction or alteration of 
          facilities.

        Subpart H_Preschool Grants for Children With Disabilities

300.800 In general.
300.801-300.802 [Reserved]
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 [Reserved]
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to LEAs.
300.816 Allocations to LEAs.
300.817 Reallocation of LEA funds.
300.818 Part C of the Act inapplicable.

Appendix A to Part 300--Excess Costs Calculation
Appendix B to Part 300--Proportionate Share Calculation
Appendix C to Part 300--National Instructional Materials Accessibility 
          Standard (NIMAS)
Appendix D to Part 300--Maintenance of Effort and Early Intervening 
          Services
Appendix E to Part 300--Index for IDEA--Part B Regulations (34 CFR Part 
          300)

    Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise 
noted.

    Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.



                            Subpart A_General

                       Purposes and Applicability



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 unique needs and 
prepare them for further education, employment, and independent living;

[[Page 11]]

    (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(d))



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

    (a) States. This part applies to each State that receives payments 
under Part B of the Act, as defined in Sec. 300.4.
    (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).
    (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 of the 
Act.
    (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. 300.148.

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

                      Definitions Used in This Part



Sec. 300.4  Act.

    Act means the Individuals with Disabilities Education Act, as 
amended.

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



Sec. 300.5  Assistive technology device.

    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. The term does not 
include a medical device that is surgically implanted, or the 
replacement of such device.

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



Sec. 300.6  Assistive technology service.

    Assistive technology service means any service that directly assists 
a child with a disability in the selection, acquisition, or use of an 
assistive technology device. The term includes--
    (a) The evaluation of the needs of a child with a disability, 
including a functional evaluation of the child in the child's customary 
environment;
    (b) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (c) Selecting, designing, fitting, customizing, adapting, applying, 
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))

[[Page 12]]



Sec. 300.7  Charter school.

    Charter school has the meaning given the term in section 5210(1) of 
the Elementary and Secondary Education Act of 1965, as amended, 20 
U.S.C. 6301 et seq. (ESEA).

(Authority: 20 U.S.C. 7221i(1))



Sec. 300.8  Child with a disability.

    (a) General. (1) Child with a disability means a child evaluated in 
accordance with Sec. Sec. 300.304 through 300.311 as having mental 
retardation, a hearing impairment (including deafness), a speech or 
language impairment, a visual impairment (including blindness), a 
serious emotional disturbance (referred to in this part 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 Sec. Sec. 300.304 
through 300.311, 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. 300.39(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 three through nine experiencing developmental 
delays. Child with a disability for children aged three through nine (or 
any subset of that age range, including ages three through five), may, 
subject to the conditions described in Sec. 300.111(b), 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 of a child with a disability are defined as follows:
    (1)(i) Autism means a developmental disability significantly 
affecting verbal and nonverbal communication and social interaction, 
generally evident before age three, 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.
    (ii) Autism does not apply if a child's educational performance is 
adversely affected primarily because the child has an emotional 
disturbance, as defined in paragraph (c)(4) of this section.
    (iii) A child who manifests the characteristics of autism after age 
three could be identified 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 impaired in processing linguistic information through hearing, 
with or without amplification, that adversely affects a child's 
educational performance.
    (4)(i) Emotional disturbance 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.

[[Page 13]]

    (E) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (ii) Emotional disturbance includes schizophrenia. The term does not 
apply to children who are socially maladjusted, unless it is determined 
that they have an emotional disturbance under paragraph (c)(4)(i) of 
this section.
    (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 or mental retardation-orthopedic 
impairment), the combination of which causes such severe educational 
needs that they cannot be accommodated in special education programs 
solely for one of the impairments. Multiple disabilities 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 a congenital anomaly, impairments caused by 
disease (e.g., poliomyelitis, bone tuberculosis), 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, sickle cell anemia, and Tourette 
syndrome; and
    (ii) Adversely affects a child's educational performance.
    (10) Specific learning disability--(i) General. Specific learning 
disability means a disorder in one or more of the basic psychological 
processes involved in understanding or in using language, spoken or 
written, that may manifest itself in the 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. Specific learning disability 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. Traumatic brain 
injury applies to open or closed head injuries resulting in impairments 
in one or more areas, such as cognition; language; memory; attention; 
reasoning; abstract thinking; judgment; problem-solving; sensory, 
perceptual, and motor abilities; psychosocial behavior; physical 
functions; information processing; and speech. Traumatic brain injury 
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); 1401(30))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

[[Page 14]]



Sec. 300.9  Consent.

    Consent means that--
    (a) 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 through another mode of communication;
    (b) 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
    (c)(1) The parent understands that the granting of consent is 
voluntary on the part of the parent and may be revoked at any time.
    (2) 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).
    (3) If the parent revokes consent in writing for their child's 
receipt of special education services after the child is initially 
provided special education and related services, the public agency is 
not required to amend the child's education records to remove any 
references to the child's receipt of special education and related 
services because of the revocation of consent.

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

[71 FR 46753, Aug. 14, 2006, as amended at72 FR 61306, Oct. 30, 2007; 73 
FR 73027, Dec. 1, 2008]



Sec. 300.10  Core academic subjects.

    Core academic subjects means English, reading or language arts, 
mathematics, science, foreign languages, civics and government, 
economics, arts, history, and geography.

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



Sec. 300.11  Day; business day; school day.

    (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. 300.148(d)(1)(ii)).
    (c)(1) School day means any day, including a partial day that 
children are in attendance at school for instructional purposes.
    (2) 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. 300.12  Educational service agency.

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

(Authority: 20 U.S.C. 1401(5))



Sec. 300.13  Elementary school.

    Elementary school means a nonprofit institutional day or residential 
school, including a public elementary charter school, that provides 
elementary education, as determined under State law.

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



Sec. 300.14  Equipment.

    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(7))

[[Page 15]]



Sec. 300.15  Evaluation.

    Evaluation means procedures used in accordance with Sec. Sec. 
300.304 through 300.311 to determine whether a child has a disability 
and the nature and extent of the special education and related services 
that the child needs.

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



Sec. 300.16  Excess costs.

    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 school or secondary school student, as may be 
appropriate, and that must be computed after deducting--
    (a) Amounts received--
    (1) Under Part B of the Act;
    (2) Under Part A of title I of the ESEA; and
    (3) Under Parts A and B of title III of the ESEA and;
    (b) Any State or local funds expended for programs that would 
qualify for assistance under any of the parts described in paragraph (a) 
of this section, but excluding any amounts for capital outlay or debt 
service. (See Appendix A to part 300 for an example of how excess costs 
must be calculated.)

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



Sec. 300.17  Free appropriate public education.

    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 an appropriate preschool, elementary school, or 
secondary school education in the State involved; and
    (d) Are provided in conformity with an individualized education 
program (IEP) that meets the requirements of Sec. Sec. 300.320 through 
300.324.

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



Sec. 300.18  Highly qualified special education teachers.

    (a) Requirements for special education teachers teaching core 
academic subjects. For any public elementary or secondary school special 
education teacher teaching core academic subjects, the term highly 
qualified has the meaning given the term in section 9101 of the ESEA and 
34 CFR 200.56, except that the requirements for highly qualified also--
    (1) Include the requirements described in paragraph (b) of this 
section; and
    (2) Include the option for teachers to meet the requirements of 
section 9101 of the ESEA by meeting the requirements of paragraphs (c) 
and (d) of this section.
    (b) Requirements for special education teachers in general. (1) When 
used with respect to any public elementary school or secondary school 
special education teacher teaching in a State, highly qualified requires 
that--
    (i) The teacher has obtained full State certification as a special 
education teacher (including certification obtained through alternative 
routes to certification), or passed the State special education teacher 
licensing examination, and holds a license to teach in the State as a 
special education teacher, except that when used with respect to any 
teacher teaching in a public charter school, highly qualified means that 
the teacher meets the certification or licensing requirements, if any, 
set forth in the State's public charter school law;
    (ii) The teacher has not had special education certification or 
licensure requirements waived on an emergency, temporary, or provisional 
basis; and
    (iii) The teacher holds at least a bachelor's degree.
    (2) A teacher will be considered to meet the standard in paragraph 
(b)(1)(i) of this section if that teacher is participating in an 
alternative route to special education certification program under 
which--
    (i) The teacher--
    (A) Receives high-quality professional development that is 
sustained, intensive, and classroom-focused in

[[Page 16]]

order to have a positive and lasting impact on classroom instruction, 
before and while teaching;
    (B) Participates in a program of intensive supervision that consists 
of structured guidance and regular ongoing support for teachers or a 
teacher mentoring program;
    (C) Assumes functions as a teacher only for a specified period of 
time not to exceed three years; and
    (D) Demonstrates satisfactory progress toward full certification as 
prescribed by the State; and
    (ii) The State ensures, through its certification and licensure 
process, that the provisions in paragraph (b)(2)(i) of this section are 
met.
    (3) Any public elementary school or secondary school special 
education teacher teaching in a State, who is not teaching a core 
academic subject, is highly qualified if the teacher meets the 
requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and 
(b)(2) of this section.
    (c) Requirements for special education teachers teaching to 
alternate academic achievement standards. When used with respect to a 
special education teacher who teaches core academic subjects exclusively 
to children who are assessed against alternate academic achievement 
standards established under 34 CFR 200.1(d), highly qualified means the 
teacher, whether new or not new to the profession, may either--
    (1) Meet the applicable requirements of section 9101 of the ESEA and 
34 CFR 200.56 for any elementary, middle, or secondary school teacher 
who is new or not new to the profession; or
    (2) Meet the requirements of paragraph (B) or (C) of section 
9101(23) of the ESEA as applied to an elementary school teacher, or, in 
the case of instruction above the elementary level, meet the 
requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as 
applied to an elementary school teacher and have subject matter 
knowledge appropriate to the level of instruction being provided and 
needed to effectively teach to those alternate academic achievement 
standards, as determined by the State.
    (d) Requirements for special education teachers teaching multiple 
subjects. Subject to paragraph (e) of this section, when used with 
respect to a special education teacher who teaches two or more core 
academic subjects exclusively to children with disabilities, highly 
qualified means that the teacher may either--
    (1) Meet the applicable requirements of section 9101 of the ESEA and 
34 CFR 200.56(b) or (c);
    (2) In the case of a teacher who is not new to the profession, 
demonstrate competence in all the core academic subjects in which the 
teacher teaches in the same manner as is required for an elementary, 
middle, or secondary school teacher who is not new to the profession 
under 34 CFR 200.56(c) which may include a single, high objective 
uniform State standard of evaluation (HOUSSE) covering multiple 
subjects; or
    (3) In the case of a new special education teacher who teaches 
multiple subjects and who is highly qualified in mathematics, language 
arts, or science, demonstrate, not later than two years after the date 
of employment, competence in the other core academic subjects in which 
the teacher teaches in the same manner as is required for an elementary, 
middle, or secondary school teacher under 34 CFR 200.56(c), which may 
include a single HOUSSE covering multiple subjects.
    (e) Separate HOUSSE standards for special education teachers. 
Provided that any adaptations of the State's HOUSSE would not establish 
a lower standard for the content knowledge requirements for special 
education teachers and meet all the requirements for a HOUSSE for 
regular education teachers--
    (1) A State may develop a separate HOUSSE for special education 
teachers; and
    (2) The standards described in paragraph (e)(1) of this section may 
include single HOUSSE evaluations that cover multiple subjects.
    (f) Rule of construction. Notwithstanding any other individual right 
of action that a parent or student may maintain under this part, nothing 
in this part shall be construed to create a right of action on behalf of 
an individual student or class of students for the failure of a 
particular SEA or LEA employee to be highly qualified, or to

[[Page 17]]

prevent a parent from filing a complaint under Sec. Sec. 300.151 
through 300.153 about staff qualifications with the SEA as provided for 
under this part.
    (g) Applicability of definition to ESEA; and clarification of new 
special education teacher. (1) A teacher who is highly qualified under 
this section is considered highly qualified for purposes of the ESEA.
    (2) For purposes of Sec. 300.18(d)(3), a fully certified regular 
education teacher who subsequently becomes fully certified or licensed 
as a special education teacher is a new special education teacher when 
first hired as a special education teacher.
    (h) Private school teachers not covered. The requirements in this 
section do not apply to teachers hired by private elementary schools and 
secondary schools including private school teachers hired or contracted 
by LEAs to provide equitable services to parentally-placed private 
school children with disabilities under Sec. 300.138.

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]



Sec. 300.19  Homeless children.

    Homeless children has the meaning given the term homeless children 
and youths in section 725 (42 U.S.C. 11434a) of the McKinney-Vento 
Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.

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



Sec. 300.20  Include.

    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. 300.21  Indian and Indian tribe.

    (a) Indian means an individual who is a member of an Indian tribe.
    (b) 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, 43 U.S.C. 1601 et seq.).
    (c) Nothing in this definition is intended to indicate that the 
Secretary of the Interior is required to provide services or funding to 
a State Indian tribe that is not listed in the Federal Register list of 
Indian entities recognized as eligible to receive services from the 
United States, published pursuant to Section 104 of the Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.

(Authority: 20 U.S.C. 1401(12) and (13))



Sec. 300.22  Individualized education program.

    Individualized education program or IEP means a written statement 
for a child with a disability that is developed, reviewed, and revised 
in accordance with Sec. Sec. 300.320 through 300.324.

(Authority: 20 U.S.C. 1401(14))



Sec. 300.23  Individualized education program team.

    Individualized education program team or IEP Team means a group of 
individuals described in Sec. 300.321 that is responsible for 
developing, reviewing, or revising an IEP for a child with a disability.

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



Sec. 300.24  Individualized family service plan.

    Individualized family service plan or IFSP has the meaning given the 
term in section 636 of the Act.

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



Sec. 300.25  Infant or toddler with a disability.

    Infant or toddler with a disability--
    (a) Means an individual under three years of age who needs early 
intervention services because the individual--
    (1) Is experiencing developmental delays, as measured by appropriate 
diagnostic instruments and procedures in one or more of the areas of 
cognitive development, physical development, communication development, 
social or emotional development, and adaptive development; or
    (2) Has a diagnosed physical or mental condition that has a high 
probability of resulting in developmental delay; and

[[Page 18]]

    (b) May also include, at a State's discretion--
    (1) At-risk infants and toddlers; and
    (2) Children with disabilities who are eligible for services under 
section 619 and who previously received services under Part C of the Act 
until such children enter, or are eligible under State law to enter, 
kindergarten or elementary school, as appropriate, provided that any 
programs under Part C of the Act serving such children shall include--
    (i) An educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills; and
    (ii) A written notification to parents of their rights and 
responsibilities in determining whether their child will continue to 
receive services under Part C of the Act or participate in preschool 
programs under section 619.

(Authority: 20 U.S.C. 1401(16) and 1432(5))



Sec. 300.26  Institution of higher education.

    Institution of higher education--
    (a) Has the meaning given the term in section 101 of the Higher 
Education Act of 1965, as amended, 20 U.S.C. 1021 et seq. (HEA); and
    (b) Also includes any community college receiving funds from the 
Secretary of the Interior under the Tribally Controlled Community 
College or University Assistance Act of 1978, 25 U.S.C. 1801, et seq.

(Authority: 20 U.S.C. 1401(17))



Sec. 300.27  Limited English proficient.

    Limited English proficient has the meaning given the term in section 
9101(25) of the ESEA.

(Authority: 20 U.S.C. 1401(18))



Sec. 300.28  Local educational agency.

    (a) General. Local educational agency or LEA 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 schools or secondary schools.
    (b) Educational service agencies and other public institutions or 
agencies. The term includes--
    (1) An educational service agency, as defined in Sec. 300.12; and
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary school or secondary school, 
including a public nonprofit charter school that is established as an 
LEA under State law.
    (c) BIA funded schools. The term includes an elementary school 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 the Act with the smallest student population.

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



Sec. 300.29  Native language.

    (a) Native language, when used with respect to an individual who is 
limited English proficient, 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(20))



Sec. 300.30  Parent.

    (a) Parent means--

[[Page 19]]

    (1) A biological or adoptive parent of a child;
    (2) A foster parent, unless State law, regulations, or contractual 
obligations with a State or local entity prohibit a foster parent from 
acting as a parent;
    (3) A guardian generally authorized to act as the child's parent, or 
authorized to make educational decisions for the child (but not the 
State if the child is a ward of the State);
    (4) An individual acting in the place of a biological or adoptive 
parent (including a grandparent, stepparent, or other relative) with 
whom the child lives, or an individual who is legally responsible for 
the child's welfare; or
    (5) A surrogate parent who has been appointed in accordance with 
Sec. 300.519 or section 639(a)(5) of the Act.
    (b) (1) Except as provided in paragraph (b)(2) of this section, the 
biological or adoptive parent, when attempting to act as the parent 
under this part and when more than one party is qualified under 
paragraph (a) of this section to act as a parent, must be presumed to be 
the parent for purposes of this section unless the biological or 
adoptive parent does not have legal authority to make educational 
decisions for the child.
    (2) If a judicial decree or order identifies a specific person or 
persons under paragraphs (a)(1) through (4) of this section to act as 
the ``parent'' of a child or to make educational decisions on behalf of 
a child, then such person or persons shall be determined to be the 
``parent'' for purposes of this section.

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



Sec. 300.31  Parent training and information center.

    Parent training and information center means a center assisted under 
sections 671 or 672 of the Act.

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



Sec. 300.32  Personally identifiable.

    Personally identifiable means information that contains--
    (a) The name of the child, the child's parent, or other family 
member;
    (b) The address of the child;
    (c) A personal identifier, such as the child's social security 
number or student number; or
    (d) 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. 1415(a))



Sec. 300.33  Public agency.

    Public agency includes the SEA, LEAs, ESAs, nonprofit 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)(11))



Sec. 300.34  Related services.

    (a) General. 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, 
interpreting 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. 
Related services also include school health services and school nurse 
services, social work services in schools, and parent counseling and 
training.
    (b) Exception; services that apply to children with surgically 
implanted devices, including cochlear implants.
    (1) Related services do not include a medical device that is 
surgically implanted, the optimization of that device's functioning 
(e.g., mapping), maintenance of that device, or the replacement of that 
device.
    (2) Nothing in paragraph (b)(1) of this section--
    (i) Limits the right of a child with a surgically implanted device 
(e.g., cochlear implant) to receive related services (as listed in 
paragraph (a) of this section) that are determined by the

[[Page 20]]

IEP Team to be necessary for the child to receive FAPE.
    (ii) Limits the responsibility of a public agency to appropriately 
monitor and maintain medical devices that are needed to maintain the 
health and safety of the child, including breathing, nutrition, or 
operation of other bodily functions, while the child is transported to 
and from school or is at school; or
    (iii) Prevents the routine checking of an external component of a 
surgically implanted device to make sure it is functioning properly, as 
required in Sec. 300.113(b).
    (c) Individual related services 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) Interpreting services includes--
    (i) The following, when used with respect to children who are deaf 
or hard of hearing: Oral transliteration services, cued language 
transliteration services, sign language transliteration and interpreting 
services, and transcription services, such as communication access real-
time translation (CART), C-Print, and TypeWell; and
    (ii) Special interpreting services for children who are deaf-blind.
    (5) 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.
    (6) Occupational therapy--
    (i) Means services provided by a qualified occupational therapist; 
and
    (ii) Includes--
    (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.
    (7) Orientation and mobility services--
    (i) Means services provided to blind or visually impaired children 
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 children 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 or a service animal to supplement visual 
travel skills or as a tool for safely negotiating the environment for 
children with no available travel vision;
    (C) To understand and use remaining vision and distance low vision 
aids; and
    (D) Other concepts, techniques, and tools.
    (8)(i) Parent counseling and training means 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

[[Page 21]]

to support the implementation of their child's IEP or IFSP.
    (9) Physical therapy means services provided by a qualified physical 
therapist.
    (10) 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 educational needs of children as indicated by 
psychological tests, interviews, direct observation, 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.
    (11) Recreation includes--
    (i) Assessment of leisure function;
    (ii) Therapeutic recreation services;
    (iii) Recreation programs in schools and community agencies; and
    (iv) Leisure education.
    (12) 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 a disability by 
vocational rehabilitation programs funded under the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 701 et seq.
    (13) School health services and school nurse services means health 
services that are designed to enable a child with a disability to 
receive FAPE as described in the child's IEP. School nurse services are 
services provided by a qualified school nurse. School health services 
are services that may be provided by either a qualified school nurse or 
other qualified person.
    (14) 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.
    (15) 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 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.
    (16) 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(26))



Sec. 300.35  Scientifically based research.

    Scientifically based research has the meaning given the term in 
section 9101(37) of the ESEA.

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



Sec. 300.36  Secondary school.

    Secondary school means a nonprofit institutional day or residential 
school, including a public secondary charter school that provides 
secondary education, as determined under State law,

[[Page 22]]

except that it does not include any education beyond grade 12.

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



Sec. 300.37  Services plan.

    Services plan means a written statement that describes the special 
education and related services the LEA will provide to a parentally-
placed child with a disability enrolled in a private school who has been 
designated to receive services, including the location of the services 
and any transportation necessary, consistent with Sec. 300.132, and is 
developed and implemented in accordance with Sec. Sec. 300.137 through 
300.139.

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



Sec. 300.38  Secretary.

    Secretary means the Secretary of Education.

(Authority: 20 U.S.C. 1401(28))



Sec. 300.39  Special education.

    (a) General. (1) 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) Special education includes each of the following, if the 
services otherwise meet 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 special education 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 means--
    (i) 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 the child 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 not 
requiring a baccalaureate or advanced degree.

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



Sec. 300.40  State.

    State means each of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, and each of the outlying areas.

(Authority: 20 U.S.C. 1401(31))



Sec. 300.41  State educational agency.

    State educational agency or SEA means the State board of education 
or other agency or officer primarily responsible for the State 
supervision of

[[Page 23]]

public elementary schools and secondary schools, or, if there is no such 
officer or agency, an officer or agency designated by the Governor or by 
State law.

(Authority: 20 U.S.C. 1401(32))



Sec. 300.42  Supplementary aids and services.

    Supplementary aids and services means aids, services, and other 
supports that are provided in regular education classes, other 
education-related settings, and in extracurricular and nonacademic 
settings, to enable children with disabilities to be educated with 
nondisabled children to the maximum extent appropriate in accordance 
with Sec. Sec. 300.114 through 300.116.

(Authority: 20 U.S.C. 1401(33))



Sec. 300.43  Transition services.

    (a) Transition services means a coordinated set of activities for a 
child with a disability that--
    (1) Is designed to be within a results-oriented process, that is 
focused on improving the academic and functional achievement of the 
child with a disability to facilitate the child's movement from school 
to post-school activities, including postsecondary education, vocational 
education, integrated employment (including supported employment), 
continuing and adult education, adult services, independent living, or 
community participation;
    (2) Is based on the individual child's needs, taking into account 
the child's strengths, preferences, and interests; and 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 provision 
of a functional vocational evaluation.
    (b) Transition services for children with disabilities may be 
special education, if provided as specially designed instruction, or a 
related service, if required to assist a child with a disability to 
benefit from special education.

(Authority: 20 U.S.C. 1401(34))



Sec. 300.44  Universal design.

    Universal design has the meaning given the term in section 3 of the 
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002.

(Authority: 20 U.S.C. 1401(35))



Sec. 300.45  Ward of the State.

    (a) General. Subject to paragraph (b) of this section, ward of the 
State means a child who, as determined by the State where the child 
resides, is--
    (1) A foster child;
    (2) A ward of the State; or
    (3) In the custody of a public child welfare agency.
    (b) Exception. Ward of the State does not include a foster child who 
has a foster parent who meets the definition of a parent in Sec. 
300.30.

(Authority: 20 U.S.C. 1401(36))



                       Subpart B_State Eligibility

                                 General



Sec. 300.100  Eligibility for assistance.

    A State is eligible for assistance under Part B of the Act for a 
fiscal year if the State submits a plan that provides assurances to the 
Secretary that the State has in effect policies and procedures to ensure 
that the State meets the conditions in Sec. Sec. 300.101 through 
300.176.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

                            FAPE Requirements



Sec. 300.101  Free appropriate public education (FAPE).

    (a) General. A free appropriate public education must be available 
to all children residing in the State between the ages of 3 and 21, 
inclusive, including children with disabilities who have been suspended 
or expelled from school, as provided for in Sec. 300.530(d).
    (b) FAPE for children beginning at age 3. (1) Each State must ensure 
that--

[[Page 24]]

    (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. 300.323(b).
    (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.
    (c) Children advancing from grade to grade. (1) Each State must 
ensure that FAPE is available to any individual child with a disability 
who needs special education and related services, even though the child 
has not failed or been retained in a course or grade, and is advancing 
from grade to grade.
    (2) The determination that a child described in paragraph (a) 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 
eligibility determinations.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.102  Limitation--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 of those ages.
    (2)(i) Children 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. 300.8; 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 children with disabilities, aged 18 through 21, who--
    (A) Had been identified as a child with a disability under Sec. 
300.8 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. 
300.8.
    (3)(i) Children 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 children who have graduated from high school but have not been 
awarded a regular high school diploma.
    (iii) Graduation from high school with a regular high school diploma 
constitutes a change in placement, requiring written prior notice in 
accordance with Sec. 300.503.
    (iv) As used in paragraphs (a)(3)(i) through (a)(3)(iii) of this 
section, the term regular high school diploma does not include an 
alternative degree that is not fully aligned with the State's academic 
standards, such as a certificate or a general educational development 
credential (GED).
    (4) Children with disabilities who are eligible under subpart H of 
this part, but who receive early intervention services under Part C of 
the Act.
    (b) Documents relating to exceptions. The State must assure that the 
information it has provided to the Secretary regarding the exceptions in 
paragraph (a) of this section, as required by Sec. 300.700 (for 
purposes of making grants to States under this part), is current and 
accurate.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

                         Other FAPE Requirements



Sec. 300.103  FAPE--methods and payments.

    (a) Each State may use whatever State, local, Federal, and private 
sources of support that 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

[[Page 25]]

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 Sec. 300.323(c), 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]



Sec. 300.104  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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.105  Assistive technology.

    (a) Each public agency must ensure that assistive technology devices 
or assistive technology services, or both, as those terms are defined in 
Sec. Sec. 300.5 and 300.6, respectively, are made available to a child 
with a disability if required as a part of the child's--
    (1) Special education under Sec. 300.36;
    (2) Related services under Sec. 300.34; or
    (3) Supplementary aids and services under Sec. Sec. 300.38 and 
300.114(a)(2)(ii).
    (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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(B)(i))



Sec. 300.106  Extended school year services.

    (a) General. (1) Each public agency must 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 
Sec. Sec. 300.320 through 300.324, 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.107  Nonacademic services.

    The State must ensure the following:
    (a) Each public agency must take steps, including the provision of 
supplementary aids and services determined appropriate and necessary by 
the child's IEP Team, 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,

[[Page 26]]

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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.108  Physical education.

    The State must ensure that public agencies in the State comply with 
the following:
    (a) General. Physical education services, specially designed if 
necessary, must be made available to every child with a disability 
receiving FAPE, unless the public agency enrolls children without 
disabilities and does not provide physical education to children without 
disabilities in the same grades.
    (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 must 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 must ensure that the child receives appropriate 
physical education services in compliance with this section.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.109  Full educational opportunity goal (FEOG).

    The State must have in effect policies and procedures to demonstrate 
that the State has established a goal of providing full educational 
opportunity to all children with disabilities, aged birth through 21, 
and a detailed timetable for accomplishing that goal.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.110  Program options.

    The State must ensure that each public agency takes 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.111  Child find.

    (a) General. (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 who are homeless children or are wards of the 
State, and 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.
    (b) Use of term developmental delay. The following provisions apply 
with respect to implementing the child find requirements of this 
section:
    (1) A State that adopts a definition of developmental delay under 
Sec. 300.8(b) determines whether the term applies to children aged 
three through nine, or to a subset of that age range (e.g., ages three 
through five).
    (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. 300.8(b), the LEA must conform to both the State's 
definition of that term

[[Page 27]]

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.
    (c) Other children in child find. Child find also must include--
    (1) Children who are suspected of being a child with a disability 
under Sec. 300.8 and in need of special education, even though they are 
advancing from grade to grade; and
    (2) Highly mobile children, including migrant children.
    (d) Construction. Nothing in the Act requires that children be 
classified by their disability so long as each child who has a 
disability that is listed in Sec. 300.8 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1401(3)); 1412(a)(3))



Sec. 300.112  Individualized education programs (IEP).

    The State must ensure 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 Sec. Sec. 
300.320 through 300.324, except as provided in Sec. 300.300(b)(3)(ii).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.113  Routine checking of hearing aids and external components of
surgically implanted medical devices.

    (a) Hearing aids. Each public agency must ensure that hearing aids 
worn in school by children with hearing impairments, including deafness, 
are functioning properly.
    (b) External components of surgically implanted medical devices. (1) 
Subject to paragraph (b)(2) of this section, each public agency must 
ensure that the external components of surgically implanted medical 
devices are functioning properly.
    (2) For a child with a surgically implanted medical device who is 
receiving special education and related services under this part, a 
public agency is not responsible for the post-surgical maintenance, 
programming, or replacement of the medical device that has been 
surgically implanted (or of an external component of the surgically 
implanted medical device).

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1401(1), 1401(26)(B))

                   Least Restrictive Environment (LRE)



Sec. 300.114  LRE requirements.

    (a) General. (1) Except as provided in Sec. 300.324(d)(2) 
(regarding children with disabilities in adult prisons), the State must 
have in effect policies and procedures to ensure that public agencies in 
the State meet the LRE requirements of this section and Sec. Sec. 
300.115 through 300.120.
    (2) Each public agency must ensure that--
    (i) 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
    (ii) 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.
    (b) Additional requirement--State funding mechanism--(1) General. 
(i) A State funding mechanism must not result in placements that violate 
the requirements of paragraph (a) of this section; and
    (ii) A State must not use a funding mechanism by which the State 
distributes funds on the basis of the type of setting in which a child 
is served that will result in the failure to provide a child with a 
disability FAPE according to the unique needs of the child, as described 
in the child's IEP.
    (2) Assurance. If the State does not have policies and procedures to 
ensure

[[Page 28]]

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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.115  Continuum of alternative placements.

    (a) Each public agency must ensure that a continuum of alternative 
placements is available to meet the needs of children with disabilities 
for special education and related services.
    (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. 300.38 (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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.116  Placements.

    In determining the educational placement of a child with a 
disability, including a preschool child with a disability, each public 
agency must 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 Sec. Sec. 300.114 through 300.118;
    (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 education curriculum.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.117  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. 300.107, 
each public agency must ensure that each child with a disability 
participates with nondisabled children in the extracurricular services 
and activities to the maximum extent appropriate to the needs of that 
child. The public agency must ensure that each child with a disability 
has the supplementary aids and services determined by the child's IEP 
Team to be appropriate and necessary for the child to participate in 
nonacademic settings.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.118  Children in public or private institutions.

    Except as provided in Sec. 300.149(d) (regarding agency 
responsibility for general supervision of some individuals in adult 
prisons), an SEA must ensure that Sec. 300.114 is effectively 
implemented, including, if necessary, making arrangements with public 
and private institutions (such as a memorandum of agreement or special 
implementation procedures).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

[[Page 29]]



Sec. 300.119  Technical assistance and training activities.

    Each SEA must carry out activities to ensure that teachers and 
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for implementing 
Sec. 300.114; and
    (b) Are provided with technical assistance and training necessary to 
assist them in this effort.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.120  Monitoring activities.

    (a) The SEA must carry out activities to ensure that Sec. 300.114 
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that 
are inconsistent with Sec. 300.114, the SEA must--
    (1) Review the public agency's justification for its actions; and
    (2) Assist in planning and implementing any necessary corrective 
action.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

                   Additional Eligibility Requirements



Sec. 300.121  Procedural safeguards.

    (a) General. The State must have procedural safeguards in effect to 
ensure that each public agency in the State meets the requirements of 
Sec. Sec. 300.500 through 300.536.
    (b) Procedural safeguards identified. Children with disabilities and 
their parents must be afforded the procedural safeguards identified in 
paragraph (a) of this section.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.122  Evaluation.

    Children with disabilities must be evaluated in accordance with 
Sec. Sec. 300.300 through 300.311 of subpart D of this part.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.123  Confidentiality of personally identifiable information.

    The State must have policies and procedures in effect to ensure that 
public agencies in the State comply with Sec. Sec. 300.610 through 
300.626 related to protecting the confidentiality of any personally 
identifiable information collected, used, or maintained under Part B of 
the Act.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.124  Transition of children from the Part C program to preschool
programs.

    The State must have in effect 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)(9) 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. 300.323(b) and section 
636(d) of the Act, an IFSP, has been developed and is being implemented 
for the child consistent with Sec. 300.101(b); and
    (c) Each affected LEA will participate in transition planning 
conferences arranged by the designated lead agency under section 
635(a)(10) of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. Sec. 300.125-300.128  [Reserved]

                       Children in Private Schools



Sec. 300.129  State responsibility regarding children in private schools.

    The State must have in effect policies and procedures that ensure 
that LEAs, and, if applicable, the SEA, meet

[[Page 30]]

the private school requirements in Sec. Sec. 300.130 through 300.148.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

 Children With Disabilities Enrolled by Their Parents in Private Schools



Sec. 300.130  Definition of parentally-placed private school children with
disabilities.

    Parentally-placed private school children with disabilities means 
children with disabilities enrolled by their parents in private, 
including religious, schools or facilities that meet the definition of 
elementary school in Sec. 300.13 or secondary school in Sec. 300.36, 
other than children with disabilities covered under Sec. Sec. 300.145 
through 300.147.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.131  Child find for parentally-placed private school children
with disabilities.

    (a) General. Each LEA must locate, identify, and evaluate all 
children with disabilities who are enrolled by their parents in private, 
including religious, elementary schools and secondary schools located in 
the school district served by the LEA, in accordance with paragraphs (b) 
through (e) of this section, and Sec. Sec. 300.111 and 300.201.
    (b) Child find design. The child find process must be designed to 
ensure--
    (1) The equitable participation of parentally-placed private school 
children; and
    (2) An accurate count of those children.
    (c) Activities. In carrying out the requirements of this section, 
the LEA, or, if applicable, the SEA, must undertake activities similar 
to the activities undertaken for the agency's public school children.
    (d) Cost. The cost of carrying out the child find requirements in 
this section, including individual evaluations, may not be considered in 
determining if an LEA has met its obligation under Sec. 300.133.
    (e) Completion period. The child find process must be completed in a 
time period comparable to that for students attending public schools in 
the LEA consistent with Sec. 300.301.
    (f) Out-of-State children. Each LEA in which private, including 
religious, elementary schools and secondary schools are located must, in 
carrying out the child find requirements in this section, include 
parentally-placed private school children who reside in a State other 
than the State in which the private schools that they attend are 
located.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.132  Provision of services for parentally-placed private school
children with disabilities--basic requirement.

    (a) General. To the extent consistent with the number and location 
of children with disabilities who are enrolled by their parents in 
private, including religious, elementary schools and secondary schools 
located in the school district served by the LEA, provision is made for 
the participation of those children in the program assisted or carried 
out under Part B of the Act by providing them with special education and 
related services, including direct services determined in accordance 
with Sec. 300.137, unless the Secretary has arranged for services to 
those children under the by-pass provisions in Sec. Sec. 300.190 
through 300.198.
    (b) Services plan for parentally-placed private school children with 
disabilities. In accordance with paragraph (a) of this section and 
Sec. Sec. 300.137 through 300.139, a services plan must be developed 
and implemented for each private school child with a disability who has 
been designated by the LEA in which the private school is located to 
receive special education and related services under this part.
    (c) Record keeping. Each LEA must maintain in its records, and 
provide to the SEA, the following information related to parentally-
placed private school children covered under Sec. Sec. 300.130 through 
300.144:
    (1) The number of children evaluated;
    (2) The number of children determined to be children with 
disabilities; and

[[Page 31]]

    (3) The number of children served.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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



Sec. 300.133  Expenditures.

    (a) Formula. To meet the requirement of Sec. 300.132(a), each LEA 
must spend the following on providing special education and related 
services (including direct services) to parentally-placed 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(f) of the Act 
as the number of private school children with disabilities aged 3 
through 21 who are enrolled by their parents in private, including 
religious, elementary schools and secondary schools located in the 
school district served by the LEA, is to the total number of children 
with disabilities in its jurisdiction aged 3 through 21.
    (2)(i) For children aged three through five, an amount that is the 
same proportion of the LEA's total subgrant under section 619(g) of the 
Act as the number of parentally-placed private school children with 
disabilities aged three through five who are enrolled by their parents 
in a private, including religious, elementary school located in the 
school district served by the LEA, is to the total number of children 
with disabilities in its jurisdiction aged three through five.
    (ii) As described in paragraph (a)(2)(i) of this section, children 
aged three through five are considered to be parentally-placed private 
school children with disabilities enrolled by their parents in private, 
including religious, elementary schools, if they are enrolled in a 
private school that meets the definition of elementary school in Sec. 
300.13.
    (3) If an LEA has not expended for equitable services all of the 
funds described in paragraphs (a)(1) and (a)(2) of this section by the 
end of the fiscal year for which Congress appropriated the funds, the 
LEA must obligate the remaining funds for special education and related 
services (including direct services) to parentally-placed private school 
children with disabilities during a carry-over period of one additional 
year.
    (b) Calculating proportionate amount. In calculating the 
proportionate amount of Federal funds to be provided for parentally-
placed private school children with disabilities, the LEA, after timely 
and meaningful consultation with representatives of private schools 
under Sec. 300.134, must conduct a thorough and complete child find 
process to determine the number of parentally-placed children with 
disabilities attending private schools located in the LEA. (See Appendix 
B for an example of how proportionate share is calculated).
    (c) Annual count of the number of parentally-placed private school 
children with disabilities. (1) Each LEA must--
    (i) After timely and meaningful consultation with representatives of 
parentally-placed private school children with disabilities (consistent 
with Sec. 300.134), determine the number of parentally-placed private 
school children with disabilities attending private schools located in 
the LEA; and
    (ii) Ensure that the count is conducted on any date between October 
1 and December 1, inclusive, of each year.
    (2) The count must be used to determine the amount that the LEA must 
spend on providing special education and related services to parentally-
placed private school children with disabilities in the next subsequent 
fiscal year.
    (d) Supplement, not supplant. State and local funds may supplement 
and in no case supplant the proportionate amount of Federal funds 
required to be expended for parentally-placed private school children 
with disabilities under this part.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.134  Consultation.

    To ensure timely and meaningful consultation, an LEA, or, if 
appropriate, an SEA, must consult with private school representatives 
and representatives of parents of parentally-

[[Page 32]]

placed private school children with disabilities during the design and 
development of special education and related services for the children 
regarding the following:
    (a) Child find. The child find process, including--
    (1) How parentally-placed private school children suspected of 
having a disability can participate equitably; and
    (2) How parents, teachers, and private school officials will be 
informed of the process.
    (b) Proportionate share of funds. The determination of the 
proportionate share of Federal funds available to serve parentally-
placed private school children with disabilities under Sec. 300.133(b), 
including the determination of how the proportionate share of those 
funds was calculated.
    (c) Consultation process. The consultation process among the LEA, 
private school officials, and representatives of parents of parentally-
placed private school children with disabilities, including how the 
process will operate throughout the school year to ensure that 
parentally-placed children with disabilities identified through the 
child find process can meaningfully participate in special education and 
related services.
    (d) Provision of special education and related services. How, where, 
and by whom special education and related services will be provided for 
parentally-placed private school children with disabilities, including a 
discussion of--
    (1) The types of services, including direct services and alternate 
service delivery mechanisms; and
    (2) How special education and related services will be apportioned 
if funds are insufficient to serve all parentally-placed private school 
children; and
    (3) How and when those decisions will be made;
    (e) Written explanation by LEA regarding services. How, if the LEA 
disagrees with the views of the private school officials on the 
provision of services or the types of services (whether provided 
directly or through a contract), the LEA will provide to the private 
school officials a written explanation of the reasons why the LEA chose 
not to provide services directly or through a contract.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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



Sec. 300.135  Written affirmation.

    (a) When timely and meaningful consultation, as required by Sec. 
300.134, has occurred, the LEA must obtain a written affirmation signed 
by the representatives of participating private schools.
    (b) If the representatives do not provide the affirmation within a 
reasonable period of time, the LEA must forward the documentation of the 
consultation process to the SEA.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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



Sec. 300.136  Compliance.

    (a) General. A private school official has the right to submit a 
complaint to the SEA that the LEA--
    (1) Did not engage in consultation that was meaningful and timely; 
or
    (2) Did not give due consideration to the views of the private 
school official.
    (b) Procedure. (1) If the private school official wishes to submit a 
complaint, the official must provide to the SEA the basis of the 
noncompliance by the LEA with the applicable private school provisions 
in this part; and
    (2) The LEA must forward the appropriate documentation to the SEA.
    (3)(i) If the private school official is dissatisfied with the 
decision of the SEA, the official may submit a complaint to the 
Secretary by providing the information on noncompliance described in 
paragraph (b)(1) of this section; and
    (ii) The SEA must forward the appropriate documentation to the 
Secretary.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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

[[Page 33]]



Sec. 300.137  Equitable services determined.

    (a) No individual right to special education and related services. 
No parentally-placed 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.
    (b) Decisions. (1) Decisions about the services that will be 
provided to parentally-placed private school children with disabilities 
under Sec. Sec. 300.130 through 300.144 must be made in accordance with 
paragraph (c) of this section and Sec. 300.134(d).
    (2) The LEA must make the final decisions with respect to the 
services to be provided to eligible parentally-placed private school 
children with disabilities.
    (c) Services plan for each child served under Sec. Sec. 300.130 
through 300.144. If a child with a disability is enrolled in a religious 
or other private school by the child's parents and will receive special 
education or related services from an LEA, the LEA must--
    (1) Initiate and conduct meetings to develop, review, and revise a 
services plan for the child, in accordance with Sec. 300.138(b); and
    (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 religious or 
other private school, including individual or conference telephone 
calls.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]



Sec. 300.138  Equitable services provided.

    (a) General. (1) The services provided to parentally-placed private 
school children with disabilities must be provided by personnel meeting 
the same standards as personnel providing services in the public 
schools, except that private elementary school and secondary school 
teachers who are providing equitable services to parentally-placed 
private school children with disabilities do not have to meet the highly 
qualified special education teacher requirements of Sec. 300.18.
    (2) Parentally-placed private school children with disabilities may 
receive a different amount of services than children with disabilities 
in public schools.
    (b) Services provided in accordance with a services plan. (1) Each 
parentally-placed private school child with a disability who has been 
designated to receive services under Sec. 300.132 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 Sec. Sec. 300.134 
and 300.137, it will make available to parentally-placed private school 
children with disabilities.
    (2) The services plan must, to the extent appropriate--
    (i) Meet the requirements of Sec. 300.320, or for a child ages 
three through five, meet the requirements of Sec. 300.323(b) with 
respect to the services provided; and
    (ii) Be developed, reviewed, and revised consistent with Sec. Sec. 
300.321 through 300.324.
    (c) Provision of equitable services. (1) The provision of services 
pursuant to this section and Sec. Sec. 300.139 through 300.143 must be 
provided:
    (i) By employees of a public agency; or
    (ii) Through contract by the public agency with an individual, 
association, agency, organization, or other entity.
    (2) Special education and related services provided to parentally-
placed private school children with disabilities, including materials 
and equipment, must be secular, neutral, and nonideological.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.139  Location of services and transportation.

    (a) Services on private school premises. Services to parentally-
placed private school children with disabilities may be provided on the 
premises of private, including religious, schools, to the extent 
consistent with law.

[[Page 34]]

    (b) Transportation--(1) General. (i) If necessary for the child to 
benefit from or participate in the services provided under this part, a 
parentally-placed 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. 300.133.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.140  Due process complaints and State complaints.

    (a) Due process not applicable, except for child find. (1) Except as 
provided in paragraph (b) of this section, the procedures in Sec. Sec. 
300.504 through 300.519 do not apply to complaints that an LEA has 
failed to meet the requirements of Sec. Sec. 300.132 through 300.139, 
including the provision of services indicated on the child's services 
plan.
    (b) Child find complaints--to be filed with the LEA in which the 
private school is located. (1) The procedures in Sec. Sec. 300.504 
through 300.519 apply to complaints that an LEA has failed to meet the 
child find requirements in Sec. 300.131, including the requirements in 
Sec. Sec. 300.300 through 300.311.
    (2) Any due process complaint regarding the child find requirements 
(as described in paragraph (b)(1) of this section) must be filed with 
the LEA in which the private school is located and a copy must be 
forwarded to the SEA.
    (c) State complaints. (1) Any complaint that an SEA or LEA has 
failed to meet the requirements in Sec. Sec. 300.132 through 300.135 
and 300.137 through 300.144 must be filed in accordance with the 
procedures described in Sec. Sec. 300.151 through 300.153.
    (2) A complaint filed by a private school official under Sec. 
300.136(a) must be filed with the SEA in accordance with the procedures 
in Sec. 300.136(b).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.141  Requirement that funds not benefit a private school.

    (a) An LEA may not use funds provided under section 611 or 619 of 
the Act to finance the existing level of instruction in a private school 
or to otherwise benefit the private school.
    (b) The LEA must use funds provided under Part B of the Act to meet 
the special education and related services needs of parentally-placed 
private school children with disabilities, but not for meeting--
    (1) The needs of a private school; or
    (2) The general needs of the students enrolled in the private 
school.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.142  Use of personnel.

    (a) 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--
    (1) To the extent necessary to provide services under Sec. Sec. 
300.130 through 300.144 for parentally-placed private school children 
with disabilities; and
    (2) If those services are not normally provided by the private 
school.
    (b) Use of private school personnel. An LEA may use funds available 
under sections 611 and 619 of the Act to pay for the services of an 
employee of a private school to provide services under Sec. Sec. 
300.130 through 300.144 if--
    (1) The employee performs the services outside of his or her regular 
hours of duty; and
    (2) The employee performs the services under public supervision and 
control.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.143  Separate classes prohibited.

    An LEA may not use funds available under section 611 or 619 of the 
Act for

[[Page 35]]

classes that are organized separately on the basis of school enrollment 
or religion of the children if--'
    (a) The classes are at the same site; and
    (b) The classes include children enrolled in public schools and 
children enrolled in private schools.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.144  Property, equipment, and supplies.

    (a) A public agency must control and administer the funds used to 
provide special education and related services under Sec. Sec. 300.137 
through 300.139, and hold title to and administer materials, equipment, 
and property purchased with those funds for the uses and purposes 
provided in the Act.
    (b) The public agency may place equipment and supplies in a private 
school for the period of time needed for the Part B program.
    (c) The public agency must 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 must 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

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



Sec. 300.145  Applicability of Sec. Sec. 300.146 through 300.147.

    Sections 300.146 through 300.147 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.146  Responsibility of SEA.

    Each SEA must 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 
Sec. Sec. 300.320 through 300.325; 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, except for Sec. 300.18 and Sec. 300.156(c); and
    (c) Has all of the rights of a child with a disability who is served 
by a public agency.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.147  Implementation by SEA.

    In implementing Sec. 300.146, the SEA must--
    (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

[[Page 36]]

    (c) Provide an opportunity for those private schools and facilities 
to participate in the development and revision of State standards that 
apply to them.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(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. 300.148  Placement of children by parents when 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 must 
include that child in the population whose needs are addressed 
consistent with Sec. Sec. 300.131 through 300.144.
    (b) Disagreements about FAPE. Disagreements between the parents and 
a public agency regarding the availability of a program appropriate for 
the child, and the question of financial reimbursement, are subject to 
the due process procedures in Sec. Sec. 300.504 through 300.520.
    (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 school, 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 paragraph (c) of this section may be reduced or denied--
    (1) If--
    (i) At the most recent IEP Team 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--
    (1) Must not be reduced or denied for failure to provide the notice 
if--
    (i) The school prevented the parents from providing the notice;
    (ii) The parents had not received notice, pursuant to Sec. 300.504, 
of the notice requirement in paragraph (d)(1) of this section; or
    (iii) Compliance with paragraph (d)(1) of this section would likely 
result in physical harm to the child; and
    (2) May, in the discretion of the court or a hearing officer, not be 
reduced or denied for failure to provide this notice if--
    (i) The parents are not literate or cannot write in English; or

[[Page 37]]

    (ii) Compliance with paragraph (d)(1) of this section would likely 
result in serious emotional harm to the child.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

    SEA Responsibility for General Supervision and Implementation of 
                          Procedural Safeguards



Sec. 300.149  SEA responsibility for general supervision.

    (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 (but not including elementary schools 
and secondary schools for Indian children operated or funded by the 
Secretary of the Interior)--
    (i) Is under the general supervision of the persons responsible for 
educational programs for children with disabilities in the SEA; and
    (ii) Meets the educational standards of the SEA (including the 
requirements of this part).
    (3) In carrying out this part with respect to homeless children, the 
requirements of subtitle B of title VII of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11431 et seq.) are met.
    (b) The State must have in effect policies and procedures to ensure 
that it complies with the monitoring and enforcement requirements in 
Sec. Sec. 300.600 through 300.602 and Sec. Sec. 300.606 through 
300.608.
    (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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(11); 1416)



Sec. 300.150  SEA implementation of procedural safeguards.

    The SEA (and any agency assigned responsibility pursuant to Sec. 
300.149(d)) must have in effect procedures 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

                       State Complaint Procedures



Sec. 300.151  Adoption of State complaint procedures.

    (a) General. Each SEA must 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. 300.153 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 procedures under Sec. Sec. 300.151 
through 300.153.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which the SEA 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) The failure to provide appropriate services, including 
corrective action appropriate to address the needs of the child (such as 
compensatory services or monetary reimbursement); and

[[Page 38]]

    (2) Appropriate future provision of services for all children with 
disabilities.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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



Sec. 300.152  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA must include in its 
complaint procedures a time limit of 60 days after a complaint is filed 
under Sec. 300.153 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) Provide the public agency with the opportunity to respond to the 
complaint, including, at a minimum--
    (i) At the discretion of the public agency, a proposal to resolve 
the complaint; and
    (ii) An opportunity for a parent who has filed a complaint and the 
public agency to voluntarily engage in mediation consistent with Sec. 
300.506;
    (4) 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
    (5) 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--
    (i) Exceptional circumstances exist with respect to a particular 
complaint; or
    (ii) The parent (or individual or organization, if mediation or 
other alternative means of dispute resolution is available to the 
individual or organization under State procedures) and the public agency 
involved agree to extend the time to engage in mediation pursuant to 
paragraph (a)(3)(ii) of this section, or to engage in other alternative 
means of dispute resolution, if available in the State; and
    (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 Sec. 300.507 and Sec. Sec. 300.530 through 300.532. (1) If a 
written complaint is received that is also the subject of a due process 
hearing under Sec. 300.507 or Sec. Sec. 300.530 through 300.532, 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 raised in a complaint filed under this section has 
previously been decided in a due process hearing involving the same 
parties--
    (i) The due process hearing decision is binding on that issue; 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 hearing decision must be resolved by the SEA.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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



Sec. 300.153  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Sec. Sec. 300.151 through 
300.152.
    (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;
    (2) The facts on which the statement is based;

[[Page 39]]

    (3) The signature and contact information for the complainant; and
    (4) If alleging violations with respect to a specific child--
    (i) The name and address of the residence of the child;
    (ii) The name of the school the child is attending;
    (iii) In the case of a homeless child or youth (within the meaning 
of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 
U.S.C. 11434a(2)), available contact information for the child, and the 
name of the school the child is attending;
    (iv) A description of the nature of the problem of the child, 
including facts relating to the problem; and
    (v) A proposed resolution of the problem to the extent known and 
available to the party at the time the complaint is filed.
    (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. 300.151.
    (d) The party filing the complaint must forward a copy of the 
complaint to the LEA or public agency serving the child at the same time 
the party files the complaint with the SEA.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0600)

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

                      Methods of Ensuring Services



Sec. 300.154  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief Executive 
Officer of a State or designee of that officer must 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) 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) The conditions, terms, and procedures under which an LEA must be 
reimbursed by other agencies.
    (3) 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) 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)(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. 300.34 relating to related 
services, Sec. 300.41 relating to supplementary aids and services, and 
Sec. 300.42 relating to transition services) that are necessary for 
ensuring FAPE to children with disabilities within the State, the public 
agency must fulfill that obligation or responsibility, either directly 
or through contract or other arrangement pursuant to paragraph (a) of 
this section or an agreement pursuant to paragraph (c) of this section.
    (ii) A noneducational public agency described in paragraph (b)(1)(i) 
of this section may not disqualify an eligible

[[Page 40]]

service for Medicaid reimbursement because that service is provided in a 
school context.
    (2) 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) must provide or pay for 
these services to the child in a timely manner. The LEA or State agency 
is authorized to claim reimbursement for the services from the 
noneducational public agency that failed to provide or pay for these 
services and that agency must reimburse the LEA or State agency in 
accordance with the terms of the interagency agreement or other 
mechanism described in paragraph (a) 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 and approved 
by the Secretary.
    (d) Children with disabilities who are covered by public benefits or 
insurance. (1) A public agency may use the Medicaid or other public 
benefits or insurance programs in which a child participates to provide 
or pay for services required under this part, as permitted under the 
public benefits or insurance program, except as provided in paragraph 
(d)(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 
benefits or 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 parents 
otherwise would be required to pay;
    (iii) May not use a child's benefits under a public benefits or 
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 benefits or 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 benefits or 
insurance; or
    (D) Risk loss of eligibility for home and community-based waivers, 
based on aggregate health-related expenditures; and
    (iv)(A) Must obtain parental consent, consistent with Sec. 300.9, 
each time that access to public benefits or insurance is sought; and
    (B) Notify parents that the parents' refusal to allow access to 
their public benefits or insurance does not relieve the public agency of 
its responsibility to ensure that all required services are provided at 
no cost to the parents.
    (e) 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 the parents' private 
insurance proceeds only if the parents provide consent consistent with 
Sec. 300.9.
    (2) Each time the public agency proposes to access the parents' 
private insurance proceeds, the agency must--
    (i) Obtain parental consent in accordance with paragraph (e)(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.
    (f) Use of Part B funds. (1) If a public agency is unable to obtain 
parental consent to use the parents' private insurance, or public 
benefits or insurance when the parents would incur a cost for a 
specified service required under this part, to ensure FAPE the public 
agency

[[Page 41]]

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 benefits or insurance if the parents 
would incur a cost, the public agency may use its Part B funds to pay 
the cost that the parents otherwise would have to pay to use the 
parents' benefits or insurance (e.g., the deductible or co-pay amounts).
    (g) Proceeds from public benefits or insurance or private insurance. 
(1) Proceeds from public benefits or insurance 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 Sec. Sec. 300.163 and 300.203.
    (h) 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 benefits or insurance program by Federal statute, 
regulations or policy under title XIX, or title XXI of the Social 
Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa through 
1397jj, or any other public benefits or insurance program.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(12) and (e))

                   Additional Eligibility Requirements



Sec. 300.155  Hearings relating to LEA eligibility.

    The SEA must 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).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.156  Personnel qualifications.

    (a) General. The SEA must establish and maintain qualifications to 
ensure that personnel necessary to carry out the purposes of this part 
are appropriately and adequately prepared and trained, including that 
those personnel have the content knowledge and skills to serve children 
with disabilities.
    (b) Related services personnel and paraprofessionals. The 
qualifications under paragraph (a) of this section must include 
qualifications for related services personnel and paraprofessionals 
that--
    (1) Are consistent with any State-approved or State-recognized 
certification, licensing, registration, or other comparable requirements 
that apply to the professional discipline in which those personnel are 
providing special education or related services; and
    (2) Ensure that related services personnel who deliver services in 
their discipline or profession--
    (i) Meet the requirements of paragraph (b)(1) of this section; and
    (ii) Have not had certification or licensure requirements waived on 
an emergency, temporary, or provisional basis; and
    (iii) Allow paraprofessionals and assistants who are appropriately 
trained and supervised, in accordance with State law, regulation, or 
written policy, in meeting the requirements of this part to be used to 
assist in the provision of special education and related services under 
this part to children with disabilities.
    (c) Qualifications for special education teachers. The 
qualifications described in paragraph (a) of this section must ensure 
that each person employed as a public school special education teacher 
in the State who teaches in an elementary school, middle school, or 
secondary school is highly qualified as a special education teacher by 
the deadline established in section 1119(a)(2) of the ESEA.
    (d) Policy. In implementing this section, a State must adopt a 
policy that includes a requirement that LEAs in the State take 
measurable steps to recruit, hire, train, and retain highly qualified 
personnel to provide special education and related services under this 
part to children with disabilities.
    (e) Rule of construction. Notwithstanding any other individual right 
of action that a parent or student may maintain under this part, nothing 
in this part shall be construed to create a

[[Page 42]]

right of action on behalf of an individual student or a class of 
students for the failure of a particular SEA or LEA employee to be 
highly qualified, or to prevent a parent from filing a complaint about 
staff qualifications with the SEA as provided for under this part.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.157  Performance goals and indicators.

    The State must--
    (a) Have in effect established goals for the performance of children 
with disabilities in the State that--
    (1) Promote the purposes of this part, as stated in Sec. 300.1;
    (2) Are the same as the State's objectives for progress by children 
in its definition of adequate yearly progress, including the State's 
objectives for progress by children with disabilities, under section 
1111(b)(2)(C) of the ESEA, 20 U.S.C. 6311;
    (3) Address graduation rates and dropout rates, as well as such 
other factors as the State may determine; and
    (4) Are consistent, to the extent appropriate, with any other goals 
and academic standards for children established by the State;
    (b) Have in effect established performance indicators the State will 
use to assess progress toward achieving the goals described in paragraph 
(a) of this section, including measurable annual objectives for progress 
by children with disabilities under section 1111(b)(2)(C)(v)(II)(cc) of 
the ESEA, 20 U.S.C. 6311; and
    (c) Annually 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, which 
may include elements of the reports required under section 1111(h) of 
the ESEA.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. Sec. 300.158-300.159  [Reserved]



Sec. 300.160  Participation in assessments.

    (a) General. A State must ensure that all children with disabilities 
are included in all general State and district-wide assessment programs, 
including assessments described under section 1111 of the ESEA, 20 
U.S.C. 6311, with appropriate accommodations and alternate assessments, 
if necessary, as indicated in their respective IEPs.
    (b) Accommodation guidelines. (1) A State (or, in the case of a 
district-wide assessment, an LEA) must develop guidelines for the 
provision of appropriate accommodations.
    (2) The State's (or, in the case of a district-wide assessment, the 
LEA's) guidelines must--
    (i) Identify only those accommodations for each assessment that do 
not invalidate the score; and
    (ii) Instruct IEP Teams to select, for each assessment, only those 
accommodations that do not invalidate the score.
    (c) Alternate assessments. (1) A State (or, in the case of a 
district-wide assessment, an LEA) must develop and implement alternate 
assessments and guidelines for the participation of children with 
disabilities in alternate assessments for those children who cannot 
participate in regular assessments, even with accommodations, as 
indicated in their respective IEPs, as provided in paragraph (a) of this 
section.
    (2) For assessing the academic progress of students with 
disabilities under Title I of the ESEA, the alternate assessments and 
guidelines in paragraph (c)(1) of this section must provide for 
alternate assessments that--
    (i) Are aligned with the State's challenging academic content 
standards and challenging student academic achievement standards;
    (ii) If the State has adopted modified academic achievement 
standards permitted in 34 CFR 200.1(e), measure the achievement of 
children with disabilities meeting the State's criteria under Sec. 
200.1(e)(2) against those standards; and
    (iii) If the State has adopted alternate academic achievement 
standards permitted in 34 CFR 200.1(d), measure

[[Page 43]]

the achievement of children with the most significant cognitive 
disabilities against those standards.
    (d) Explanation to IEP Teams. A State (or in the case of a district-
wide assessment, an LEA) must provide IEP Teams with a clear explanation 
of the differences between assessments based on grade-level academic 
achievement standards and those based on modified or alternate academic 
achievement standards, including any effects of State or local policies 
on the student's education resulting from taking an alternate assessment 
based on alternate or modified academic achievement standards (such as 
whether only satisfactory performance on a regular assessment would 
qualify a student for a regular high school diploma).
    (e) Inform parents. A State (or in the case of a district-wide 
assessment, an LEA) must ensure that parents of students selected to be 
assessed based on alternate or modified academic achievement standards 
are informed that their child's achievement will be measured based on 
alternate or modified academic achievement standards.
    (f) Reports. An SEA (or, in the case of a district-wide assessment, 
an LEA) must 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:
    (1) The number of children with disabilities participating in 
regular assessments, and the number of those children who were provided 
accommodations (that did not result in an invalid score) in order to 
participate in those assessments.
    (2) The number of children with disabilities, if any, participating 
in alternate assessments based on grade-level academic achievement 
standards.
    (3) The number of children with disabilities, if any, participating 
in alternate assessments based on modified academic achievement 
standards.
    (4) The number of children with disabilities, if any, participating 
in alternate assessments based on alternate academic achievement 
standards.
    (5) Compared with the achievement of all children, including 
children with disabilities, the performance results of children with 
disabilities on regular assessments, alternate assessments based on 
grade-level academic achievement standards, alternate assessments based 
on modified academic achievement standards, and alternate assessments 
based on alternate academic achievement standards if--
    (i) The number of children participating in those assessments is 
sufficient to yield statistically reliable information; and
    (ii) Reporting that information will not reveal personally 
identifiable information about an individual student on those 
assessments.
    (g) Universal design. An SEA (or, in the case of a district-wide 
assessment, an LEA) must, to the extent possible, use universal design 
principles in developing and administering any assessments under this 
section.

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

[72 FR 17781, Apr. 9, 2007]



Sec. 300.161  [Reserved]



Sec. 300.162  Supplementation of State, local, and other Federal funds.

    (a) Expenditures. Funds paid to a State under this part must be 
expended in accordance with all the provisions of this part.
    (b) Prohibition against commingling. (1) Funds paid to a State under 
this part must not be commingled with State funds.
    (2) The requirement in paragraph (b)(1) of this section is satisfied 
by the use of a separate accounting system that includes an audit trail 
of the expenditure of funds paid to a State under this part. Separate 
bank accounts are not required. (See 34 CFR 76.702 (Fiscal control and 
fund accounting procedures).)
    (c) State-level nonsupplanting. (1) Except as provided in Sec. 
300.203, 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 those 
Federal, State, and local funds.
    (2) If the State provides clear and convincing evidence that all 
children

[[Page 44]]

with disabilities have available to them FAPE, the Secretary may waive, 
in whole or in part, the requirements of paragraph (c)(1) of this 
section if the Secretary concurs with the evidence provided by the State 
under Sec. 300.164.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]



Sec. 300.163  Maintenance of State financial support.

    (a) General. A State must 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. 300.164 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, 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 shall be the amount that would have been 
required in the absence of that failure and not the reduced level of the 
State's support.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.164  Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.

    (a) Except as provided under Sec. Sec. 300.202 through 300.205, 
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. 300.704(a) and (b) without regard to the prohibition on 
supplanting other funds.
    (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. 300.162 (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

[[Page 45]]

    (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. 300.111 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 Sec. Sec. 300.151 
through 300.153; and
    (D) The State's hearing procedures under Sec. Sec. 300.511 through 
300.516 and Sec. Sec. 300.530 through 300.536;
    (3) A summary of all State and Federal monitoring reports, and State 
complaint decisions (see Sec. Sec. 300.151 through 300.153) and hearing 
decisions (see Sec. Sec. 300.511 through 300.516 and Sec. Sec. 300.530 
through 300.536), 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. 300.167.
    (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.
    (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)(18)(A) of the Act and Sec. 300.164 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(17)(C), (18)(C)(ii))



Sec. 300.165  Public participation.

    (a) Prior to the adoption of any policies and procedures needed to 
comply with Part B of the Act (including any amendments to those 
policies and procedures), the State must ensure that 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.
    (b) Before submitting a State plan under this part, a State must 
comply with the public participation requirements in paragraph (a) of 
this section and those in 20 U.S.C. 1232d(b)(7).

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C. 1232d(b)(7))



Sec. 300.166  Rule of construction.

    In complying with Sec. Sec. 300.162 and 300.163, a State may not 
use funds paid to it under this part to satisfy State-

[[Page 46]]

law mandated funding obligations to LEAs, including funding based on 
student attendance or enrollment, or inflation.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

                          State Advisory Panel



Sec. 300.167  State advisory panel.

    The State must establish and maintain 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.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.168  Membership.

    (a) General. The advisory panel must consist of members appointed by 
the Governor, or any other official authorized under State law to make 
such appointments, be representative of the State population and be 
composed of individuals involved in, or concerned with the education of 
children with disabilities, including--
    (1) Parents of children with disabilities (ages birth through 26);
    (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, including officials who 
carry out activities under subtitle B of title VII of the McKinney-Vento 
Homeless Assistance Act, (42 U.S.C. 11431 et seq.);
    (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) Not less than one representative of a vocational, community, or 
business organization concerned with the provision of transition 
services to children with disabilities;
    (10) A representative from the State child welfare agency 
responsible for foster care; and
    (11) 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 
(ages birth through 26).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.169  Duties.

    The advisory panel must--
    (a) Advise the SEA of unmet needs within the State in the education 
of children with disabilities;
    (b) Comment publicly on any rules or regulations proposed by the 
State regarding the education of children with disabilities;
    (c) Advise the SEA in developing evaluations and reporting on data 
to the Secretary under section 618 of the Act;
    (d) Advise the SEA in developing corrective action plans to address 
findings identified in Federal monitoring reports under Part B of the 
Act; and
    (e) Advise the SEA in developing and implementing policies relating 
to the coordination of services for children with disabilities.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

             Other Provisions Required for State Eligibility



Sec. 300.170  Suspension and expulsion rates.

    (a) General. The SEA must examine data, including data disaggregated 
by race and ethnicity, 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 those 
agencies.

[[Page 47]]

    (b) Review and revision of policies. If the discrepancies described 
in paragraph (a) of this section are occurring, the SEA must review and, 
if appropriate, revise (or require the affected State agency or LEA to 
revise) its policies, procedures, and practices relating to the 
development and implementation of IEPs, the use of positive behavioral 
interventions and supports, and procedural safeguards, to ensure that 
these policies, procedures, and practices comply with the Act.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(22))



Sec. 300.171  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 administration and State-level 
activities under Sec. 300.704 will be used to meet the requirements of 
this part; and
    (2) How those amounts will be allocated among the activities 
described in Sec. 300.704 to meet State priorities based on input from 
LEAs.
    (b) If a State's plans for use of its funds under Sec. 300.704 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.
    (c) The provisions of this section do not apply to the Virgin 
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana 
Islands, and the freely associated States.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.172  Access to instructional materials.

    (a) General. The State must--
    (1) Adopt the National Instructional Materials Accessibility 
Standard (NIMAS), published as appendix C to part 300, for the purposes 
of providing instructional materials to blind persons or other persons 
with print disabilities, in a timely manner after publication of the 
NIMAS in the Federal Register on July 19, 2006 (71 FR 41084); and
    (2) Establish a State definition of ``timely manner'' for purposes 
of paragraphs (b)(2) and (b)(3) of this section if the State is not 
coordinating with the National Instructional Materials Access Center 
(NIMAC) or (b)(3) and (c)(2) of this section if the State is 
coordinating with the NIMAC.
    (b) Rights and responsibilities of SEA. (1) Nothing in this section 
shall be construed to require any SEA to coordinate with the NIMAC.
    (2) If an SEA chooses not to coordinate with the NIMAC, the SEA must 
provide an assurance to the Secretary that it will provide instructional 
materials to blind persons or other persons with print disabilities in a 
timely manner.
    (3) Nothing in this section relieves an SEA of its responsibility to 
ensure that children with disabilities who need instructional materials 
in accessible formats, but are not included under the definition of 
blind or other persons with print disabilities in Sec. 300.172(e)(1)(i) 
or who need materials that cannot be produced from NIMAS files, receive 
those instructional materials in a timely manner.
    (4) In order to meet its responsibility under paragraphs (b)(2), 
(b)(3), and (c) of this section to ensure that children with 
disabilities who need instructional materials in accessible formats are 
provided those materials in a timely manner, the SEA must ensure that 
all public agencies take all reasonable steps to provide instructional 
materials in accessible formats to children with disabilities who need 
those instructional materials at the same time as other children receive 
instructional materials.
    (c) Preparation and delivery of files. If an SEA chooses to 
coordinate with the NIMAC, as of December 3, 2006, the SEA must--
    (1) As part of any print instructional materials adoption process, 
procurement contract, or other practice or instrument used for purchase 
of print instructional materials, enter into a written contract with the 
publisher of the print instructional materials to--
    (i) Require the publisher to prepare and, on or before delivery of 
the print instructional materials, provide to NIMAC electronic files 
containing the

[[Page 48]]

contents of the print instructional materials using the NIMAS; or
    (ii) Purchase instructional materials from the publisher that are 
produced in, or may be rendered in, specialized formats.
    (2) Provide instructional materials to blind persons or other 
persons with print disabilities in a timely manner.
    (d) Assistive technology. In carrying out this section, the SEA, to 
the maximum extent possible, must work collaboratively with the State 
agency responsible for assistive technology programs.
    (e) Definitions. (1) In this section and Sec. 300.210--
    (i) Blind persons or other persons with print disabilities means 
children served under this part who may qualify to receive books and 
other publications produced in specialized formats in accordance with 
the Act entitled ``An Act to provide books for adult blind,'' approved 
March 3, 1931, 2 U.S.C. 135a;
    (ii) National Instructional Materials Access Center or NIMAC means 
the center established pursuant to section 674(e) of the Act;
    (iii) National Instructional Materials Accessibility Standard or 
NIMAS has the meaning given the term in section 674(e)(3)(B) of the Act;
    (iv) Specialized formats has the meaning given the term in section 
674(e)(3)(D) of the Act.
    (2) The definitions in paragraph (e)(1) of this section apply to 
each State and LEA, whether or not the State or LEA chooses to 
coordinate with the NIMAC.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(23), 1474(e))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]



Sec. 300.173  Overidentification and disproportionality.

    The State must have in effect, consistent with the purposes of this 
part and with section 618(d) of the Act, policies and procedures 
designed to prevent the inappropriate overidentification or 
disproportionate representation by race and ethnicity of children as 
children with disabilities, including children with disabilities with a 
particular impairment described in Sec. 300.8.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1412(a)(24))



Sec. 300.174  Prohibition on mandatory medication.

    (a) General. The SEA must prohibit State and LEA personnel from 
requiring parents to obtain a prescription for substances identified 
under schedules I, II, III, IV, or V in section 202(c) of the Controlled 
Substances Act (21 U.S.C. 812(c)) for a child as a condition of 
attending school, receiving an evaluation under Sec. Sec. 300.300 
through 300.311, or receiving services under this part.
    (b) Rule of construction. Nothing in paragraph (a) of this section 
shall be construed to create a Federal prohibition against teachers and 
other school personnel consulting or sharing classroom-based 
observations with parents or guardians regarding a student's academic 
and functional performance, or behavior in the classroom or school, or 
regarding the need for evaluation for special education or related 
services under Sec. 300.111 (related to child find).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.175  SEA as provider of FAPE or direct services.

    If the SEA provides FAPE to children with disabilities, or provides 
direct services to these children, the agency--
    (a) Must comply with any additional requirements of Sec. Sec. 
300.201 and 300.202 and Sec. Sec. 300.206 through 300.226 as if the 
agency were an LEA; and
    (b) May use amounts that are otherwise available to the agency under 
Part B of the Act to serve those children without regard to Sec. 
300.202(b) (relating to excess costs).

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.176  Exception for prior State plans.

    (a) General. If a State has on file with the Secretary policies and 
procedures

[[Page 49]]

approved by the Secretary that demonstrate that the State meets any 
requirement of Sec. 300.100, including any policies and procedures 
filed under Part B of the Act as in effect before, December 3, 2004, the 
Secretary considers the State to have met the requirement for purposes 
of receiving a grant under Part B of the Act.
    (b) Modifications made by a State. (1) Subject to paragraph (b)(2) 
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 determines necessary.
    (2) The provisions of this subpart apply to a modification to an 
application to the same extent and in the same manner that they apply to 
the original plan.
    (c) 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 December 3, 2004, the provisions of the Act or the 
regulations in this part are amended;
    (2) There is a new interpretation of this Act by a Federal court or 
a State's highest court; or
    (3) There is an official finding of noncompliance with Federal law 
or regulations.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.177  States' sovereign immunity and positive efforts to employ and 
advance qualified individuals with disabilities.

    (a) States' sovereign immunity.
    (1) A State that accepts funds under this part waives its immunity 
under the 11th amendment of the Constitution of the United States from 
suit in Federal court for a violation of this part.
    (2) In a suit against a State for a violation of this part, remedies 
(including remedies both at law and in equity) are available for such a 
violation in the suit against any public entity other than a State.
    (3) Paragraphs (a)(1) and (a)(2) of this section apply with respect 
to violations that occur in whole or part after the date of enactment of 
the Education of the Handicapped Act Amendments of 1990.
    (b) Positive efforts to employ and advance qualified individuals 
with disabilities. Each recipient of assistance under Part B of the Act 
must make positive efforts to employ, and advance in employment, 
qualified individuals with disabilities in programs assisted under Part 
B of the Act.

(Authority: 20 U.S.C. 1403, 1405)

[73 FR 73027, Dec. 1, 2008]

                          Department Procedures



Sec. 300.178  Determination by the Secretary that a State is eligible to 
receive a grant.

    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)(1))



Sec. 300.179  Notice and hearing before determining that a State is not eligible
to receive a grant.

    (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

[[Page 50]]

    (4) Provides the SEA with information about the hearing procedures 
that will be followed.

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



Sec. 300.180  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. 300.181  Hearing procedures.

    (a) As used in Sec. Sec. 300.179 through 300.184 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 Hearing Panel.
    (b) Within 15 days after receiving a request for a hearing, the 
Secretary designates a Hearing Official or Hearing Panel and notifies 
the parties.
    (c) The Hearing Official or Hearing Panel may regulate the course of 
proceedings and the conduct of the parties during the proceedings. The 
Hearing Official or Hearing 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 Hearing 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 Hearing Panel may schedule a prehearing 
conference with the Hearing Official or Hearing Panel and the parties.
    (3) Any party may request the Hearing Official or Hearing Panel to 
schedule a prehearing or other conference. The Hearing Official or 
Hearing Panel decides whether a conference is necessary and notifies all 
parties.
    (4) At a prehearing or other conference, the Hearing Official or 
Hearing 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;
    (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 Hearing 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 Hearing Panel.
    (5) A prehearing or other conference held under paragraph (c)(4) of 
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties must 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 Hearing 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 Hearing Panel may require parties to 
state their positions and to provide all or part of the evidence in 
writing.
    (e) The Hearing Official or Hearing Panel may require parties to 
present testimony through affidavits and to

[[Page 51]]

conduct cross-examination through interrogatories.
    (f) The Hearing Official or Hearing 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 Hearing Panel may receive, rule on, 
exclude, or limit evidence at any stage of the proceedings.
    (h) The Hearing Official or Hearing Panel may rule on motions and 
other issues at any stage of the proceedings.
    (i) The Hearing Official or Hearing Panel may examine witnesses.
    (j) The Hearing Official or Hearing Panel may set reasonable time 
limits for submission of written documents.
    (k) The Hearing Official or Hearing 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 Hearing Panel may interpret applicable 
statutes and regulations but may not waive them or rule on their 
validity.
    (m)(1) The parties must present their positions through briefs and 
the submission of other documents and may request an oral argument or 
evidentiary hearing. The Hearing Official or Hearing 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 Hearing Panel gives each party an 
opportunity to be represented by counsel.
    (n) If the Hearing Official or Hearing Panel determines that an 
evidentiary hearing would materially assist the resolution of the 
matter, the Hearing Official or Hearing Panel gives each party, in 
addition to the opportunity to be represented by counsel--
    (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 Hearing 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 Hearing 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 must file with the Hearing Official or Hearing Panel 
all written motions, briefs, and other documents and must at the same 
time provide a copy to the other parties to the proceedings.

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]



Sec. 300.182  Initial decision; final decision.

    (a) The Hearing Official or Hearing Panel prepares an initial 
written decision that addresses each of the points in the notice sent by 
the Secretary to the SEA under Sec. 300.179 including any amendments to 
or further clarifications of the issues, under Sec. 300.181(c)(7).
    (b) The initial decision of a Hearing Panel is made by a majority of 
Panel members.
    (c) The Hearing Official or Hearing 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 Hearing Panel within 15 days of 
the date the party receives the Panel's decision.
    (e) The Hearing Official or Hearing 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 Hearing Panel 
within seven days of the date the party receives the initial comments 
and recommendations.
    (f) The Hearing Official or Hearing Panel forwards the parties' 
initial and

[[Page 52]]

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 Hearing Panel 
becomes the final decision of the Secretary unless, within 25 days after 
the end of the time for receipt of written comments and recommendations, 
the Secretary informs the Hearing Official or Hearing Panel and the 
parties to a hearing in writing that the decision is being further 
reviewed for possible modification.
    (h) The Secretary rejects or modifies the initial decision of the 
Hearing Official or Hearing 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 transcript of the Hearing Official's or Hearing 
Panel's proceedings, and written comments.
    (j) The Secretary may remand the matter to the Hearing Official or 
Hearing Panel for further proceedings.
    (k) Unless the Secretary remands the matter as provided in paragraph 
(j) of this section, the Secretary issues the final decision, with any 
necessary modifications, within 30 days after notifying the Hearing 
Official or Hearing Panel that the initial decision is being further 
reviewed.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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



Sec. 300.183  Filing requirements.

    (a) Any written submission by a party under Sec. Sec. 300.179 
through 300.184 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 Hearing 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. 1412(d))



Sec. 300.184  Judicial review.

    If a State is dissatisfied with the Secretary's final decision 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 decision, 
file with the United States Court of Appeals for the circuit in which 
that State is located a petition for review of that decision. A copy of 
the petition must be 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 decision was based, as provided 
in 28 U.S.C. 2112.

(Authority: 20 U.S.C. 1416(e)(8))



Sec. 300.185  [Reserved]



Sec. 300.186  Assistance under other Federal programs.

    Part B of the Act may not be construed to permit a State to reduce 
medical and other assistance available, or to alter eligibility, under 
titles V and XIX of the Social Security Act with respect to the 
provision of FAPE for children with disabilities in the State.

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

                 By-pass for Children in Private Schools



Sec. 300.190  By-pass--general.

    (a) If, on December 2, 1983, the date of enactment of the Education 
of the Handicapped Act Amendments of 1983, an SEA was prohibited by law 
from providing for the equitable participation in special programs of 
children with disabilities enrolled in private elementary schools and 
secondary schools as required by section

[[Page 53]]

612(a)(10)(A) of the Act, or if the Secretary determines that an SEA, 
LEA, or other public agency has substantially failed or is unwilling to 
provide for such equitable participation then the Secretary shall, 
notwithstanding such provision of law, arrange for the provision of 
services to these children through arrangements which shall be subject 
to the requirements of section 612(a)(10)(A) of the Act.
    (b) The Secretary waives the requirement of section 612(a)(10)(A) of 
the Act and of Sec. Sec. 300.131 through 300.144 if the Secretary 
implements a by-pass.

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



Sec. 300.191  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, and as appropriate, LEA or other 
public agency officials to consider matters such as--
    (1) Any prohibition imposed by State law that results in the need 
for a by-pass; and
    (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.
    (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, LEA or other public agency in a manner 
consistent with the requirements of section 612(a)(10)(A) of the Act and 
Sec. Sec. 300.131 through 300.144 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 determined by dividing the total amount 
received by the State under Part B of the Act for the fiscal year by the 
number of children with disabilities served in the prior year as 
reported to the Secretary under section 618 of the Act; by
    (2) The number of private school children with disabilities (as 
defined in Sec. Sec. 300.8(a) and 300.130) in the State, LEA or other 
public agency, 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. 300.192  Notice of intent to implement a by-pass.

    (a) Before taking any final action to implement a by-pass, the 
Secretary provides the SEA and, as appropriate, LEA or other public 
agency 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 and, as appropriate, LEA or other public agency to 
respond; and
    (2) Advises the SEA and, as appropriate, LEA or other public agency 
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 and, as appropriate, 
LEA or other public agency by certified mail with return receipt 
requested.

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



Sec. 300.193  Request to show cause.

    An SEA, LEA or other public agency in receipt of a notice under 
Sec. 300.192 that seeks an opportunity to show cause why a by-pass 
should not be implemented must submit a written request for a show cause 
hearing to the Secretary, within the specified time

[[Page 54]]

period in the written notice in Sec. 300.192(b)(2).

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



Sec. 300.194  Show cause hearing.

    (a) If a show cause hearing is requested, the Secretary--
    (1) Notifies the SEA and affected LEA or other public agency, and 
other appropriate public and private school officials of the time and 
place for the hearing;
    (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; and
    (3) Notifies the SEA, LEA or other public agency, and 
representatives of private schools that they may be represented by legal 
counsel and submit oral or written evidence and arguments at the 
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 has no authority to require or conduct discovery.
    (e) The designee may interpret applicable statutes and regulations, 
but may not waive them or rule on their validity.
    (f) The designee arranges for the preparation, retention, and, if 
appropriate, dissemination of the record of the hearing.
    (g) Within 10 days after the hearing, the designee--
    (1) Indicates that a decision will be issued on the basis of the 
existing record; or
    (2) Requests further information from the SEA, LEA, other public 
agency, representatives of private schools or Department officials.

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



Sec. 300.195  Decision.

    (a) The designee who conducts the show cause hearing--
    (1) Within 120 days after the record of a show cause hearing is 
closed, 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 30 days of the date the 
party receives the designee's decision.
    (c) The Secretary adopts, reverses, or modifies the designee's 
decision and notifies all parties to the show cause hearing 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. 300.196  Filing requirements.

    (a) Any written submission under Sec. 300.194 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.
    (f) A party must show a proof of mailing to establish the filing 
date

[[Page 55]]

under paragraph (b)(2) of this section as provided in 34 CFR 75.102(d).

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



Sec. 300.197  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) through (D) of the Act.

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



Sec. 300.198  Continuation of a by-pass.

    The Secretary continues a by-pass until the Secretary determines 
that the SEA, LEA or other public agency will meet the requirements for 
providing services to private school children.

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

                          State Administration



Sec. 300.199  State administration.

    (a) Rulemaking. Each State that receives funds under Part B of the 
Act must--
    (1) Ensure that any State rules, regulations, and policies relating 
to this part conform to the purposes of this part;
    (2) Identify in writing to LEAs located in the State and the 
Secretary any such rule, regulation, or policy as a State-imposed 
requirement that is not required by Part B of the Act and Federal 
regulations; and
    (3) Minimize the number of rules, regulations, and policies to which 
the LEAs and schools located in the State are subject under Part B of 
the Act.
    (b) Support and facilitation. State rules, regulations, and policies 
under Part B of the Act must support and facilitate LEA and school-level 
system improvement designed to enable children with disabilities to meet 
the challenging State student academic achievement standards.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1407)



             Subpart C_Local Educational Agency Eligibility



Sec. 300.200  Condition of assistance.

    An LEA is eligible for assistance under Part B of the Act for a 
fiscal year if the agency submits a plan that provides assurances to the 
SEA that the LEA meets each of the conditions in Sec. Sec. 300.201 
through 300.213.

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



Sec. 300.201  Consistency with State policies.

    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 Sec. Sec. 300.101 through 300.163, and 
Sec. Sec. 300.165 through 300.174.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.202  Use of amounts.

    (a) General. Amounts provided to the LEA under Part B of the Act--
    (1) Must be expended in accordance with the applicable provisions of 
this part;
    (2) Must be used only to pay the excess costs of providing special 
education and related services to children with disabilities, consistent 
with paragraph (b) of this section; and
    (3) Must be used to supplement State, local, and other Federal funds 
and not to supplant those funds.
    (b) Excess cost requirement--(1) General. (i) 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 (b)(1)(ii) 
of this section.
    (ii) 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 of these ages. However, the LEA must comply with the 
nonsupplanting and other requirements

[[Page 56]]

of this part in providing the education and services for these children.
    (2)(i) 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.
    (ii) The amount described in paragraph (b)(2)(i) of this section is 
determined in accordance with the definition of excess costs in Sec. 
300.16. That amount may not include capital outlay or debt service.
    (3) If two or more LEAs jointly establish eligibility in accordance 
with Sec. 300.223, the minimum average amount is the average of the 
combined minimum average amounts determined in accordance with the 
definition of excess costs in Sec. 300.16 in those agencies for 
elementary or secondary school students, as the case may be.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.203  Maintenance of effort.

    (a) General. Except as provided in Sec. Sec. 300.204 and 300.205, 
funds provided to an LEA under Part B of the Act must 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) Standard. (1) Except as provided in paragraph (b)(2) of this 
section, the SEA must determine 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 (b)(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 the most recent fiscal year for which information is 
available and the standard in paragraph (b)(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.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.204  Exception to maintenance of effort.

    Notwithstanding the restriction in Sec. 300.203(a), 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 any of the following:
    (a) The voluntary departure, by retirement or otherwise, or 
departure for just cause, of special education or related services 
personnel.
    (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--
    (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.

[[Page 57]]

    (e) The assumption of cost by the high cost fund operated by the SEA 
under Sec. 300.704(c).

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.205  Adjustment to local fiscal efforts in certain fiscal years.

    (a) Amounts in excess. Notwithstanding Sec. 300.202(a)(2) and (b) 
and Sec. 300.203(a), and except as provided in paragraph (d) of this 
section and Sec. 300.230(e)(2), for any fiscal year for which the 
allocation received by an LEA under Sec. 300.705 exceeds the amount the 
LEA received for the previous fiscal year, the LEA may reduce the level 
of expenditures otherwise required by Sec. 300.203(a) by not more than 
50 percent of the amount of that excess.
    (b) Use of amounts to carry out activities under ESEA. If an LEA 
exercises the authority under paragraph (a) of this section, the LEA 
must use an amount of local funds equal to the reduction in expenditures 
under paragraph (a) of this section to carry out activities that could 
be supported with funds under the ESEA regardless of whether the LEA is 
using funds under the ESEA for those activities.
    (c) State prohibition. Notwithstanding paragraph (a) of this 
section, if an SEA determines that an LEA is unable to establish and 
maintain programs of FAPE that meet the requirements of section 613(a) 
of the Act and this part or the SEA has taken action against the LEA 
under section 616 of the Act and subpart F of these regulations, the SEA 
must prohibit the LEA from reducing the level of expenditures under 
paragraph (a) of this section for that fiscal year.
    (d) Special rule. The amount of funds expended by an LEA for early 
intervening services under Sec. 300.226 shall count toward the maximum 
amount of expenditures that the LEA may reduce under paragraph (a) of 
this section.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.206  Schoolwide programs under title I of the ESEA.

    (a) General. Notwithstanding the provisions of Sec. Sec. 300.202 
and 300.203 or any other provision of Part B of the Act, 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 ESEA, except that the 
amount used in any schoolwide program may not exceed--
    (1)(i) The amount received by the LEA under Part B of the Act 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 Sec. 300.202(a)(2) and (a)(3).
    (2) The funds may be used without regard to the requirements of 
Sec. 300.202(a)(1).
    (c) Meeting other Part B requirements. Except as provided in 
paragraph (b) of this section, all other requirements of Part B of the 
Act 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 Act.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.207  Personnel development.

    The LEA must ensure that all personnel necessary to carry out Part B 
of

[[Page 58]]

the Act are appropriately and adequately prepared, subject to the 
requirements of Sec. 300.156 (related to personnel qualifications) and 
section 2122 of the ESEA.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.208  Permissive use of funds.

    (a) Uses. Notwithstanding Sec. Sec. 300.202, 300.203(a), and 
300.162(b), 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) Early intervening services. To develop and implement 
coordinated, early intervening educational services in accordance with 
Sec. 300.226.
    (3) High cost special education and related services. To establish 
and implement cost or risk sharing funds, consortia, or cooperatives for 
the LEA itself, or for LEAs working in a consortium of which the LEA is 
a part, to pay for high cost special education and related services.
    (b) Administrative case management. An LEA may use funds received 
under Part B of the Act to purchase appropriate technology for 
recordkeeping, data collection, and related case management activities 
of teachers and related services personnel providing services described 
in the IEP of children with disabilities, that is needed for the 
implementation of those case management activities.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.209  Treatment of charter schools and their students.

    (a) Rights of children with disabilities. Children with disabilities 
who attend public charter schools and their parents retain all rights 
under this part.
    (b) Charter schools that are public schools of the LEA. (1) In 
carrying out Part B of the Act and these regulations with respect to 
charter schools that are public schools of the LEA, the LEA must--
    (i) Serve children with disabilities attending those charter schools 
in the same manner as the LEA serves children with disabilities in its 
other schools, including providing supplementary and related services on 
site at the charter school to the same extent to which the LEA has a 
policy or practice of providing such services on the site to its other 
public schools; and
    (ii) Provide funds under Part B of the Act to those charter 
schools--
    (A) On the same basis as the LEA provides funds to the LEA's other 
public schools, including proportional distribution based on relative 
enrollment of children with disabilities; and
    (B) At the same time as the LEA distributes other Federal funds to 
the LEA's other public schools, consistent with the State's charter 
school law.
    (2) If the public charter school is a school of an LEA that receives 
funding under Sec. 300.705 and includes other public schools--
    (i) 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
    (ii) The LEA must meet the requirements of paragraph (b)(1) of this 
section.
    (c) Public charter schools that are LEAs. If the public charter 
school is an LEA, consistent with Sec. 300.28, that receives funding 
under Sec. 300.705, 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.
    (d) Public charter schools that are not an LEA or a school that is 
part of an LEA. (1) If the public charter school is not an LEA receiving 
funding under Sec. 300.705, or a school that is part of an LEA 
receiving funding under Sec. 300.705, 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

[[Page 59]]

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. 300.149.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.210  Purchase of instructional materials.

    (a) General. Not later than December 3, 2006, an LEA that chooses to 
coordinate with the National Instructional Materials Access Center 
(NIMAC), when purchasing print instructional materials, must acquire 
those instructional materials in the same manner, and subject to the 
same conditions as an SEA under Sec. 300.172.
    (b) Rights of LEA. (1) Nothing in this section shall be construed to 
require an LEA to coordinate with the NIMAC.
    (2) If an LEA chooses not to coordinate with the NIMAC, the LEA must 
provide an assurance to the SEA that the LEA will provide instructional 
materials to blind persons or other persons with print disabilities in a 
timely manner.
    (3) Nothing in this section relieves an LEA of its responsibility to 
ensure that children with disabilities who need instructional materials 
in accessible formats but are not included under the definition of blind 
or other persons with print disabilities in Sec. 300.172(e)(1)(i) or 
who need materials that cannot be produced from NIMAS files, receive 
those instructional materials in a timely manner.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.211  Information for SEA.

    The LEA must 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 Sec. Sec. 300.157 and 300.160, information relating to the 
performance of children with disabilities participating in programs 
carried out under Part B of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.212  Public information.

    The LEA must 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.

(Approved by the Office of Management and Budget under control number 
1820-0600)

(Authority: 20 U.S.C. 1413(a)(8))



Sec. 300.213  Records regarding migratory children with disabilities.

    The LEA must cooperate in the Secretary's efforts under section 1308 
of the ESEA to ensure the linkage of records pertaining to migratory 
children with disabilities for the purpose of electronically exchanging, 
among the States, health and educational information regarding those 
children.

(Approved by the Office of Management and Budget under control number 
1820-0600)

(Authority: 20 U.S.C. 1413(a)(9))



Sec. Sec. 300.214-300.219  [Reserved]



Sec. 300.220  Exception for prior local plans.

    (a) General. If an LEA or a State agency described in Sec. 300.228 
has on file with the SEA policies and procedures that demonstrate that 
the LEA or State agency meets any requirement of Sec. 300.200, 
including any policies and procedures filed under Part B of the Act as 
in effect before December 3, 2004, the SEA must consider the LEA or 
State agency to have met that requirement for purposes of receiving 
assistance under Part B of the Act.
    (b) Modification made by an LEA or State agency. Subject to 
paragraph (c) of this section, policies and procedures submitted by an 
LEA or a State agency in accordance with this subpart remain in effect 
until the LEA or State agency submits to the SEA the modifications that 
the LEA or State agency determines are necessary.
    (c) 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 
Part B of the Act or State law, if--

[[Page 60]]

    (1) After December 3, 2004, the effective date of the Individuals 
with Disabilities Education Improvement Act of 2004, the applicable 
provisions of the Act (or the regulations developed to carry out the 
Act) are amended;
    (2) There is a new interpretation of an applicable provision 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. 300.221  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, then the SEA must--
    (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. 300.222  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 subpart is failing to comply with 
any requirement described in Sec. Sec. 300.201 through 300.213, the SEA 
must reduce or must 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 must, 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) Consideration. In carrying out its responsibilities under this 
section, each SEA must consider any decision resulting from a hearing 
held under Sec. Sec. 300.511 through 300.533 that is adverse to the LEA 
or State agency involved in the decision.

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



Sec. 300.223  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 will be 
ineligible under this subpart because the agency will 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 the charter school 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 Sec. 300.705 if 
the agencies were eligible for those payments.

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



Sec. 300.224  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 Sec. Sec. 300.101 through 
300.163, and Sec. Sec. 300.165 through 300.174; 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 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 
Sec. Sec. 300.223 through 300.224, an educational service agency must 
provide

[[Page 61]]

for the education of children with disabilities in the least restrictive 
environment, as required by Sec. 300.112.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.225  [Reserved]



Sec. 300.226  Early intervening services.

    (a) General. An LEA may not use more than 15 percent of the amount 
the LEA receives under Part B of the Act for any fiscal year, less any 
amount reduced by the LEA pursuant to Sec. 300.205, if any, in 
combination with other amounts (which may include amounts other than 
education funds), to develop and implement coordinated, early 
intervening services, which may include interagency financing 
structures, for students in kindergarten through grade 12 (with a 
particular emphasis on students in kindergarten through grade three) who 
are not currently identified as needing special education or related 
services, but who need additional academic and behavioral support to 
succeed in a general education environment. (See Appendix D for examples 
of how Sec. 300.205(d), regarding local maintenance of effort, and 
Sec. 300.226(a) affect one another.)
    (b) Activities. In implementing coordinated, early intervening 
services under this section, an LEA may carry out activities that 
include--
    (1) Professional development (which may be provided by entities 
other than LEAs) for teachers and other school staff to enable such 
personnel to deliver scientifically based academic and behavioral 
interventions, including scientifically based literacy instruction, and, 
where appropriate, instruction on the use of adaptive and instructional 
software; and
    (2) Providing educational and behavioral evaluations, services, and 
supports, including scientifically based literacy instruction.
    (c) Construction. Nothing in this section shall be construed to 
either limit or create a right to FAPE under Part B of the Act or to 
delay appropriate evaluation of a child suspected of having a 
disability.
    (d) Reporting. Each LEA that develops and maintains coordinated, 
early intervening services under this section must annually report to 
the SEA on--
    (1) The number of children served under this section who received 
early intervening services; and
    (2) The number of children served under this section who received 
early intervening services and subsequently receive special education 
and related services under Part B of the Act during the preceding two 
year period.
    (e) Coordination with ESEA. Funds made available to carry out this 
section may be used to carry out coordinated, early intervening services 
aligned with activities funded by, and carried out under the ESEA if 
those funds are used to supplement, and not supplant, funds made 
available under the ESEA for the activities and services assisted under 
this section.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.227  Direct services by the SEA.

    (a) General. (1) An SEA must 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 LEA, or for whom that State agency 
is responsible, if the SEA determines that the LEA or State agency--
    (i) Has not provided the information needed to establish the 
eligibility of the LEA or State agency, or elected not to apply for its 
Part B allotment, under Part B of the Act;
    (ii) Is unable to establish and maintain programs of FAPE that meet 
the requirements of this part;
    (iii) Is unable or unwilling to be consolidated with one or more 
LEAs in order to establish and maintain the programs; or
    (iv) 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.
    (2) SEA administrative procedures. (i) In meeting the requirements 
in paragraph (a)(1) of this section, the SEA

[[Page 62]]

may provide special education and related services directly, by 
contract, or through other arrangements.
    (ii) The excess cost requirements of Sec. 300.202(b) do not apply 
to the SEA.
    (b) Manner and location of education and services. The SEA may 
provide special education and related services under paragraph (a) of 
this section in the manner and at the locations (including regional or 
State centers) as the SEA considers appropriate. The education and 
services must be provided in accordance with this part.

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



Sec. 300.228  State agency eligibility.

    Any State agency that desires to receive a subgrant for any fiscal 
year under Sec. 300.705 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(h))



Sec. 300.229  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 IEP and any statement of current 
or previous disciplinary action that has been taken against the child.

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



Sec. 300.230  SEA flexibility.

    (a) Adjustment to State fiscal effort in certain fiscal years. For 
any fiscal year for which the allotment received by a State under Sec. 
300.703 exceeds the amount the State received for the previous fiscal 
year and if the State in school year 2003-2004 or any subsequent school 
year pays or reimburses all LEAs within the State from State revenue 100 
percent of the non-Federal share of the costs of special education and 
related services, the SEA, notwithstanding Sec. Sec. 300.162 through 
300.163 (related to State-level nonsupplanting and maintenance of 
effort), and Sec. 300.175 (related to direct services by the SEA) may 
reduce the level of expenditures from State sources for the education of 
children with disabilities by not more than 50 percent of the amount of 
such excess.
    (b) Prohibition. Notwithstanding paragraph (a) of this section, if 
the Secretary determines that an SEA is unable to establish, maintain, 
or oversee programs of FAPE that meet the requirements of this part, or 
that the State needs assistance, intervention, or substantial 
intervention under Sec. 300.603, the Secretary prohibits the SEA from 
exercising the authority in paragraph (a) of this section.
    (c) Education activities. If an SEA exercises the authority under 
paragraph (a) of this section, the agency must use funds from State 
sources, in an amount equal to the amount of the reduction under 
paragraph (a) of this section, to support activities authorized under 
the ESEA, or to support need-based student or teacher higher education 
programs.
    (d) Report. For each fiscal year for which an SEA exercises the 
authority under paragraph (a) of this section, the SEA must report to 
the Secretary--
    (1) The amount of expenditures reduced pursuant to that paragraph; 
and
    (2) The activities that were funded pursuant to paragraph (c) of 
this section.
    (e) Limitation. (1) Notwithstanding paragraph (a) of this section, 
an SEA

[[Page 63]]

may not reduce the level of expenditures described in paragraph (a) of 
this section if any LEA in the State would, as a result of such 
reduction, receive less than 100 percent of the amount necessary to 
ensure that all children with disabilities served by the LEA receive 
FAPE from the combination of Federal funds received under Part B of the 
Act and State funds received from the SEA.
    (2) If an SEA exercises the authority under paragraph (a) of this 
section, LEAs in the State may not reduce local effort under Sec. 
300.205 by more than the reduction in the State funds they receive.

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



   Subpart D_Evaluations, Eligibility Determinations, Individualized 
             Education Programs, and Educational Placements

                            Parental Consent



Sec. 300.300  Parental consent.

    (a) Parental consent for initial evaluation. (1)(i) The public 
agency proposing to conduct an initial evaluation to determine if a 
child qualifies as a child with a disability under Sec. 300.8 must, 
after providing notice consistent with Sec. Sec. 300.503 and 300.504, 
obtain informed consent, consistent with Sec. 300.9, from the parent of 
the child before conducting the evaluation.
    (ii) Parental consent for initial evaluation must not be construed 
as consent for initial provision of special education and related 
services.
    (iii) The public agency must make reasonable efforts to obtain the 
informed consent from the parent for an initial evaluation to determine 
whether the child is a child with a disability.
    (2) For initial evaluations only, if the child is a ward of the 
State and is not residing with the child's parent, the public agency is 
not required to obtain informed consent from the parent for an initial 
evaluation to determine whether the child is a child with a disability 
if--
    (i) Despite reasonable efforts to do so, the public agency cannot 
discover the whereabouts of the parent of the child;
    (ii) The rights of the parents of the child have been terminated in 
accordance with State law; or
    (iii) The rights of the parent to make educational decisions have 
been subrogated by a judge in accordance with State law and consent for 
an initial evaluation has been given by an individual appointed by the 
judge to represent the child.
    (3)(i) If the parent of a child enrolled in public school or seeking 
to be enrolled in public school does not provide consent for initial 
evaluation under paragraph (a)(1) of this section, or the parent fails 
to respond to a request to provide consent, the public agency may, but 
is not required to, pursue the initial evaluation of the child by 
utilizing the procedural safeguards in subpart E of this part (including 
the mediation procedures under Sec. 300.506 or the due process 
procedures under Sec. Sec. 300.507 through 300.516), if appropriate, 
except to the extent inconsistent with State law relating to such 
parental consent.
    (ii) The public agency does not violate its obligation under Sec. 
300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue 
the evaluation.
    (b) Parental consent for services. (1) A public agency that is 
responsible for making FAPE available to a child with a disability must 
obtain informed consent from the parent of the child before the initial 
provision of special education and related services to the child.
    (2) The public agency must make reasonable efforts to obtain 
informed consent from the parent for the initial provision of special 
education and related services to the child.
    (3) If the parent of a child fails to respond to a request for, or 
refuses to consent to, the initial provision of special education and 
related services, the public agency--
    (i) May not use the procedures in subpart E of this part (including 
the mediation procedures under Sec. 300.506 or the due process 
procedures under Sec. Sec. 300.507 through 300.516) in order to obtain 
agreement or a ruling that the services may be provided to the child;
    (ii) Will not be considered to be in violation of the requirement to 
make FAPE available to the child because of the failure to provide the 
child with

[[Page 64]]

the special education and related services for which the parent refuses 
to or fails to provide consent; and
    (iii) Is not required to convene an IEP Team meeting or develop an 
IEP under Sec. Sec. 300.320 and 300.324 for the child.
    (4) If, at any time subsequent to the initial provision of special 
education and related services, the parent of a child revokes consent in 
writing for the continued provision of special education and related 
services, the public agency--
    (i) May not continue to provide special education and related 
services to the child, but must provide prior written notice in 
accordance with Sec. 300.503 before ceasing the provision of special 
education and related services;
    (ii) May not use the procedures in subpart E of this part (including 
the mediation procedures under Sec. 300.506 or the due process 
procedures under Sec. Sec. 300.507 through 300.516) in order to obtain 
agreement or a ruling that the services may be provided to the child;
    (iii) Will not be considered to be in violation of the requirement 
to make FAPE available to the child because of the failure to provide 
the child with further special education and related services; and
    (iv) Is not required to convene an IEP Team meeting or develop an 
IEP under Sec. Sec. 300.320 and 300.324 for the child for further 
provision of special education and related services.
    (c) Parental consent for reevaluations. (1) Subject to paragraph 
(c)(2) of this section, each public agency--
    (i) Must obtain informed parental consent, in accordance with Sec. 
300.300(a)(1), prior to conducting any reevaluation of a child with a 
disability.
    (ii) If the parent refuses to consent to the reevaluation, the 
public agency may, but is not required to, pursue the reevaluation by 
using the consent override procedures described in paragraph (a)(3) of 
this section.
    (iii) The public agency does not violate its obligation under Sec. 
300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue 
the evaluation or reevaluation.
    (2) The informed parental consent described in paragraph (c)(1) of 
this section need not be obtained if the public agency can demonstrate 
that--
    (i) It made reasonable efforts to obtain such consent; and
    (ii) The child's parent has failed to respond.
    (d) Other consent requirements.
    (1) 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.
    (2) In addition to the parental consent requirements described in 
paragraphs (a), (b), and (c) 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.
    (3) A public agency may not use a parent's refusal to consent to one 
service or activity under paragraphs (a), (b), (c), or (d)(2) 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.
    (4)(i) If a parent of a child who is home schooled or placed in a 
private school by the parents at their own expense does not provide 
consent for the initial evaluation or the reevaluation, or the parent 
fails to respond to a request to provide consent, the public agency may 
not use the consent override procedures (described in paragraphs (a)(3) 
and (c)(1) of this section); and
    (ii) The public agency is not required to consider the child as 
eligible for services under Sec. Sec. 300.132 through 300.144.
    (5) To meet the reasonable efforts requirement in paragraphs 
(a)(1)(iii), (a)(2)(i), (b)(2), and (c)(2)(i) of this section, the 
public agency must document its attempts to obtain parental consent 
using the procedures in Sec. 300.322(d).

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

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]

[[Page 65]]

                      Evaluations and Reevaluations



Sec. 300.301  Initial evaluations.

    (a) General. Each public agency must conduct a full and individual 
initial evaluation, in accordance with Sec. Sec. 300.304 through 
300.306, before the initial provision of special education and related 
services to a child with a disability under this part.
    (b) Request for initial evaluation. Consistent with the consent 
requirements in Sec. 300.300, either a parent of a child or a public 
agency may initiate a request for an initial evaluation to determine if 
the child is a child with a disability.
    (c) Procedures for initial evaluation. The initial evaluation--
    (1)(i) Must be conducted within 60 days of receiving parental 
consent for the evaluation; or
    (ii) If the State establishes a timeframe within which the 
evaluation must be conducted, within that timeframe; and
    (2) Must consist of procedures--
    (i) To determine if the child is a child with a disability under 
Sec. 300.8; and
    (ii) To determine the educational needs of the child.
    (d) Exception. The timeframe described in paragraph (c)(1) of this 
section does not apply to a public agency if--
    (1) The parent of a child repeatedly fails or refuses to produce the 
child for the evaluation; or
    (2) A child enrolls in a school of another public agency after the 
relevant timeframe in paragraph (c)(1) of this section has begun, and 
prior to a determination by the child's previous public agency as to 
whether the child is a child with a disability under Sec. 300.8.
    (e) The exception in paragraph (d)(2) of this section applies only 
if the subsequent public agency is making sufficient progress to ensure 
a prompt completion of the evaluation, and the parent and subsequent 
public agency agree to a specific time when the evaluation will be 
completed.

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.302  Screening for instructional purposes is not evaluation.

    The screening of a student by a teacher or specialist to determine 
appropriate instructional strategies for curriculum implementation shall 
not be considered to be an evaluation for eligibility for special 
education and related services.

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



Sec. 300.303  Reevaluations.

    (a) General. A public agency must ensure that a reevaluation of each 
child with a disability is conducted in accordance with Sec. Sec. 
300.304 through 300.311--
    (1) If the public agency determines that the educational or related 
services needs, including improved academic achievement and functional 
performance, of the child warrant a reevaluation; or
    (2) If the child's parent or teacher requests a reevaluation.
    (b) Limitation. A reevaluation conducted under paragraph (a) of this 
section--
    (1) May occur not more than once a year, unless the parent and the 
public agency agree otherwise; and
    (2) Must occur at least once every 3 years, unless the parent and 
the public agency agree that a reevaluation is unnecessary.

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



Sec. 300.304  Evaluation procedures.

    (a) Notice. The public agency must provide notice to the parents of 
a child with a disability, in accordance with Sec. 300.503, that 
describes any evaluation procedures the agency proposes to conduct.
    (b) Conduct of evaluation. In conducting the evaluation, the public 
agency must--
    (1) Use a variety of assessment tools and strategies to gather 
relevant functional, developmental, and academic information about the 
child, including information provided by the parent, that may assist in 
determining--
    (i) Whether the child is a child with a disability under Sec. 
300.8; and
    (ii) The content of the child's IEP, including information related 
to enabling the child to be involved in and

[[Page 66]]

progress in the general education curriculum (or for a preschool child, 
to participate in appropriate activities);
    (2) Not use any single measure or assessment 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; and
    (3) Use technically sound instruments that may assess the relative 
contribution of cognitive and behavioral factors, in addition to 
physical or developmental factors.
    (c) Other evaluation procedures. Each public agency must ensure 
that--
    (1) Assessments and other evaluation materials used to assess a 
child under this part--
    (i) Are selected and administered so as not to be discriminatory on 
a racial or cultural basis;
    (ii) Are provided and administered in the child's native language or 
other mode of communication and in the form most likely to yield 
accurate information on what the child knows and can do academically, 
developmentally, and functionally, unless it is clearly not feasible to 
so provide or administer;
    (iii) Are used for the purposes for which the assessments or 
measures are valid and reliable;
    (iv) Are administered by trained and knowledgeable personnel; and
    (v) Are administered in accordance with any instructions provided by 
the producer of the assessments.
    (2) Assessments 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.
    (3) Assessments are selected and administered so as best to ensure 
that if an assessment is administered to a child with impaired sensory, 
manual, or speaking skills, the assessment 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).
    (4) 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;
    (5) Assessments of children with disabilities who transfer from one 
public agency to another public agency in the same school year are 
coordinated with those children's prior and subsequent schools, as 
necessary and as expeditiously as possible, consistent with Sec. 
300.301(d)(2) and (e), to ensure prompt completion of full evaluations.
    (6) In evaluating each child with a disability under Sec. Sec. 
300.304 through 300.306, 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.
    (7) Assessment tools and strategies that provide relevant 
information that directly assists persons in determining the educational 
needs of the child are provided.

(Authority: 20 U.S.C. 1414(b)(1)-(3), 1412(a)(6)(B))



Sec. 300.305  Additional requirements for evaluations and reevaluations.

    (a) Review of existing evaluation data. As part of an initial 
evaluation (if appropriate) and as part of any reevaluation under this 
part, the IEP Team and other qualified professionals, as appropriate, 
must--
    (1) Review existing evaluation data on the child, including--
    (i) Evaluations and information provided by the parents of the 
child;
    (ii) Current classroom-based, local, or State assessments, and 
classroom-based 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)(A) Whether the child is a child with a disability, as defined in 
Sec. 300.8, and the educational needs of the child; or
    (B) In case of a reevaluation of a child, whether the child 
continues to

[[Page 67]]

have such a disability, and the educational needs of the child;
    (ii) The present levels of academic achievement and related 
developmental needs of the child;
    (iii)(A) Whether the child needs special education and related 
services; or
    (B) 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 education curriculum.
    (b) Conduct of review. The group described in paragraph (a) of this 
section may conduct its review without a meeting.
    (c) Source of data. The public agency must administer such 
assessments and other evaluation measures 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 IEP 
Team and other qualified professionals, as appropriate, determine that 
no additional data are needed to determine whether the child continues 
to be a child with a disability, and to determine the child's 
educational needs, the public agency must notify the child's parents 
of--
    (i) That determination and the reasons for the determination; and
    (ii) The right of the parents to request an assessment to determine 
whether the child continues to be a child with a disability, and to 
determine the child's educational needs.
    (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.
    (e) Evaluations before change in eligibility. (1) Except as provided 
in paragraph (e)(2) of this section, a public agency must evaluate a 
child with a disability in accordance with Sec. Sec. 300.304 through 
300.311 before determining that the child is no longer a child with a 
disability.
    (2) The evaluation described in paragraph (e)(1) of this section is 
not required before the termination of a child's eligibility under this 
part due to graduation from secondary school with a regular diploma, or 
due to exceeding the age eligibility for FAPE under State law.
    (3) For a child whose eligibility terminates under circumstances 
described in paragraph (e)(2) of this section, a public agency must 
provide the child with a summary of the child's academic achievement and 
functional performance, which shall include recommendations on how to 
assist the child in meeting the child's postsecondary goals.

(Authority: 20 U.S.C. 1414(c))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.306  Determination of eligibility.

    (a) General. Upon completion of the administration of assessments 
and other evaluation measures--
    (1) A group of qualified professionals and the parent of the child 
determines whether the child is a child with a disability, as defined in 
Sec. 300.8, in accordance with paragraph (c) of this section and the 
educational needs of the child; and
    (2) The public agency provides a copy of the evaluation report and 
the documentation of determination of eligibility at no cost to the 
parent.
    (b) Special rule for eligibility determination. A child must not be 
determined to be a child with a disability under this part--
    (1) If the determinant factor for that determination is--
    (i) Lack of appropriate instruction in reading, including the 
essential components of reading instruction (as defined in section 
1208(3) of the ESEA);
    (ii) Lack of appropriate instruction in math; or
    (iii) Limited English proficiency; and
    (2) If the child does not otherwise meet the eligibility criteria 
under Sec. 300.8(a).
    (c) Procedures for determining eligibility and educational need. (1) 
In interpreting evaluation data for the purpose of determining if a 
child is a child with a disability under Sec. 300.8, and the 
educational needs of the child, each public agency must--

[[Page 68]]

    (i) Draw upon information from a variety of sources, including 
aptitude and achievement tests, parent input, and teacher 
recommendations, as well as information about the child's physical 
condition, social or cultural background, and adaptive behavior; and
    (ii) Ensure that information obtained from all of these sources is 
documented and carefully considered.
    (2) 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 Sec. Sec. 300.320 through 300.324.

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

 Additional Procedures for Identifying Children With Specific Learning 
                              Disabilities



Sec. 300.307  Specific learning disabilities.

    (a) General. A State must adopt, consistent with Sec. 300.309, 
criteria for determining whether a child has a specific learning 
disability as defined in Sec. 300.8(c)(10). In addition, the criteria 
adopted by the State--
    (1) Must not require the use of a severe discrepancy between 
intellectual ability and achievement for determining whether a child has 
a specific learning disability, as defined in Sec. 300.8(c)(10);
    (2) Must permit the use of a process based on the child's response 
to scientific, research-based intervention; and
    (3) May permit the use of other alternative research-based 
procedures for determining whether a child has a specific learning 
disability, as defined in Sec. 300.8(c)(10).
    (b) Consistency with State criteria. A public agency must use the 
State criteria adopted pursuant to paragraph (a) of this section in 
determining whether a child has a specific learning disability.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))



Sec. 300.308  Additional group members.

    The determination of whether a child suspected of having a specific 
learning disability is a child with a disability as defined in Sec. 
300.8, 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: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))



Sec. 300.309  Determining the existence of a specific learning disability.

    (a) The group described in Sec. 300.306 may determine that a child 
has a specific learning disability, as defined in Sec. 300.8(c)(10), 
if--
    (1) The child does not achieve adequately for the child's age or to 
meet State-approved grade-level standards in one or more of the 
following areas, when provided with learning experiences and instruction 
appropriate for the child's age or State-approved grade-level standards:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading fluency skills.
    (vi) Reading comprehension.
    (vii) Mathematics calculation.
    (viii) Mathematics problem solving.
    (2)(i) The child does not make sufficient progress to meet age or 
State-approved grade-level standards in one or more of the areas 
identified in paragraph (a)(1) of this section when using a process 
based on the child's response to scientific, research-based 
intervention; or
    (ii) The child exhibits a pattern of strengths and weaknesses in 
performance, achievement, or both, relative to age, State-approved 
grade-level standards, or intellectual development, that is determined 
by the group to be relevant to the identification of a specific learning 
disability, using appropriate assessments, consistent with Sec. Sec. 
300.304 and 300.305; and

[[Page 69]]

    (3) The group determines that its findings under paragraphs (a)(1) 
and (2) of this section are not primarily the result of--
    (i) A visual, hearing, or motor disability;
    (ii) Mental retardation;
    (iii) Emotional disturbance;
    (iv) Cultural factors;
    (v) Environmental or economic disadvantage; or
    (vi) Limited English proficiency.
    (b) To ensure that underachievement in a child suspected of having a 
specific learning disability is not due to lack of appropriate 
instruction in reading or math, the group must consider, as part of the 
evaluation described in Sec. Sec. 300.304 through 300.306--
    (1) Data that demonstrate that prior to, or as a part of, the 
referral process, the child was provided appropriate instruction in 
regular education settings, delivered by qualified personnel; and
    (2) Data-based documentation of repeated assessments of achievement 
at reasonable intervals, reflecting formal assessment of student 
progress during instruction, which was provided to the child's parents.
    (c) The public agency must promptly request parental consent to 
evaluate the child to determine if the child needs special education and 
related services, and must adhere to the timeframes described in 
Sec. Sec. 300.301 and 300.303, unless extended by mutual written 
agreement of the child's parents and a group of qualified professionals, 
as described in Sec. 300.306(a)(1)--
    (1) If, prior to a referral, a child has not made adequate progress 
after an appropriate period of time when provided instruction, as 
described in paragraphs (b)(1) and (b)(2) of this section; and
    (2) Whenever a child is referred for an evaluation.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))



Sec. 300.310  Observation.

    (a) The public agency must ensure that the child is observed in the 
child's learning environment (including the regular classroom setting) 
to document the child's academic performance and behavior in the areas 
of difficulty.
    (b) The group described in Sec. 300.306(a)(1), in determining 
whether a child has a specific learning disability, must decide to--
    (1) Use information from an observation in routine classroom 
instruction and monitoring of the child's performance that was done 
before the child was referred for an evaluation; or
    (2) Have at least one member of the group described in Sec. 
300.306(a)(1) conduct an observation of the child's academic performance 
in the regular classroom after the child has been referred for an 
evaluation and parental consent, consistent with Sec. 300.300(a), is 
obtained.
    (c) In the case of a child of less than school age or out of school, 
a group member must observe the child in an environment appropriate for 
a child of that age.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))



Sec. 300.311  Specific documentation for the eligibility determination.

    (a) For a child suspected of having a specific learning disability, 
the documentation of the determination of eligibility, as required in 
Sec. 300.306(a)(2), must contain a statement of--
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination, including an assurance 
that the determination has been made in accordance with Sec. 
300.306(c)(1);
    (3) The relevant behavior, if any, noted during the observation of 
the child and the relationship of that behavior to the child's academic 
functioning;
    (4) The educationally relevant medical findings, if any;
    (5) Whether--
    (i) The child does not achieve adequately for the child's age or to 
meet State-approved grade-level standards consistent with Sec. 
300.309(a)(1); and
    (ii)(A) The child does not make sufficient progress to meet age or 
State-approved grade-level standards consistent with Sec. 
300.309(a)(2)(i); or
    (B) The child exhibits a pattern of strengths and weaknesses in 
performance, achievement, or both, relative to

[[Page 70]]

age, State-approved grade level standards or intellectual development 
consistent with Sec. 300.309(a)(2)(ii);
    (6) The determination of the group concerning the effects of a 
visual, hearing, or motor disability; mental retardation; emotional 
disturbance; cultural factors; environmental or economic disadvantage; 
or limited English proficiency on the child's achievement level; and
    (7) If the child has participated in a process that assesses the 
child's response to scientific, research-based intervention--
    (i) The instructional strategies used and the student-centered data 
collected; and
    (ii) The documentation that the child's parents were notified 
about--
    (A) The State's policies regarding the amount and nature of student 
performance data that would be collected and the general education 
services that would be provided;
    (B) Strategies for increasing the child's rate of learning; and
    (C) The parents' right to request an evaluation.
    (b) Each group member must certify in writing whether the report 
reflects the member's conclusion. If it does not reflect the member's 
conclusion, the group member must submit a separate statement presenting 
the member's conclusions.

(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))

                    Individualized Education Programs



Sec. 300.320  Definition of individualized education program.

    (a) General. As used in this part, the term individualized education 
program or IEP means a written statement for each child with a 
disability that is developed, reviewed, and revised in a meeting in 
accordance with Sec. Sec. 300.320 through 300.324, and that must 
include--
    (1) A statement of the child's present levels of academic 
achievement and functional performance, including--
    (i) How the child's disability affects the child's involvement and 
progress in the general education 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)(i) A statement of measurable annual goals, including academic 
and functional goals designed to--
    (A) Meet the child's needs that result from the child's disability 
to enable the child to be involved in and make progress in the general 
education curriculum; and
    (B) Meet each of the child's other educational needs that result 
from the child's disability;
    (ii) For children with disabilities who take alternate assessments 
aligned to alternate academic achievement standards, a description of 
benchmarks or short-term objectives;
    (3) A description of--
    (i) How the child's progress toward meeting the annual goals 
described in paragraph (2) of this section will be measured; and
    (ii) When periodic reports on the progress the child is making 
toward meeting the annual goals (such as through the use of quarterly or 
other periodic reports, concurrent with the issuance of report cards) 
will be provided;
    (4) A statement of the special education and related services and 
supplementary aids and services, based on peer-reviewed research to the 
extent practicable, 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 to enable the child--
    (i) To advance appropriately toward attaining the annual goals;
    (ii) To be involved in and make progress in the general education 
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;
    (5) 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)(4) of this section;

[[Page 71]]

    (6)(i) A statement of any individual appropriate accommodations that 
are necessary to measure the academic achievement and functional 
performance of the child on State and districtwide assessments 
consistent with section 612(a)(16) of the Act; and
    (ii) If the IEP Team determines that the child must take an 
alternate assessment instead of a particular regular State or 
districtwide assessment of student achievement, a statement of why--
    (A) The child cannot participate in the regular assessment; and
    (B) The particular alternate assessment selected is appropriate for 
the child; and
    (7) The projected date for the beginning of the services and 
modifications described in paragraph (a)(4) of this section, and the 
anticipated frequency, location, and duration of those services and 
modifications.
    (b) Transition services. Beginning not later than the first IEP to 
be in effect when the child turns 16, or younger if determined 
appropriate by the IEP Team, and updated annually, thereafter, the IEP 
must include--
    (1) Appropriate measurable postsecondary goals based upon age 
appropriate transition assessments related to training, education, 
employment, and, where appropriate, independent living skills; and
    (2) The transition services (including courses of study) needed to 
assist the child in reaching those goals.
    (c) Transfer of rights at age of majority. Beginning not later than 
one year before the child reaches the age of majority under State law, 
the IEP must include a statement that the child has been informed of the 
child's rights under Part B of the Act, if any, that will transfer to 
the child on reaching the age of majority under Sec. 300.520.
    (d) Construction. Nothing in this section shall be construed to 
require--
    (1) That additional information be included in a child's IEP beyond 
what is explicitly required in section 614 of the Act; or
    (2) 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)(1)(A) and (d)(6))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.321  IEP Team.

    (a) General. The public agency must ensure that the IEP Team for 
each child with a disability includes--
    (1) The parents of the child;
    (2) Not less than one regular education teacher of the child (if the 
child is, or may be, participating in the regular education 
environment);
    (3) Not less than one special education teacher of the child, or 
where appropriate, not less than 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 education 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 (a)(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) Whenever appropriate, the child with a disability.
    (b) Transition services participants. (1) In accordance with 
paragraph (a)(7) of this section, the public agency must invite a child 
with a disability to attend the child's IEP Team meeting if a purpose of 
the meeting will be the consideration of the postsecondary goals for the 
child and the transition services needed to assist the child in reaching 
those goals under Sec. 300.320(b).
    (2) If the child does not attend the IEP Team meeting, the public 
agency must take other steps to ensure that the child's preferences and 
interests are considered.
    (3) To the extent appropriate, with the consent of the parents or a 
child

[[Page 72]]

who has reached the age of majority, in implementing the requirements of 
paragraph (b)(1) of this section, the public agency must invite a 
representative of any participating agency that is likely to be 
responsible for providing or paying for 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 must be made by the party 
(parents or public agency) who invited the individual to be a member of 
the IEP Team.
    (d) Designating a public agency representative. A public agency may 
designate a 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.
    (e) IEP Team attendance. (1) A member of the IEP Team described in 
paragraphs (a)(2) through (a)(5) of this section is not required to 
attend an IEP Team meeting, in whole or in part, if the parent of a 
child with a disability and the public agency agree, in writing, that 
the attendance of the member is not necessary because the member's area 
of the curriculum or related services is not being modified or discussed 
in the meeting.
    (2) A member of the IEP Team described in paragraph (e)(1) of this 
section may be excused from attending an IEP Team meeting, in whole or 
in part, when the meeting involves a modification to or discussion of 
the member's area of the curriculum or related services, if--
    (i) The parent, in writing, and the public agency consent to the 
excusal; and
    (ii) The member submits, in writing to the parent and the IEP Team, 
input into the development of the IEP prior to the meeting.
    (f) Initial IEP Team meeting for child under Part C. In the case of 
a child who was previously served under Part C of the Act, an invitation 
to the initial IEP Team meeting must, at the request of the parent, be 
sent to the Part C service coordinator or other representatives of the 
Part C system to assist with the smooth transition of services.

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.322  Parent participation.

    (a) Public agency responsibility--general. Each public agency must 
take steps to ensure that one or both of the parents of a child with a 
disability are present at each IEP Team 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. 300.321(a)(6) and 
(c) (relating to the participation of other individuals on the IEP Team 
who have knowledge or special expertise about the child), and Sec. 
300.321(f) (relating to the participation of the Part C service 
coordinator or other representatives of the Part C system at the initial 
IEP Team meeting for a child previously served under Part C of the Act).
    (2) For a child with a disability beginning not later than the first 
IEP to be in effect when the child turns 16, or younger if determined 
appropriate by the IEP Team, the notice also must--
    (i) Indicate--
    (A) That a purpose of the meeting will be the consideration of the 
postsecondary goals and transition services for the child, in accordance 
with Sec. 300.320(b); and
    (B) That the agency will invite the student; and
    (ii) Identify any other agency that will be invited to send a 
representative.
    (c) Other methods to ensure parent participation. If neither parent 
can attend an IEP Team meeting, the public agency must use other methods 
to ensure parent participation, including individual or conference 
telephone calls,

[[Page 73]]

consistent with Sec. 300.328 (related to alternative means of meeting 
participation).
    (d) Conducting an IEP Team 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 keep 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 must take whatever action is necessary to ensure that the parent 
understands the proceedings of the IEP Team 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 must 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. 300.323  When IEPs must be in effect.

    (a) General. At the beginning of each school year, each public 
agency must have in effect, for each child with a disability within its 
jurisdiction, an IEP, as defined in Sec. 300.320.
    (b) IEP or IFSP for children aged three through five. (1) In the 
case of a child with a disability aged three through five (or, at the 
discretion of the SEA, a two-year-old child with a disability who will 
turn age three during the school year), the IEP Team must consider an 
IFSP that contains the IFSP content (including the natural environments 
statement) described in section 636(d) of the Act and its implementing 
regulations (including an educational component that promotes school 
readiness and incorporates pre-literacy, language, and numeracy skills 
for children with IFSPs under this section who are at least three years 
of age), and that is developed in accordance with the IEP procedures 
under this part. The IFSP may serve as the IEP of the child, if using 
the IFSP 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 (b)(1) of this 
section, the public agency must--
    (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.
    (c) Initial IEPs; provision of services. Each public agency must 
ensure that--
    (1) A meeting to develop an IEP for a child is conducted within 30 
days of a determination that the child needs special education and 
related services; and
    (2) As soon as possible following development of the IEP, special 
education and related services are made available to the child in 
accordance with the child's IEP.
    (d) Accessibility of child's IEP to teachers and others. Each public 
agency must ensure that--
    (1) The child's IEP is accessible to each regular education teacher, 
special education teacher, related services provider, and any other 
service provider who is responsible for its implementation; and
    (2) Each teacher and provider described in paragraph (d)(1) 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.
    (e) IEPs for children who transfer public agencies in the same 
State. If a child with a disability (who had an IEP that was in effect 
in a previous public agency in the same State) transfers to a new public 
agency in the same State, and enrolls in a new school within the same 
school year, the new public agency (in consultation with the parents) 
must provide FAPE to the child (including services comparable to those 
described in the child's IEP from the previous public agency), until the 
new public agency either--

[[Page 74]]

    (1) Adopts the child's IEP from the previous public agency; or
    (2) Develops, adopts, and implements a new IEP that meets the 
applicable requirements in Sec. Sec. 300.320 through 300.324.
    (f) IEPs for children who transfer from another State. If a child 
with a disability (who had an IEP that was in effect in a previous 
public agency in another State) transfers to a public agency in a new 
State, and enrolls in a new school within the same school year, the new 
public agency (in consultation with the parents) must provide the child 
with FAPE (including services comparable to those described in the 
child's IEP from the previous public agency), until the new public 
agency--
    (1) Conducts an evaluation pursuant to Sec. Sec. 300.304 through 
300.306 (if determined to be necessary by the new public agency); and
    (2) Develops, adopts, and implements a new IEP, if appropriate, that 
meets the applicable requirements in Sec. Sec. 300.320 through 300.324.
    (g) Transmittal of records. To facilitate the transition for a child 
described in paragraphs (e) and (f) of this section--
    (1) The new public agency in which the child enrolls must take 
reasonable steps to promptly obtain the child's records, including the 
IEP and supporting documents and any other records relating to the 
provision of special education or related services to the child, from 
the previous public agency in which the child was enrolled, pursuant to 
34 CFR 99.31(a)(2); and
    (2) The previous public agency in which the child was enrolled must 
take reasonable steps to promptly respond to the request from the new 
public agency.

(Authority: 20 U.S.C. 1414(d)(2)(A)-(C))

                           Development of IEP



Sec. 300.324  Development, review, and revision of IEP.

    (a) Development of IEP--(1) General. In developing each child's IEP, 
the IEP Team must consider--
    (i) The strengths of the child;
    (ii) The concerns of the parents for enhancing the education of 
their child;
    (iii) The results of the initial or most recent evaluation of the 
child; and
    (iv) The academic, developmental, and functional needs of the child.
    (2) Consideration of special factors. The IEP Team must--
    (i) In the case of a child whose behavior impedes the child's 
learning or that of others, consider the use of positive behavioral 
interventions and supports, and other strategies, 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 needs assistive technology devices 
and services.
    (3) Requirement with respect to regular education teacher. A 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 of 
the IEP of the child, including the determination of--
    (i) Appropriate positive behavioral interventions and supports and 
other strategies for the child; and
    (ii) Supplementary aids and services, program modifications, and 
support for school personnel consistent with Sec. 300.320(a)(4).
    (4) Agreement. (i) In making changes to a child's IEP after the 
annual IEP Team meeting for a school year, the parent of a child with a 
disability and

[[Page 75]]

the public agency may agree not to convene an IEP Team meeting for the 
purposes of making those changes, and instead may develop a written 
document to amend or modify the child's current IEP.
    (ii) If changes are made to the child's IEP in accordance with 
paragraph (a)(4)(i) of this section, the public agency must ensure that 
the child's IEP Team is informed of those changes.
    (5) Consolidation of IEP Team meetings. To the extent possible, the 
public agency must encourage the consolidation of reevaluation meetings 
for the child and other IEP Team meetings for the child.
    (6) Amendments. Changes to the IEP may be made either by the entire 
IEP Team at an IEP Team meeting, or as provided in paragraph (a)(4) of 
this section, by amending the IEP rather than by redrafting the entire 
IEP. Upon request, a parent must be provided with a revised copy of the 
IEP with the amendments incorporated.
    (b) Review and revision of IEPs--(1) General. Each public agency 
must ensure that, subject to paragraphs (b)(2) and (b)(3) of this 
section, the IEP Team--
    (i) Reviews the child's IEP periodically, but not less than 
annually, to determine whether the annual goals for the child are being 
achieved; and
    (ii) Revises the IEP, as appropriate, to address--
    (A) Any lack of expected progress toward the annual goals described 
in Sec. 300.320(a)(2), and in the general education curriculum, if 
appropriate;
    (B) The results of any reevaluation conducted under Sec. 300.303;
    (C) Information about the child provided to, or by, the parents, as 
described under Sec. 300.305(a)(2);
    (D) The child's anticipated needs; or
    (E) Other matters.
    (2) Consideration of special factors. In conducting a review of the 
child's IEP, the IEP Team must consider the special factors described in 
paragraph (a)(2) of this section.
    (3) Requirement with respect to regular education teacher. A regular 
education teacher of the child, as a member of the IEP Team, must, 
consistent with paragraph (a)(3) of this section, participate in the 
review and revision of the IEP of the child.
    (c) Failure to meet transition objectives--(1) Participating agency 
failure. If a participating agency, other than the public agency, fails 
to provide the transition services described in the IEP in accordance 
with Sec. 300.320(b), the public agency must reconvene the IEP Team to 
identify alternative strategies to meet the transition objectives for 
the child set out in the IEP.
    (2) Construction. 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 children with disabilities who meet 
the eligibility criteria of that agency.
    (d) Children with disabilities in adult prisons--(1) Requirements 
that do not apply. The following requirements do not apply to children 
with disabilities who are convicted as adults under State law and 
incarcerated in adult prisons:
    (i) The requirements contained in section 612(a)(16) of the Act and 
Sec. 300.320(a)(6) (relating to participation of children with 
disabilities in general assessments).
    (ii) The requirements in Sec. 300.320(b) (relating to transition 
planning and transition services) do not apply with respect to the 
children 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.
    (2) Modifications of IEP or placement. (i) Subject to paragraph 
(d)(2)(ii) of this section, the IEP Team of a child with a disability 
who is convicted as an adult under State law and incarcerated in an 
adult prison may modify the child's IEP or placement if the State has 
demonstrated a bona fide security or compelling penological interest 
that cannot otherwise be accommodated.
    (ii) The requirements of Sec. Sec. 300.320 (relating to IEPs), and 
300.112 (relating to LRE), do not apply with respect to the 
modifications described in paragraph (d)(2)(i) of this section.

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(A)(i), 1414(d)(3), (4)(B), 
and (7); and 1414(e))

[[Page 76]]



Sec. 300.325  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 must initiate and conduct a meeting to develop an IEP for the 
child in accordance with Sec. Sec. 300.320 and 300.324.
    (2) The agency must ensure that a representative of the private 
school or facility attends the meeting. If the representative cannot 
attend, the agency must 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 must 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. 300.326  [Reserved]



Sec. 300.327  Educational placements.

    Consistent with Sec. 300.501(c), each public agency must 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.

(Authority: 20 U.S.C. 1414(e))



Sec. 300.328  Alternative means of meeting participation.

    When conducting IEP Team meetings and placement meetings pursuant to 
this subpart, and subpart E of this part, and carrying out 
administrative matters under section 615 of the Act (such as scheduling, 
exchange of witness lists, and status conferences), the parent of a 
child with a disability and a public agency may agree to use alternative 
means of meeting participation, such as video conferences and conference 
calls.

(Authority: 20 U.S.C. 1414(f))



 Subpart E_Procedural Safeguards Due Process Procedures for Parents and 
                                Children



Sec. 300.500  Responsibility of SEA and other public agencies.

    Each SEA must ensure that each public agency establishes, maintains, 
and implements procedural safeguards that meet the requirements of 
Sec. Sec. 300.500 through 300.536.

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



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

    (a) Opportunity to examine records. The parents of a child with a 
disability must be afforded, in accordance with the procedures of 
Sec. Sec. 300.613 through 300.621, an opportunity to inspect and review 
all education records with respect to--
    (1) The identification, evaluation, and educational placement of the 
child; and
    (2) The provision of FAPE to the child.
    (b) Parent participation in meetings. (1) The parents of a child 
with a disability must be afforded an opportunity to 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.
    (2) Each public agency must provide notice consistent with Sec. 
300.322(a)(1) and (b)(1) to ensure that parents of children with 
disabilities have the opportunity to participate in meetings described 
in paragraph (b)(1) of this section.
    (3) A meeting does not include informal or unscheduled conversations 
involving public agency personnel and

[[Page 77]]

conversations on issues such as teaching methodology, lesson plans, or 
coordination of service provision. 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 must ensure that a parent of each child with a disability is a 
member of any group that makes decisions on the educational placement of 
the parent's child.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency must use procedures consistent with the 
procedures described in Sec. 300.322(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 must 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 a parent, if the public agency is unable to obtain the 
parent's participation in the decision. In this case, the public agency 
must have a record of its attempt to ensure their involvement.

(Authority: 20 U.S.C. 1414(e), 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 must 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 subpart--
    (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. 300.103.
    (b) Parent right to evaluation at public expense.
    (1) A parent has the right to an independent educational evaluation 
at public expense if the parent disagrees with an evaluation obtained by 
the public agency, subject to the conditions in paragraphs (b)(2) 
through (4) of this section.
    (2) If a parent requests an independent educational evaluation at 
public expense, the public agency must, without unnecessary delay, 
either--
    (i) File a due process complaint to request a hearing 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 pursuant 
to Sec. Sec. 300.507 through 300.513 that the evaluation obtained by 
the parent did not meet agency criteria.
    (3) If the public agency files a due process complaint notice to 
request 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 public agency may not require the 
parent to provide an explanation and may not unreasonably delay either 
providing the independent educational evaluation at public expense or 
filing a due process complaint to request a due process hearing to 
defend the public evaluation.
    (5) A parent is entitled to only one independent educational 
evaluation at public expense each time the public agency conducts an 
evaluation with which the parent disagrees.

[[Page 78]]

    (c) Parent-initiated evaluations. If the parent obtains an 
independent educational evaluation at public expense or shares with the 
public agency an evaluation obtained 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 by any party as evidence at a hearing on a due 
process complaint under subpart E of this part regarding that child.
    (d) Requests for evaluations by hearing officers. If a hearing 
officer requests an independent educational evaluation as part of a 
hearing on a due process complaint, 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) and (d)(2)(A))



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

    (a) Notice. 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--
    (1) Proposes to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child; or
    (2) Refuses to initiate or change the identification, evaluation, or 
educational placement of the child or the provision of FAPE to the 
child.
    (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 each evaluation procedure, assessment, record, 
or report the agency used as a basis for the proposed or refused action;
    (4) 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;
    (5) Sources for parents to contact to obtain assistance in 
understanding the provisions of this part;
    (6) A description of other options that the IEP Team considered and 
the reasons why those options were rejected; and
    (7) A description of other factors that are relevant to the agency's 
proposal or refusal.
    (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 must 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) and (4), 1415(c)(1), 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 only 
one time a school year, except that a copy also must be given to the 
parents--

[[Page 79]]

    (1) Upon initial referral or parent request for evaluation;
    (2) Upon receipt of the first State complaint under Sec. Sec. 
300.151 through 300.153 and upon receipt of the first due process 
complaint under Sec. 300.507 in a school year;
    (3) In accordance with the discipline procedures in Sec. 
300.530(h); and
    (4) Upon request by a parent.
    (b) Internet Web site. A public agency may place a current copy of 
the procedural safeguards notice on its Internet Web site if a Web site 
exists.
    (c) Contents. The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available under Sec. 
300.148, Sec. Sec. 300.151 through 300.153, Sec. 300.300, Sec. Sec. 
300.502 through 300.503, Sec. Sec. 300.505 through 300.518, Sec. Sec. 
300.530 through 300.536 and Sec. Sec. 300.610 through 300.625 relating 
to--
    (1) Independent educational evaluations;
    (2) Prior written notice;
    (3) Parental consent;
    (4) Access to education records;
    (5) Opportunity to present and resolve complaints through the due 
process complaint and State complaint procedures, including--
    (i) The time period in which to file a complaint;
    (ii) The opportunity for the agency to resolve the complaint; and
    (iii) The difference between the due process complaint and the State 
complaint procedures, including the jurisdiction of each procedure, what 
issues may be raised, filing and decisional timelines, and relevant 
procedures;
    (6) The availability of mediation;
    (7) The child's placement during the pendency of any due process 
complaint;
    (8) Procedures for students who are subject to placement in an 
interim alternative educational setting;
    (9) Requirements for unilateral placement by parents of children in 
private schools at public expense;
    (10) Hearings on due process complaints, including requirements for 
disclosure of evaluation results and recommendations;
    (11) State-level appeals (if applicable in the State);
    (12) Civil actions, including the time period in which to file those 
actions; and
    (13) Attorneys' fees.
    (d) Notice in understandable language. The notice required under 
paragraph (a) of this section must meet the requirements of Sec. 
300.503(c).

(Approved by the Office of Management and Budget under control number 
1820-0600)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.505  Electronic mail.

    A parent of a child with a disability may elect to receive notices 
required by Sec. Sec. 300.503, 300.504, and 300.508 by an electronic 
mail communication, if the public agency makes that option available.

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



Sec. 300.506  Mediation.

    (a) General. Each public agency must ensure that procedures are 
established and implemented to allow parties to disputes involving any 
matter under this part, including matters arising prior to the filing of 
a due process complaint, to resolve disputes through a mediation 
process.
    (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 hearing on 
the parent's due process complaint, 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) A public agency may establish procedures to offer to parents and 
schools that choose not to use the mediation process, an opportunity to 
meet, at a time and location convenient to the parents, with a 
disinterested party--
    (i) Who is under contract with an appropriate alternative dispute 
resolution entity, or a parent training and

[[Page 80]]

information center or community parent resource center in the State 
established under section 671 or 672 of the Act; and
    (ii) Who would explain the benefits of, and encourage the use of, 
the mediation process to the parents.
    (3)(i) The State must 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) The SEA must select mediators on a random, rotational, or other 
impartial basis.
    (4) The State must bear the cost of the mediation process, including 
the costs of meetings described in paragraph (b)(2) of this section.
    (5) 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.
    (6) If the parties resolve a dispute through the mediation process, 
the parties must execute a legally binding agreement that sets forth 
that resolution and that--
    (i) States that all discussions that occurred during the mediation 
process will remain confidential and may not be used as evidence in any 
subsequent due process hearing or civil proceeding; and
    (ii) Is signed by both the parent and a representative of the agency 
who has the authority to bind such agency.
    (7) A written, signed mediation agreement under this paragraph is 
enforceable in any State court of competent jurisdiction or in a 
district court of the United States.
    (8) Discussions that occur during the mediation process must be 
confidential and may not be used as evidence in any subsequent due 
process hearing or civil proceeding of any Federal court or State court 
of a State receiving assistance under this part.
    (c) Impartiality of mediator. (1) An individual who serves as a 
mediator under this part--
    (i) May not be an employee of the SEA or the LEA that is involved in 
the education or care of the child; and
    (ii) Must not have a personal or professional interest that 
conflicts with the person's objectivity.
    (2) A person who otherwise qualifies as a mediator is not an 
employee of an LEA or State agency described under Sec. 300.228 solely 
because he or she is paid by the agency to serve as a mediator.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.507  Filing a due process complaint.

    (a) General. (1) A parent or a public agency may file a due process 
complaint 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) The due process complaint must allege a violation that occurred 
not more than two years before the date the parent or public agency knew 
or should have known about the alleged action that forms the basis of 
the due process complaint, or, if the State has an explicit time 
limitation for filing a due process complaint under this part, in the 
time allowed by that State law, except that the exceptions to the 
timeline described in Sec. 300.511(f) apply to the timeline in this 
section.
    (b) Information for parents. The public agency must inform the 
parent of any free or low-cost legal and other relevant services 
available in the area if--
    (1) The parent requests the information; or
    (2) The parent or the agency files a due process complaint under 
this section.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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



Sec. 300.508  Due process complaint.

    (a) General. (1) The public agency must have procedures that require 
either party, or the attorney representing a party, to provide to the 
other party a due process complaint (which must remain confidential).
    (2) The party filing a due process complaint must forward a copy of 
the due process complaint to the SEA.

[[Page 81]]

    (b) Content of complaint. The due process complaint required in 
paragraph (a)(1) of this section must include--
    (1) The name of the child;
    (2) The address of the residence of the child;
    (3) The name of the school the child is attending;
    (4) In the case of a homeless child or youth (within the meaning of 
section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
11434a(2)), available contact information for the child, and the name of 
the school the child is attending;
    (5) 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
    (6) A proposed resolution of the problem to the extent known and 
available to the party at the time.
    (c) Notice required before a hearing on a due process complaint. A 
party may not have a hearing on a due process complaint until the party, 
or the attorney representing the party, files a due process complaint 
that meets the requirements of paragraph (b) of this section.
    (d) Sufficiency of complaint. (1) The due process complaint required 
by this section must be deemed sufficient unless the party receiving the 
due process complaint notifies the hearing officer and the other party 
in writing, within 15 days of receipt of the due process complaint, that 
the receiving party believes the due process complaint does not meet the 
requirements in paragraph (b) of this section.
    (2) Within five days of receipt of notification under paragraph 
(d)(1) of this section, the hearing officer must make a determination on 
the face of the due process complaint of whether the due process 
complaint meets the requirements of paragraph (b) of this section, and 
must immediately notify the parties in writing of that determination.
    (3) A party may amend its due process complaint only if--
    (i) The other party consents in writing to the amendment and is 
given the opportunity to resolve the due process complaint through a 
meeting held pursuant to Sec. 300.510; or
    (ii) The hearing officer grants permission, except that the hearing 
officer may only grant permission to amend at any time not later than 
five days before the due process hearing begins.
    (4) If a party files an amended due process complaint, the timelines 
for the resolution meeting in Sec. 300.510(a) and the time period to 
resolve in Sec. 300.510(b) begin again with the filing of the amended 
due process complaint.
    (e) LEA response to a due process complaint. (1) If the LEA has not 
sent a prior written notice under Sec. 300.503 to the parent regarding 
the subject matter contained in the parent's due process complaint, the 
LEA must, within 10 days of receiving the due process complaint, send to 
the parent a response that includes--
    (i) An explanation of why the agency proposed or refused to take the 
action raised in the due process complaint;
    (ii) A description of other options that the IEP Team considered and 
the reasons why those options were rejected;
    (iii) A description of each evaluation procedure, assessment, 
record, or report the agency used as the basis for the proposed or 
refused action; and
    (iv) A description of the other factors that are relevant to the 
agency's proposed or refused action.
    (2) A response by an LEA under paragraph (e)(1) of this section 
shall not be construed to preclude the LEA from asserting that the 
parent's due process complaint was insufficient, where appropriate.
    (f) Other party response to a due process complaint. Except as 
provided in paragraph (e) of this section, the party receiving a due 
process complaint must, within 10 days of receiving the due process 
complaint, send to the other party a response that specifically 
addresses the issues raised in the due process complaint.

(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))



Sec. 300.509  Model forms.

    (a) Each SEA must develop model forms to assist parents and public 
agencies in filing a due process complaint in accordance with Sec. Sec. 
300.507(a) and 300.508(a) through (c) and to assist parents and other 
parties in filing a State complaint under Sec. Sec. 300.151

[[Page 82]]

through 300.153. However, the SEA or LEA may not require the use of the 
model forms.
    (b) Parents, public agencies, and other parties may use the 
appropriate model form described in paragraph (a) of this section, or 
another form or other document, so long as the form or document that is 
used meets, as appropriate, the content requirements in Sec. 300.508(b) 
for filing a due process complaint, or the requirements in Sec. 
300.153(b) for filing a State complaint.

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



Sec. 300.510  Resolution process.

    (a) Resolution meeting. (1) Within 15 days of receiving notice of 
the parent's due process complaint, and prior to the initiation of a due 
process hearing under Sec. 300.511, the LEA must convene a meeting with 
the parent and the relevant member or members of the IEP Team who have 
specific knowledge of the facts identified in the due process complaint 
that--
    (i) Includes a representative of the public agency who has decision-
making authority on behalf of that agency; and
    (ii) May not include an attorney of the LEA unless the parent is 
accompanied by an attorney.
    (2) The purpose of the meeting is for the parent of the child to 
discuss the due process complaint, and the facts that form the basis of 
the due process complaint, so that the LEA has the opportunity to 
resolve the dispute that is the basis for the due process complaint.
    (3) The meeting described in paragraph (a)(1) and (2) of this 
section need not be held if--
    (i) The parent and the LEA agree in writing to waive the meeting; or
    (ii) The parent and the LEA agree to use the mediation process 
described in Sec. 300.506.
    (4) The parent and the LEA determine the relevant members of the IEP 
Team to attend the meeting.
    (b) Resolution period. (1) If the LEA has not resolved the due 
process complaint to the satisfaction of the parent within 30 days of 
the receipt of the due process complaint, the due process hearing may 
occur.
    (2) Except as provided in paragraph (c) of this section, the 
timeline for issuing a final decision under Sec. 300.515 begins at the 
expiration of this 30-day period.
    (3) Except where the parties have jointly agreed to waive the 
resolution process or to use mediation, notwithstanding paragraphs 
(b)(1) and (2) of this section, the failure of the parent filing a due 
process complaint to participate in the resolution meeting will delay 
the timelines for the resolution process and due process hearing until 
the meeting is held.
    (4) If the LEA is unable to obtain the participation of the parent 
in the resolution meeting after reasonable efforts have been made (and 
documented using the procedures in Sec. 300.322(d)), the LEA may, at 
the conclusion of the 30-day period, request that a hearing officer 
dismiss the parent's due process complaint.
    (5) If the LEA fails to hold the resolution meeting specified in 
paragraph (a) of this section within 15 days of receiving notice of a 
parent's due process complaint or fails to participate in the resolution 
meeting, the parent may seek the intervention of a hearing officer to 
begin the due process hearing timeline.
    (c) Adjustments to 30-day resolution period. The 45-day timeline for 
the due process hearing in Sec. 300.515(a) starts the day after one of 
the following events:
    (1) Both parties agree in writing to waive the resolution meeting;
    (2) After either the mediation or resolution meeting starts but 
before the end of the 30-day period, the parties agree in writing that 
no agreement is possible;
    (3) If both parties agree in writing to continue the mediation at 
the end of the 30-day resolution period, but later, the parent or public 
agency withdraws from the mediation process.
    (d) Written settlement agreement. If a resolution to the dispute is 
reached at the meeting described in paragraphs (a)(1) and (2) of this 
section, the parties must execute a legally binding agreement that is--
    (1) Signed by both the parent and a representative of the agency who 
has the authority to bind the agency; and
    (2) Enforceable in any State court of competent jurisdiction or in a 
district court of the United States, or, by the

[[Page 83]]

SEA, if the State has other mechanisms or procedures that permit parties 
to seek enforcement of resolution agreements, pursuant to Sec. 300.537.
    (e) Agreement review period. If the parties execute an agreement 
pursuant to paragraph (d) of this section, a party may void the 
agreement within 3 business days of the agreement's execution.

(Authority: 20 U.S.C. 1415(f)(1)(B))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.511  Impartial due process hearing.

    (a) General. Whenever a due process complaint is received under 
Sec. 300.507 or Sec. 300.532, the parents or the LEA involved in the 
dispute must have an opportunity for an impartial due process hearing, 
consistent with the procedures in Sec. Sec. 300.507, 300.508, and 
300.510.
    (b) Agency responsible for conducting the due process 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) Impartial hearing officer. (1) At a minimum, a hearing officer--
    (i) Must not be--
    (A) An employee of the SEA or the LEA that is involved in the 
education or care of the child; or
    (B) A person having a personal or professional interest that 
conflicts with the person's objectivity in the hearing;
    (ii) Must possess knowledge of, and the ability to understand, the 
provisions of the Act, Federal and State regulations pertaining to the 
Act, and legal interpretations of the Act by Federal and State courts;
    (iii) Must possess the knowledge and ability to conduct hearings in 
accordance with appropriate, standard legal practice; and
    (iv) Must possess the knowledge and ability to render and write 
decisions in accordance with appropriate, standard legal practice.
    (2) A person who otherwise qualifies to conduct a hearing under 
paragraph (c)(1) 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.
    (3) Each public agency must 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.
    (d) Subject matter of due process hearings. The party requesting the 
due process hearing may not raise issues at the due process hearing that 
were not raised in the due process complaint filed under Sec. 
300.508(b), unless the other party agrees otherwise.
    (e) Timeline for requesting a hearing. A parent or agency must 
request an impartial hearing on their due process complaint within two 
years of the date the parent or agency knew or should have known about 
the alleged action that forms the basis of the due process complaint, or 
if the State has an explicit time limitation for requesting such a due 
process hearing under this part, in the time allowed by that State law.
    (f) Exceptions to the timeline. The timeline described in paragraph 
(e) of this section does not apply to a parent if the parent was 
prevented from filing a due process complaint due to--
    (1) Specific misrepresentations by the LEA that it had resolved the 
problem forming the basis of the due process complaint; or
    (2) The LEA's withholding of information from the parent that was 
required under this part to be provided to the parent.

(Approved by the Office of Management and Budget under control number 
1820-0600)

(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D))



Sec. 300.512  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to Sec. Sec. 
300.507 through 300.513 or Sec. Sec. 300.530 through 300.534, or an 
appeal conducted pursuant to Sec. 300.514, has the right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to the problems of children 
with disabilities, except that whether parties have the right to be 
represented by non-attorneys at due process hearings is determined under 
State law;

[[Page 84]]

    (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 five 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 five business 
days prior to a hearing conducted pursuant to Sec. 300.511(a), each 
party must 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. Parents involved in hearings must 
be given the right to--
    (1) Have the child who is the subject of the hearing present;
    (2) Open the hearing to the public; and
    (3) Have the record of the hearing and the findings of fact and 
decisions described in paragraphs (a)(4) and (a)(5) of this section 
provided at no cost to parents.

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

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]



Sec. 300.513  Hearing decisions.

    (a) Decision of hearing officer on the provision of FAPE. (1) 
Subject to paragraph (a)(2) of this section, a hearing officer's 
determination of whether a child received FAPE must be based on 
substantive grounds.
    (2) In matters alleging a procedural violation, a hearing officer 
may find that a child did not receive a FAPE only if the procedural 
inadequacies--
    (i) Impeded the child's right to a FAPE;
    (ii) Significantly impeded the parent's opportunity to participate 
in the decision-making process regarding the provision of a FAPE to the 
parent's child; or
    (iii) Caused a deprivation of educational benefit.
    (3) Nothing in paragraph (a) of this section shall be construed to 
preclude a hearing officer from ordering an LEA to comply with 
procedural requirements under Sec. Sec. 300.500 through 300.536.
    (b) Construction clause. Nothing in Sec. Sec. 300.507 through 
300.513 shall be construed to affect the right of a parent to file an 
appeal of the due process hearing decision with the SEA under Sec. 
300.514(b), if a State level appeal is available.
    (c) Separate request for a due process hearing. Nothing in 
Sec. Sec. 300.500 through 300.536 shall be construed to preclude a 
parent from filing a separate due process complaint on an issue separate 
from a due process complaint already filed.
    (d) Findings and decision to advisory panel and general public. The 
public agency, after deleting any personally identifiable information, 
must--
    (1) Transmit the findings and decisions referred to in Sec. 
300.512(a)(5) to the State advisory panel established under Sec. 
300.167; and
    (2) Make those findings and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(3)(E) and (F), 1415(h)(4), 1415(o))



Sec. 300.514  Finality of decision; appeal; impartial review.

    (a) Finality of hearing decision. A decision made in a hearing 
conducted pursuant to Sec. Sec. 300.507 through 300.513 or Sec. Sec. 
300.530 through 300.534 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. 300.516.
    (b) Appeal of decisions; impartial review. (1) If the hearing 
required by Sec. 300.511 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) If there is an appeal, the SEA must conduct an impartial review 
of the findings and decision appealed. The official conducting the 
review must--
    (i) Examine the entire hearing record;

[[Page 85]]

    (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. 300.512 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, must--
    (1) Transmit the findings and decisions referred to in paragraph 
(b)(2)(vi) of this section to the State advisory panel established under 
Sec. 300.167; 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. 
300.516.

(Authority: 20 U.S.C. 1415(g) and (h)(4), 1415(i)(1)(A), 1415(i)(2))



Sec. 300.515  Timelines and convenience of hearings and reviews.

    (a) The public agency must ensure that not later than 45 days after 
the expiration of the 30 day period under Sec. 300.510(b), or the 
adjusted time periods described in Sec. 300.510(c)--
    (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 must 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(f)(1)(B)(ii), 1415(g), 1415(i)(1))



Sec. 300.516  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Sec. Sec. 300.507 through 300.513 or Sec. Sec. 300.530 through 
300.534 who does not have the right to an appeal under Sec. 300.514(b), 
and any party aggrieved by the findings and decision under Sec. 
300.514(b), has the right to bring a civil action with respect to the 
due process complaint notice requesting a due process hearing under 
Sec. 300.507 or Sec. Sec. 300.530 through 300.532. 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) Time limitation. The party bringing the action shall have 90 
days from the date of the decision of the hearing officer or, if 
applicable, the decision of the State review official, to file a civil 
action, or, if the State has an explicit time limitation for bringing 
civil actions under Part B of the Act, in the time allowed by that State 
law.
    (c) Additional requirements. In any action brought under paragraph 
(a) of this section, the court--
    (1) Receives the records of the administrative proceedings;
    (2) Hears additional evidence at the request of a party; and
    (3) Basing its decision on the preponderance of the evidence, grants 
the relief that the court determines to be appropriate.
    (d) 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.
    (e) 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,

[[Page 86]]

the procedures under Sec. Sec. 300.507 and 300.514 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) and (3)(A), 1415(l))



Sec. 300.517  Attorneys' fees.

    (a) In general. (1) 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--
    (i) The prevailing party who is the parent of a child with a 
disability;
    (ii) To a prevailing party who is an SEA or LEA against the attorney 
of a parent who files a complaint or subsequent cause of action that is 
frivolous, unreasonable, or without foundation, or against the attorney 
of a parent who continued to litigate after the litigation clearly 
became frivolous, unreasonable, or without foundation; or
    (iii) To a prevailing SEA or LEA against the attorney of a parent, 
or against the parent, if the parent's request for a due process hearing 
or subsequent cause of action was presented for any improper purpose, 
such as to harass, to cause unnecessary delay, or to needlessly increase 
the cost of litigation.
    (2) Nothing in this subsection shall be construed to affect section 
327 of the District of Columbia Appropriations Act, 2005.
    (b) Prohibition on use of funds. (1) Funds under Part B of the Act 
may not be used to pay attorneys' fees or costs of a party related to 
any 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) Award of fees. A court awards reasonable attorneys' fees under 
section 615(i)(3) of the Act consistent with the following:
    (1) 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 
paragraph.
    (2)(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;
    (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.
    (iii) A meeting conducted pursuant to Sec. 300.510 shall not be 
considered--
    (A) A meeting convened as a result of an administrative hearing or 
judicial action; or
    (B) An administrative hearing or judicial action for purposes of 
this section.
    (3) 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) 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, or the parent's attorney, 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;

[[Page 87]]

    (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 LEA 
the appropriate information in the due process request notice in 
accordance with Sec. 300.508.
    (5) 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. 300.518  Child's status during proceedings.

    (a) Except as provided in Sec. 300.533, during the pendency of any 
administrative or judicial proceeding regarding a due process complaint 
notice requesting a due process hearing 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 complaint involves an application for initial services 
under this part from a child who is transitioning from Part C of the Act 
to Part B and is no longer eligible for Part C services because the 
child has turned three, the public agency is not required to provide the 
Part C services that the child had been receiving. If the child is found 
eligible for special education and related services under Part B and the 
parent consents to the initial provision of special education and 
related services under Sec. 300.300(b), then the public agency must 
provide those special education and related services that are not in 
dispute between the parent and the public agency.
    (d) If the 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 and the 
parents for purposes of paragraph (a) of this section.

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



Sec. 300.519  Surrogate parents.

    (a) General. Each public agency must ensure that the rights of a 
child are protected when--
    (1) No parent (as defined in Sec. 300.30) can be identified;
    (2) The public agency, after reasonable efforts, cannot locate a 
parent;
    (3) The child is a ward of the State under the laws of that State; 
or
    (4) The child is an unaccompanied homeless youth as defined in 
section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
11434a(6)).
    (b) Duties of public agency. The duties of a public agency under 
paragraph (a) of this section include 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) Wards of the State. In the case of a child who is a ward of the 
State, the surrogate parent alternatively may be appointed by the judge 
overseeing the child's case, provided that the surrogate meets the 
requirements in paragraphs (d)(2)(i) and (e) of this section.
    (d) Criteria for selection of surrogate parents. (1) The public 
agency may select a surrogate parent in any way permitted under State 
law.
    (2) Public agencies must ensure that a person selected as a 
surrogate parent--
    (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 personal or professional interest that conflicts with 
the interest of the child the surrogate parent represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (e) Non-employee requirement; compensation. A person otherwise 
qualified

[[Page 88]]

to be a surrogate parent under paragraph (d) 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.
    (f) Unaccompanied homeless youth. In the case of a child who is an 
unaccompanied homeless youth, appropriate staff of emergency shelters, 
transitional shelters, independent living programs, and street outreach 
programs may be appointed as temporary surrogate parents without regard 
to paragraph (d)(2)(i) of this section, until a surrogate parent can be 
appointed that meets all of the requirements of paragraph (d) of this 
section.
    (g) Surrogate parent 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.
    (h) SEA responsibility. The SEA must make reasonable efforts to 
ensure the assignment of a surrogate parent not more than 30 days after 
a public agency determines that the child needs a surrogate parent.

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



Sec. 300.520  Transfer of parental rights at age of majority.

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

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



Sec. Sec. 300.521-300.529  [Reserved]

                          Discipline Procedures



Sec. 300.530  Authority of school personnel.

    (a) Case-by-case determination. School personnel may consider any 
unique circumstances on a case-by-case basis when determining whether a 
change in placement, consistent with the other requirements of this 
section, is appropriate for a child with a disability who violates a 
code of student conduct.
    (b) General. (1) School personnel under this section may remove a 
child with a disability who violates a code of student conduct from his 
or her current placement to an appropriate interim alternative 
educational setting, another setting, or suspension, for not more than 
10 consecutive school days (to the extent those alternatives are applied 
to children without disabilities), and for additional removals of not 
more than 10 consecutive school days in that same school year for 
separate incidents of misconduct (as long as those removals do not 
constitute a change of placement under Sec. 300.536).
    (2) After a child with a disability has been removed from his or her 
current placement for 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 paragraph (d) of this section.
    (c) Additional authority. For disciplinary changes in placement that 
would exceed 10 consecutive school days, if

[[Page 89]]

the behavior that gave rise to the violation of the school code is 
determined not to be a manifestation of the child's disability pursuant 
to paragraph (e) of this section, school personnel may apply the 
relevant disciplinary procedures to children with disabilities in the 
same manner and for the same duration as the procedures would be applied 
to children without disabilities, except as provided in paragraph (d) of 
this section.
    (d) Services. (1) A child with a disability who is removed from the 
child's current placement pursuant to paragraphs (c), or (g) of this 
section must--
    (i) Continue to receive educational services, as provided in Sec. 
300.101(a), so as to enable the child to continue to participate in the 
general education curriculum, although in another setting, and to 
progress toward meeting the goals set out in the child's IEP; and
    (ii) Receive, as appropriate, a functional behavioral assessment, 
and behavioral intervention services and modifications, that are 
designed to address the behavior violation so that it does not recur.
    (2) The services required by paragraph (d)(1), (d)(3), (d)(4), and 
(d)(5) of this section may be provided in an interim alternative 
educational setting.
    (3) A public agency is only required to provide services during 
periods of removal to a child with a disability who has been removed 
from his or her current placement for 10 school days or less in that 
school year, if it provides services to a child without disabilities who 
is similarly removed.
    (4) After a child with a disability has been removed from his or her 
current placement for 10 school days in the same school year, if the 
current removal is for not more than 10 consecutive school days and is 
not a change of placement under Sec. 300.536, school personnel, in 
consultation with at least one of the child's teachers, determine the 
extent to which services are needed, as provided in Sec. 300.101(a), so 
as to enable the child to continue to participate in the general 
education curriculum, although in another setting, and to progress 
toward meeting the goals set out in the child's IEP.
    (5) If the removal is a change of placement under Sec. 300.536, the 
child's IEP Team determines appropriate services under paragraph (d)(1) 
of this section.
    (e) Manifestation determination. (1) Within 10 school days of any 
decision to change the placement of a child with a disability because of 
a violation of a code of student conduct, the LEA, the parent, and 
relevant members of the child's IEP Team (as determined by the parent 
and the LEA) must review all relevant information in the student's file, 
including the child's IEP, any teacher observations, and any relevant 
information provided by the parents to determine--
    (i) If the conduct in question was caused by, or had a direct and 
substantial relationship to, the child's disability; or
    (ii) If the conduct in question was the direct result of the LEA's 
failure to implement the IEP.
    (2) The conduct must be determined to be a manifestation of the 
child's disability if the LEA, the parent, and relevant members of the 
child's IEP Team determine that a condition in either paragraph 
(e)(1)(i) or (1)(ii) of this section was met.
    (3) If the LEA, the parent, and relevant members of the child's IEP 
Team determine the condition described in paragraph (e)(1)(ii) of this 
section was met, the LEA must take immediate steps to remedy those 
deficiencies.
    (f) Determination that behavior was a manifestation. If the LEA, the 
parent, and relevant members of the IEP Team make the determination that 
the conduct was a manifestation of the child's disability, the IEP Team 
must--
    (1) Either--
    (i) Conduct a functional behavioral assessment, unless the LEA had 
conducted a functional behavioral assessment before the behavior that 
resulted in the change of placement occurred, and implement a behavioral 
intervention plan for the child; or
    (ii) If a behavioral intervention plan already has been developed, 
review the behavioral intervention plan, and modify it, as necessary, to 
address the behavior; and
    (2) Except as provided in paragraph (g) of this section, return the 
child to the placement from which the child was removed, unless the 
parent and the

[[Page 90]]

LEA agree to a change of placement as part of the modification of the 
behavioral intervention plan.
    (g) Special circumstances. School personnel may remove a student to 
an interim alternative educational setting for not more than 45 school 
days without regard to whether the behavior is determined to be a 
manifestation of the child's disability, if the child--
    (1) Carries a weapon to or possesses a weapon at school, on school 
premises, or to or at a school function under the jurisdiction of an SEA 
or an LEA;
    (2) Knowingly possesses or uses illegal drugs, or sells or solicits 
the sale of a controlled substance, while at school, on school premises, 
or at a school function under the jurisdiction of an SEA or an LEA; or
    (3) Has inflicted serious bodily injury upon another person while at 
school, on school premises, or at a school function under the 
jurisdiction of an SEA or an LEA.
    (h) Notification. On the date on which the decision is made to make 
a removal that constitutes a change of placement of a child with a 
disability because of a violation of a code of student conduct, the LEA 
must notify the parents of that decision, and provide the parents the 
procedural safeguards notice described in Sec. 300.504.
    (i) Definitions. 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 means a controlled substance; but does not include 
a controlled 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) Serious bodily injury has the meaning given the term ``serious 
bodily injury'' under paragraph (3) of subsection (h) of section 1365 of 
title 18, United States Code.
    (4) 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) and (7))



Sec. 300.531  Determination of setting.

    The child's IEP Team determines the interim alternative educational 
setting for services under Sec. 300.530(c), (d)(5), and (g).

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



Sec. 300.532  Appeal.

    (a) General. The parent of a child with a disability who disagrees 
with any decision regarding placement under Sec. Sec. 300.530 and 
300.531, or the manifestation determination under Sec. 300.530(e), or 
an LEA that believes that maintaining the current placement of the child 
is substantially likely to result in injury to the child or others, may 
appeal the decision by requesting a hearing. The hearing is requested by 
filing a complaint pursuant to Sec. Sec. 300.507 and 300.508(a) and 
(b).
    (b) Authority of hearing officer. (1) A hearing officer under Sec. 
300.511 hears, and makes a determination regarding an appeal under 
paragraph (a) of this section.
    (2) In making the determination under paragraph (b)(1) of this 
section, the hearing officer may--
    (i) Return the child with a disability to the placement from which 
the child was removed if the hearing officer determines that the removal 
was a violation of Sec. 300.530 or that the child's behavior was a 
manifestation of the child's disability; or
    (ii) Order a change of placement of the child with a disability to 
an appropriate interim alternative educational setting for not more than 
45 school days if the hearing officer determines that maintaining the 
current placement of the child is substantially likely to result in 
injury to the child or to others.
    (3) The procedures under paragraphs (a) and (b)(1) and (2) of this 
section may be repeated, if the LEA believes that returning the child to 
the original placement is substantially likely to result in injury to 
the child or to others.
    (c) Expedited due process hearing. (1) Whenever a hearing is 
requested under

[[Page 91]]

paragraph (a) of this section, the parents or the LEA involved in the 
dispute must have an opportunity for an impartial due process hearing 
consistent with the requirements of Sec. Sec. 300.507 and 300.508(a) 
through (c) and Sec. Sec. 300.510 through 300.514, except as provided 
in paragraph (c)(2) through (4) of this section.
    (2) The SEA or LEA is responsible for arranging the expedited due 
process hearing, which must occur within 20 school days of the date the 
complaint requesting the hearing is filed. The hearing officer must make 
a determination within 10 school days after the hearing.
    (3) Unless the parents and LEA agree in writing to waive the 
resolution meeting described in paragraph (c)(3)(i) of this section, or 
agree to use the mediation process described in Sec. 300.506--
    (i) A resolution meeting must occur within seven days of receiving 
notice of the due process complaint; and
    (ii) The due process hearing may proceed unless the matter has been 
resolved to the satisfaction of both parties within 15 days of the 
receipt of the due process complaint.
    (4) A State may establish different State-imposed procedural rules 
for expedited due process hearings conducted under this section than it 
has established for other due process hearings, but, except for the 
timelines as modified in paragraph (c)(3) of this section, the State 
must ensure that the requirements in Sec. Sec. 300.510 through 300.514 
are met.
    (5) The decisions on expedited due process hearings are appealable 
consistent with Sec. 300.514.

(Authority: 20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A))



Sec. 300.533  Placement during appeals.

    When an appeal under Sec. 300.532 has been made by either the 
parent or the LEA, 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 specified in Sec. 300.530(c) or (g), 
whichever occurs first, unless the parent and the SEA or LEA agree 
otherwise.

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.534  Protections for children not determined 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 a code of student conduct, may assert 
any of the protections provided for in this part if the public agency 
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. A public agency must be deemed to have 
knowledge that a child is a child with a disability if before the 
behavior that precipitated the disciplinary action occurred--
    (1) The parent of the child expressed concern in writing to 
supervisory or administrative personnel of the appropriate educational 
agency, or a teacher of the child, that the child is in need of special 
education and related services;
    (2) The parent of the child requested an evaluation of the child 
pursuant to Sec. Sec. 300.300 through 300.311; or
    (3) The teacher of the child, or other personnel of the LEA, 
expressed specific concerns about a pattern of behavior demonstrated by 
the child directly to the director of special education of the agency or 
to other supervisory personnel of the agency.
    (c) Exception. A public agency would not be deemed to have knowledge 
under paragraph (b) of this section if--
    (1) The parent of the child--
    (i) Has not allowed an evaluation of the child pursuant to 
Sec. Sec. 300.300 through 300.311; or
    (ii) Has refused services under this part; or
    (2) The child has been evaluated in accordance with Sec. Sec. 
300.300 through 300.311 and determined to not be a child with a 
disability under this part.
    (d) Conditions that apply if no basis of knowledge. (1) If a public 
agency does not have knowledge that a child is a

[[Page 92]]

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 disciplinary measures applied to 
children without disabilities who engage in comparable behaviors 
consistent with paragraph (d)(2) of this section.
    (2)(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. 300.530, 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 must 
provide special education and related services in accordance with this 
part, including the requirements of Sec. Sec. 300.530 through 300.536 
and section 612(a)(1)(A) of the Act.

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



Sec. 300.535  Referral to and action by law enforcement and judicial authorities.

    (a) Rule of construction. Nothing in this part prohibits an agency 
from reporting a crime committed by a child with a disability to 
appropriate authorities or prevents 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) Transmittal of records. (1) An agency reporting a crime 
committed by a child with a disability must ensure that copies of the 
special education and disciplinary records of the child are transmitted 
for consideration by the appropriate authorities to whom the agency 
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)(6))



Sec. 300.536  Change of placement because of disciplinary removals.

    (a) For purposes of removals of a child with a disability from the 
child's current educational placement under Sec. Sec. 300.530 through 
300.535, a change of placement occurs if--
    (1) The removal is for more than 10 consecutive school days; or
    (2) The child has been subjected to a series of removals that 
constitute a pattern--
    (i) Because the series of removals total more than 10 school days in 
a school year;
    (ii) Because the child's behavior is substantially similar to the 
child's behavior in previous incidents that resulted in the series of 
removals; and
    (iii) Because of such additional factors as the length of each 
removal, the total amount of time the child has been removed, and the 
proximity of the removals to one another.
    (b)(1) The public agency determines on a case-by-case basis whether 
a pattern of removals constitutes a change of placement.
    (2) This determination is subject to review through due process and 
judicial proceedings.

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



Sec. 300.537  State enforcement mechanisms.

    Notwithstanding Sec. Sec. 300.506(b)(7) and 300.510(d)(2), which 
provide for judicial enforcement of a written agreement reached as a 
result of mediation or a resolution meeting, there is nothing in this 
part that would prevent the SEA from using other mechanisms to seek 
enforcement of that agreement, provided that use of those mechanisms is 
not mandatory and does not delay or deny a party the right to seek 
enforcement of the written agreement in a State court of competent 
jurisdiction or in a district court of the United States.

(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B))

[[Page 93]]



Sec. Sec. 300.538-300.599  [Reserved]



    Subpart F_Monitoring, Enforcement, Confidentiality, and Program 
                               Information

            Monitoring, Technical Assistance, and Enforcement



Sec. 300.600  State monitoring and enforcement.

    (a) The State must--
    (1) Monitor the implementation of this part;
    (2) Make determinations annually about the performance of each LEA 
using the categories in Sec. 300.603(b)(1);
    (3) Enforce this part, consistent with Sec. 300.604, using 
appropriate enforcement mechanisms, which must include, if applicable, 
the enforcement mechanisms identified in Sec. 300.604(a)(1) (technical 
assistance), (a)(3) (conditions on funding of an LEA), (b)(2)(i) (a 
corrective action plan or improvement plan), (b)(2)(v) (withholding 
funds, in whole or in part, by the SEA), and (c)(2) (withholding funds, 
in whole or in part, by the SEA); and
    (4) Report annually on the performance of the State and of each LEA 
under this part, as provided in Sec. 300.602(b)(1)(i)(A) and (b)(2).
    (b) The primary focus of the State's monitoring activities must be 
on--
    (1) Improving educational results and functional outcomes for all 
children with disabilities; and
    (2) Ensuring that public agencies meet the program requirements 
under Part B of the Act, with a particular emphasis on those 
requirements that are most closely related to improving educational 
results for children with disabilities.
    (c) As a part of its responsibilities under paragraph (a) of this 
section, the State must use quantifiable indicators and such qualitative 
indicators as are needed to adequately measure performance in the 
priority areas identified in paragraph (d) of this section, and the 
indicators established by the Secretary for the State performance plans.
    (d) The State must monitor the LEAs located in the State, using 
quantifiable indicators in each of the following priority areas, and 
using such qualitative indicators as are needed to adequately measure 
performance in those areas:
    (1) Provision of FAPE in the least restrictive environment.
    (2) State exercise of general supervision, including child find, 
effective monitoring, the use of resolution meetings, mediation, and a 
system of transition services as defined in Sec. 300.43 and in 20 
U.S.C. 1437(a)(9).
    (3) Disproportionate representation of racial and ethnic groups in 
special education and related services, to the extent the representation 
is the result of inappropriate identification.
    (e) In exercising its monitoring responsibilities under paragraph 
(d) of this section, the State must ensure that when it identifies 
noncompliance with the requirements of this part by LEAs, the 
noncompliance is corrected as soon as possible, and in no case later 
than one year after the State's identification of the noncompliance.

(Approved by the Office of Management and Budget under control number 
1820-0624)

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

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]



Sec. 300.601  State performance plans and data collection.

    (a) General. Not later than December 3, 2005, each State must have 
in place a performance plan that evaluates the State's efforts to 
implement the requirements and purposes of Part B of the Act, and 
describes how the State will improve such implementation.
    (1) Each State must submit the State's performance plan to the 
Secretary for approval in accordance with the approval process described 
in section 616(c) of the Act.
    (2) Each State must review its State performance plan at least once 
every six years, and submit any amendments to the Secretary.
    (3) As part of the State performance plan, each State must establish 
measurable and rigorous targets for the indicators established by the 
Secretary under the priority areas described in Sec. 300.600(d).
    (b) Data collection. (1) Each State must collect valid and reliable 
information as needed to report annually to

[[Page 94]]

the Secretary on the indicators established by the Secretary for the 
State performance plans.
    (2) If the Secretary permits States to collect data on specific 
indicators through State monitoring or sampling, and the State collects 
the data through State monitoring or sampling, the State must collect 
data on those indicators for each LEA at least once during the period of 
the State performance plan.
    (3) Nothing in Part B of the Act shall be construed to authorize the 
development of a nationwide database of personally identifiable 
information on individuals involved in studies or other collections of 
data under Part B of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0624)

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



Sec. 300.602  State use of targets and reporting.

    (a) General. Each State must use the targets established in the 
State's performance plan under Sec. 300.601 and the priority areas 
described in Sec. 300.600(d) to analyze the performance of each LEA.
    (b) Public reporting and privacy--(1) Public report.
    (i) Subject to paragraph (b)(1)(ii) of this section, the State 
must--
    (A) Report annually to the public on the performance of each LEA 
located in the State on the targets in the State's performance plan as 
soon as practicable but no later than 120 days following the State's 
submission of its annual performance report to the Secretary under 
paragraph (b)(2) of this section; and
    (B) Make each of the following items available through public means: 
the State's performance plan, under Sec. 300.601(a); annual performance 
reports, under paragraph (b)(2) of this section; and the State's annual 
reports on the performance of each LEA located in the State, under 
paragraph (b)(1)(i)(A) of this section. In doing so, the State must, at 
a minimum, post the plan and reports on the SEA's Web site, and 
distribute the plan and reports to the media and through public 
agencies.
    (ii) If the State, in meeting the requirements of paragraph 
(b)(1)(i) of this section, collects performance data through State 
monitoring or sampling, the State must include in its report under 
paragraph (b)(1)(i)(A) of this section the most recently available 
performance data on each LEA, and the date the data were obtained.
    (2) State performance report. The State must report annually to the 
Secretary on the performance of the State under the State's performance 
plan.
    (3) Privacy. The State must not report to the public or the 
Secretary any information on performance that would result in the 
disclosure of personally identifiable information about individual 
children, or where the available data are insufficient to yield 
statistically reliable information.

(Approved by the Office of Management and Budget under control number 
1820-0624)

(Authority: 20 U.S.C. 1416(b)(2)(C))

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]



Sec. 300.603  Secretary's review and determination regarding State performance.

    (a) Review. The Secretary annually reviews the State's performance 
report submitted pursuant to Sec. 300.602(b)(2).
    (b) Determination--(1) General. Based on the information provided by 
the State in the State's annual performance report, information obtained 
through monitoring visits, and any other public information made 
available, the Secretary determines if the State--
    (i) Meets the requirements and purposes of Part B of the Act;
    (ii) Needs assistance in implementing the requirements of Part B of 
the Act;
    (iii) Needs intervention in implementing the requirements of Part B 
of the Act; or
    (iv) Needs substantial intervention in implementing the requirements 
of Part B of the Act.
    (2) Notice and opportunity for a hearing. (i) For determinations 
made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section, the 
Secretary provides reasonable notice and an opportunity for a hearing on 
those determinations.
    (ii) The hearing described in paragraph (b)(2) of this section 
consists of

[[Page 95]]

an opportunity to meet with the Assistant Secretary for Special 
Education and Rehabilitative Services to demonstrate why the Department 
should not make the determination described in paragraph (b)(1) of this 
section.

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



Sec. 300.604  Enforcement.

    (a) Needs assistance. If the Secretary determines, for two 
consecutive years, that a State needs assistance under Sec. 
300.603(b)(1)(ii) in implementing the requirements of Part B of the Act, 
the Secretary takes one or more of the following actions:
    (1) Advises the State of available sources of technical assistance 
that may help the State address the areas in which the State needs 
assistance, which may include assistance from the Office of Special 
Education Programs, other offices of the Department of Education, other 
Federal agencies, technical assistance providers approved by the 
Secretary, and other federally funded nonprofit agencies, and requires 
the State to work with appropriate entities. Such technical assistance 
may include--
    (i) The provision of advice by experts to address the areas in which 
the State needs assistance, including explicit plans for addressing the 
area for concern within a specified period of time;
    (ii) Assistance in identifying and implementing professional 
development, instructional strategies, and methods of instruction that 
are based on scientifically based research;
    (iii) Designating and using distinguished superintendents, 
principals, special education administrators, special education 
teachers, and other teachers to provide advice, technical assistance, 
and support; and
    (iv) Devising additional approaches to providing technical 
assistance, such as collaborating with institutions of higher education, 
educational service agencies, national centers of technical assistance 
supported under Part D of the Act, and private providers of 
scientifically based technical assistance.
    (2) Directs the use of State-level funds under section 611(e) of the 
Act on the area or areas in which the State needs assistance.
    (3) Identifies the State as a high-risk grantee and imposes special 
conditions on the State's grant under Part B of the Act.
    (b) Needs intervention. If the Secretary determines, for three or 
more consecutive years, that a State needs intervention under Sec. 
300.603(b)(1)(iii) in implementing the requirements of Part B of the 
Act, the following shall apply:
    (1) The Secretary may take any of the actions described in paragraph 
(a) of this section.
    (2) The Secretary takes one or more of the following actions:
    (i) Requires the State to prepare a corrective action plan or 
improvement plan if the Secretary determines that the State should be 
able to correct the problem within one year.
    (ii) Requires the State to enter into a compliance agreement under 
section 457 of the General Education Provisions Act, as amended, 20 
U.S.C. 1221 et seq. (GEPA), if the Secretary has reason to believe that 
the State cannot correct the problem within one year.
    (iii) For each year of the determination, withholds not less than 20 
percent and not more than 50 percent of the State's funds under section 
611(e) of the Act, until the Secretary determines the State has 
sufficiently addressed the areas in which the State needs intervention.
    (iv) Seeks to recover funds under section 452 of GEPA.
    (v) Withholds, in whole or in part, any further payments to the 
State under Part B of the Act.
    (vi) Refers the matter for appropriate enforcement action, which may 
include referral to the Department of Justice.
    (c) Needs substantial intervention. Notwithstanding paragraph (a) or 
(b) of this section, at any time that the Secretary determines that a 
State needs substantial intervention in implementing the requirements of 
Part B of the Act or that there is a substantial failure to comply with 
any condition of an SEA's or LEA's eligibility under Part B of the Act, 
the Secretary takes one or more of the following actions:
    (1) Recovers funds under section 452 of GEPA.
    (2) Withholds, in whole or in part, any further payments to the 
State under Part B of the Act.

[[Page 96]]

    (3) Refers the case to the Office of the Inspector General at the 
Department of Education.
    (4) Refers the matter for appropriate enforcement action, which may 
include referral to the Department of Justice.
    (d) Report to Congress. The Secretary reports to the Committee on 
Education and the Workforce of the House of Representatives and the 
Committee on Health, Education, Labor, and Pensions of the Senate within 
30 days of taking enforcement action pursuant to paragraph (a), (b), or 
(c) of this section, on the specific action taken and the reasons why 
enforcement action was taken.

(Authority: 20 U.S.C. 1416(e)(1)-(e)(3), (e)(5))



Sec. 300.605  Withholding funds.

    (a) Opportunity for hearing. Prior to withholding any funds under 
Part B of the Act, the Secretary provides reasonable notice and an 
opportunity for a hearing to the SEA involved, pursuant to the 
procedures in Sec. Sec. 300.180 through 300.183.
    (b) Suspension. Pending the outcome of any hearing to withhold 
payments under paragraph (a) of this section, the Secretary may suspend 
payments to a recipient, suspend the authority of the recipient to 
obligate funds under Part B of the Act, or both, after the recipient has 
been given reasonable notice and an opportunity to show cause why future 
payments or authority to obligate funds under Part B of the Act should 
not be suspended.
    (c) Nature of withholding. (1) If the Secretary determines that it 
is appropriate to withhold further payments under Sec. 300.604(b)(2) or 
(c)(2), the Secretary may determine--
    (i) That the withholding will be limited to programs or projects, or 
portions of programs or projects, that affected the Secretary's 
determination under Sec. 300.603(b)(1); or
    (ii) That the SEA must not make further payments under Part B of the 
Act to specified State agencies or LEAs that caused or were involved in 
the Secretary's determination under Sec. 300.603(b)(1).
    (2) Until the Secretary is satisfied that the condition that caused 
the initial withholding has been substantially rectified--
    (i) Payments to the State under Part B of the Act must be withheld 
in whole or in part; and
    (ii) Payments by the SEA under Part B of the Act must be limited to 
State agencies and LEAs whose actions did not cause or were not involved 
in the Secretary's determination under Sec. 300.603(b)(1), as the case 
may be.

(Authority: 20 U.S.C. 1416(e)(4), (e)(6))



Sec. 300.606  Public attention.

    Whenever a State receives notice that the Secretary is proposing to 
take or is taking an enforcement action pursuant to Sec. 300.604, the 
State must, by means of a public notice, take such actions as may be 
necessary to notify the public within the State of the pendency of an 
action pursuant to Sec. 300.604, including, at a minimum, by posting 
the notice on the SEA's Web site and distributing the notice to the 
media and through public agencies.

(Authority: 20 U.S.C. 1416(e)(7))

[73 FR 73028, Dec. 1, 2008]



Sec. 300.607  Divided State agency responsibility.

    For purposes of this subpart, if responsibility for ensuring that 
the requirements of Part B of the Act 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. 300.149(d), and if the Secretary finds that 
the failure to comply substantially with the provisions of Part B of the 
Act are related to a failure by the public agency, the Secretary takes 
appropriate corrective action to ensure compliance with Part B of the 
Act, except that--
    (a) Any reduction or withholding of payments to the State under 
Sec. 300.604 must be 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 SEA; and
    (b) Any withholding of funds under Sec. 300.604 must be limited to 
the specific

[[Page 97]]

agency responsible for the failure to comply with Part B of the Act.

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



Sec. 300.608  State enforcement.

    (a) If an SEA determines that an LEA is not meeting the requirements 
of Part B of the Act, including the targets in the State's performance 
plan, the SEA must prohibit the LEA from reducing the LEA's maintenance 
of effort under Sec. 300.203 for any fiscal year.
    (b) Nothing in this subpart shall be construed to restrict a State 
from utilizing any other authority available to it to monitor and 
enforce the requirements of Part B of the Act.

(Authority: 20 U.S.C. 1416(f); 20 U.S.C. 1412(a)(11))



Sec. 300.609  Rule of construction.

    Nothing in this subpart shall be construed to restrict the Secretary 
from utilizing any authority under GEPA, including the provisions in 34 
CFR parts 76, 77, 80, and 81 to monitor and enforce the requirements of 
the Act, including the imposition of special conditions under 34 CFR 
80.12.

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

                     Confidentiality of Information



Sec. 300.610  Confidentiality.

    The Secretary takes appropriate action, in accordance with section 
444 of GEPA, to ensure the protection of the confidentiality of any 
personally identifiable data, information, and records collected or 
maintained by the Secretary and by SEAs and LEAs pursuant to Part B of 
the Act, and consistent with Sec. Sec. 300.611 through 300.627.

(Authority: 20 U.S.C. 1417(c))



Sec. 300.611  Definitions.

    As used in Sec. Sec. 300.611 through 300.625--
    (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 99 (the regulations 
implementing the Family Educational Rights and Privacy Act of 1974, 20 
U.S.C. 1232g (FERPA)).
    (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. 300.612  Notice to parents.

    (a) The SEA must give notice that is adequate to fully inform 
parents about the requirements of Sec. 300.123, 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 FERPA 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. 300.613  Access rights.

    (a) Each participating agency must 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 
must comply with a request without unnecessary delay and before any 
meeting regarding an IEP, or any hearing pursuant to

[[Page 98]]

Sec. 300.507 or Sec. Sec. 300.530 through 300.532, or resolution 
session pursuant to Sec. 300.510, 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. 300.614  Record of access.

    Each participating agency must 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. 300.615  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))



Sec. 300.616  List of types and locations of information.

    Each participating agency must 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. 300.617  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. 300.618  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 must 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 must inform the parent of the refusal 
and advise the parent of the right to a hearing under Sec. 300.619.

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



Sec. 300.619  Opportunity for a hearing.

    The agency must, 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. 300.620  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the 
information is inaccurate, misleading or otherwise in

[[Page 99]]

violation of the privacy or other rights of the child, it must 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 must inform the parent of 
the parent's right to place in the records the agency 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. 300.621  Hearing procedures.

    A hearing held under Sec. 300.619 must be conducted according to 
the procedures in 34 CFR 99.22.

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



Sec. 300.622  Consent.

    (a) Parental consent must be obtained before personally identifiable 
information is disclosed to parties, other than officials of 
participating agencies in accordance with paragraph (b)(1) of this 
section, unless the information is contained in education records, and 
the disclosure is authorized without parental consent under 34 CFR part 
99.
    (b)(1) Except as provided in paragraphs (b)(2) and (b)(3) of this 
section, parental consent is not required before personally identifiable 
information is released to officials of participating agencies for 
purposes of meeting a requirement of this part.
    (2) Parental consent, or the consent of an eligible child who has 
reached the age of majority under State law, must be obtained before 
personally identifiable information is released to officials of 
participating agencies providing or paying for transition services in 
accordance with Sec. 300.321(b)(3).
    (3) If a child is enrolled, or is going to enroll in a private 
school that is not located in the LEA of the parent's residence, 
parental consent must be obtained before any personally identifiable 
information about the child is released between officials in the LEA 
where the private school is located and officials in the LEA of the 
parent's residence.

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



Sec. 300.623  Safeguards.

    (a) Each participating agency must protect the confidentiality of 
personally identifiable information at collection, storage, disclosure, 
and destruction stages.
    (b) One official at each participating agency must 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. 300.123 and 34 CFR part 99.
    (d) Each participating agency must 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. 300.624  Destruction of information.

    (a) The public agency must 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. 300.625  Children's rights.

    (a) The SEA must have in effect policies and procedures regarding 
the extent to which children are afforded

[[Page 100]]

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 FERPA in 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. 300.520, the rights regarding educational records in 
Sec. Sec. 300.613 through 300.624 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. 300.626  Enforcement.

    The SEA must have in effect the policies and procedures, including 
sanctions that the State uses, to ensure that its policies and 
procedures consistent with Sec. Sec. 300.611 through 300.625 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. 300.627  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 the Privacy Act of 1974, 5 U.S.C. 552a, the 
Secretary applies the requirements of 5 U.S.C. 552a(b)(1) and (b)(2), 
552a(b)(4) through (b)(11); 552a(c) through 552a(e)(3)(B); 
552a(e)(3)(D); 552a(e)(5) through (e)(10); 552a(h); 552a(m); and 
552a(n); and the regulations implementing those provisions in 34 CFR 
part 5b.

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

                      Reports--Program Information



Sec. 300.640  Annual report of children served--report requirement.

    (a) The SEA must annually report to the Secretary on the information 
required by section 618 of the Act at the times specified by the 
Secretary.
    (b) The SEA must submit the report on forms provided by the 
Secretary.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0518, 1820-0521, 1820-
0517, and 1820-0677)

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



Sec. 300.641  Annual report of children served--information required in the report.

    (a) For purposes of the annual report required by section 618 of the 
Act and Sec. 300.640, the State and the Secretary of the Interior must 
count and report the number of children with disabilities receiving 
special education and related services on any date between October 1 and 
December 1 of each year.
    (b) For the purpose of this reporting provision, a child's age is 
the child's actual age on the date of the child count.
    (c) The SEA may not report a child under more than one disability 
category.
    (d) If a child with a disability has more than one disability, the 
SEA must report that child 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.''

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0621, 1820-0521, and 1820-0517)

(Authority: 20 U.S.C. 1418(a), (b))



Sec. 300.642  Data reporting.

    (a) Protection of personally identifiable data. The data described 
in section 618(a) of the Act and in Sec. 300.641 must be publicly 
reported by each State in a manner that does not result in disclosure of 
data identifiable to individual children.

[[Page 101]]

    (b) Sampling. The Secretary may permit States and the Secretary of 
the Interior to obtain data in section 618(a) of the Act through 
sampling.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0518, 1820-0521, and 1820-0517)

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



Sec. 300.643  Annual report of children served--certification.

    The SEA must include in its report a certification signed by an 
authorized official of the agency that the information provided under 
Sec. 300.640 is an accurate and unduplicated count of children with 
disabilities receiving special education and related services on the 
dates in question.

(Approved by the Office of Management and Budget under control numbers 
1820-0030 and 1820-0043)

(Authority: 20 U.S.C. 1418(a)(3))



Sec. 300.644  Annual report of children served--criteria for counting children.

    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--
    (a) Provides them with both special education and related services 
that meet State standards;
    (b) Provides them only with special education, if a related service 
is not required, that meets State standards; or
    (c) In the case of children with disabilities enrolled by their 
parents in private schools, counts those children who are eligible under 
the Act and receive special education or related services or both that 
meet State standards under Sec. Sec. 300.132 through 300.144.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0521, and 1820-0517)

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



Sec. 300.645  Annual report of children served--other responsibilities 
of the SEA.

    In addition to meeting the other requirements of Sec. Sec. 300.640 
through 300.644, the SEA must--
    (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. 300.640(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 Sec. Sec. 300.640 
through 300.644; and
    (e) Ensure that documentation is maintained that enables the State 
and the Secretary to audit the accuracy of the count.

(Approved by the Office of Management and Budget under control numbers 
1820-0030, 1820-0043, 1820-0659, 1820-0621, 1820-0518, 1820-0521, and 
1820-0517)

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



Sec. 300.646  Disproportionality.

    (a) General. Each State that receives assistance under Part B of the 
Act, and the Secretary of the Interior, must provide for the collection 
and examination of data to determine if significant disproportionality 
based on race and ethnicity is occurring in the State and the LEAs of 
the State 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;
    (2) The placement in particular educational settings of these 
children; and
    (3) The incidence, duration, and type of disciplinary actions, 
including suspensions and expulsions.
    (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 must--

[[Page 102]]

    (1) 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 the Act.
    (2) Require any LEA identified under paragraph (a) of this section 
to reserve the maximum amount of funds under section 613(f) of the Act 
to provide comprehensive coordinated early intervening services to serve 
children in the LEA, particularly, but not exclusively, children in 
those groups that were significantly overidentified under paragraph (a) 
of this section; and
    (3) Require the LEA to publicly report on the revision of policies, 
practices, and procedures described under paragraph (b)(1) of this 
section.

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



 Subpart G_Authorization, Allotment, Use of Funds, and Authorization of 
                             Appropriations

                  Allotments, Grants, and Use of Funds



Sec. 300.700  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States, 
outlying areas, and freely associated States (as defined in Sec. 
300.717), 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 amount. The maximum amount of the grant a State may 
receive under section 611 of the Act is--
    (1) For fiscal years 2005 and 2006--
    (i) The number of children with disabilities in the State who are 
receiving special education and related services--
    (A) Aged three through five, if the State is eligible for a grant 
under section 619 of the Act; and
    (B) Aged 6 through 21; multiplied by--
    (ii) Forty (40) percent of the average per-pupil expenditure in 
public elementary schools and secondary schools in the United States (as 
defined in Sec. 300.717); and
    (2) For fiscal year 2007 and subsequent fiscal years--
    (i) The number of children with disabilities in the 2004-2005 school 
year in the State who received special education and related services--
    (A) Aged three through five if the State is eligible for a grant 
under section 619 of the Act; and
    (B) Aged 6 through 21; multiplied by
    (ii) Forty (40) percent of the average per-pupil expenditure in 
public elementary schools and secondary schools in the United States (as 
defined in Sec. 300.717);
    (iii) Adjusted by the rate of annual change in the sum of--
    (A) Eighty-five (85) percent of the State's population 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
    (B) Fifteen (15) percent of the State's population of children 
described in paragraph (b)(2)(iii)(A) of this section who are living in 
poverty.

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



Sec. 300.701  Outlying areas, freely associated States, and the Secretary 
of the Interior.

    (a) Outlying areas and freely associated States--(1) Funds reserved. 
From the amount appropriated for any fiscal year under section 611(i) of 
the Act, the Secretary reserves not more than one percent, which must be 
used--
    (i) To provide assistance to the outlying areas in accordance with 
their respective populations of individuals aged 3 through 21; and
    (ii) To provide each freely associated State a grant in the amount 
that the freely associated State received for fiscal year 2003 under 
Part B of the Act, but only if the freely associated State--
    (A) Meets the applicable requirements of Part B of the Act that 
apply to States.
    (B) Meets the requirements in paragraph (a)(2) of this section.
    (2) Application. Any freely associated State that wishes to receive 
funds under Part B of the Act must include, in its application for 
assistance--

[[Page 103]]

    (i) Information demonstrating that it will meet all conditions that 
apply to States under Part B of the Act.
    (ii) 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 with disabilities and 
to enhance its capacity to make FAPE available to all children with 
disabilities;
    (iii) 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
    (iv) Such other information and assurances as the Secretary may 
require.
    (3) 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 the outlying areas or to the freely associated States under 
Part B of the Act.
    (b) Secretary of the Interior. From the amount appropriated for any 
fiscal year under section 611(i) of the Act, the Secretary reserves 
1.226 percent to provide assistance to the Secretary of the Interior in 
accordance with Sec. Sec. 300.707 through 300.716.

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



Sec. 300.702  Technical assistance.

    (a) In general. The Secretary may reserve not more than one-half of 
one percent of the amounts appropriated under Part B of the Act for each 
fiscal year to support technical assistance activities authorized under 
section 616(i) of the Act.
    (b) Maximum amount. The maximum amount the Secretary may reserve 
under paragraph (a) of this section for any fiscal year is $25,000,000, 
cumulatively adjusted by 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(c))



Sec. 300.703  Allocations to States.

    (a) General. After reserving funds for technical assistance under 
Sec. 300.702, and for payments to the outlying areas, the freely 
associated States, and the Secretary of the Interior under Sec. 300.701 
(a) and (b) for a fiscal year, the Secretary allocates the remaining 
amount among the States in accordance with paragraphs (b), (c), and (d) 
of this section.
    (b) Special rule for use of fiscal year 1999 amount. If a State 
received any funds under section 611 of the Act for fiscal year 1999 on 
the basis of children aged three through five, but does not make FAPE 
available to all children with disabilities aged three through five in 
the State in any subsequent fiscal year, the Secretary computes the 
State's amount for fiscal year 1999, solely for the purpose of 
calculating the State's allocation in that subsequent year under 
paragraph (c) or (d) of this section, by subtracting the amount 
allocated to the State for fiscal year 1999 on the basis of those 
children.
    (c) Increase in funds. If the amount available for allocations to 
States under paragraph (a) of this section for a fiscal year 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:
    (1) Allocation of increase.--(i) General. Except as provided in 
paragraph (c)(2) of this section, the Secretary allocates for the fiscal 
year--
    (A) To each State the amount the State received under this section 
for fiscal year 1999;
    (B) Eighty-five (85) percent of any remaining funds to States on the 
basis of the States' 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
    (C) Fifteen (15) percent of those remaining funds to States on the 
basis of the States' relative populations of children described in 
paragraph (c)(1)(i)(B) of this section who are living in poverty.
    (ii) Data. 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.

[[Page 104]]

    (2) Limitations. Notwithstanding paragraph (c)(1) of this section, 
allocations under this section are subject to the following:
    (i) Preceding year allocation. No State's allocation may be less 
than its allocation under section 611 of the Act for the preceding 
fiscal year.
    (ii) Minimum. No State's allocation may be less than the greatest 
of--
    (A) The sum of--
    (1) The amount the State received under section 611 of the Act for 
fiscal year 1999; and
    (2) One third of one percent of the amount by which the amount 
appropriated under section 611(i) of the Act for the fiscal year exceeds 
the amount appropriated for section 611 of the Act for fiscal year 1999;
    (B) The sum of--
    (1) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (2) That amount multiplied by the percentage by which the increase 
in the funds appropriated for section 611 of the Act from the preceding 
fiscal year exceeds 1.5 percent; or
    (C) The sum of--
    (1) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (2) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated for section 611 of the Act from the preceding 
fiscal year.
    (iii) Maximum. Notwithstanding paragraph (c)(2)(ii) of this section, 
no State's allocation under paragraph (a) of this section may exceed the 
sum of--
    (A) The amount the State received under section 611 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated under section 611 of the 
Act from the preceding fiscal year.
    (3) Ratable reduction. If the amount available for allocations to 
States under paragraph (c) of this section is insufficient to pay those 
allocations in full, those allocations are ratably reduced, subject to 
paragraph (c)(2)(i) of this section.
    (d) Decrease in funds. If the amount available for allocations to 
States under paragraph (a) of this section for a fiscal year 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:
    (1) Amounts greater than fiscal year 1999 allocations. If the amount 
available for allocations under paragraph (a) of this section is greater 
than the amount allocated to the States for fiscal year 1999, each State 
is allocated the sum of--
    (i) 1999 amount. The amount the State received under section 611 of 
the Act for fiscal year 1999; and
    (ii) Remaining funds. An amount that bears the same relation to any 
remaining funds as the increase the State received under section 611 of 
the Act for the preceding fiscal year over fiscal year 1999 bears to the 
total of all such increases for all States.
    (2) Amounts equal to or less than fiscal year 1999 allocations.--(i) 
General. If the amount available for allocations under paragraph (a) of 
this section is equal to or less than the amount allocated to the States 
for fiscal year 1999, each State is allocated the amount it received for 
fiscal year 1999.
    (ii) Ratable reduction. If the amount available for allocations 
under paragraph (d) of this section is insufficient to make the 
allocations described in paragraph (d)(2)(i) of this section, those 
allocations are ratably reduced.

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



Sec. 300.704  State-level activities.

    (a) State administration. (1) For the purpose of administering Part 
B of the Act, including paragraph (c) of this section, section 619 of 
the Act, and 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--
    (i) Each State may reserve for each fiscal year not more than the 
maximum amount the State was eligible to reserve for State 
administration under section 611 of the Act for fiscal year 2004 or 
$800,000 (adjusted in accordance with paragraph (a)(2) of this section), 
whichever is greater; and
    (ii) Each outlying area may reserve for each fiscal year not more 
than five percent of the amount the outlying

[[Page 105]]

area receives under Sec. 300.701(a) for the fiscal year or $35,000, 
whichever is greater.
    (2) For each fiscal year, beginning with fiscal year 2005, the 
Secretary cumulatively adjusts--
    (i) The maximum amount the State was eligible to reserve for State 
administration under section 611 of the Act for fiscal year 2004; and
    (ii) $800,000, by 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.
    (3) Prior to expenditure of funds under paragraph (a) of this 
section, the State must certify to the Secretary that the arrangements 
to establish responsibility for services pursuant to section 
612(a)(12)(A) of the Act are current.
    (4) Funds reserved under paragraph (a)(1) of this section may be 
used for the administration of Part C of the Act, if the SEA is the lead 
agency for the State under that Part.
    (b) Other State-level activities. (1) States may reserve a portion 
of their allocations for other State-level activities. The maximum 
amount that a State may reserve for other State-level activities is as 
follows:
    (i) If the amount that the State sets aside for State administration 
under paragraph (a) of this section is greater than $850,000 and the 
State opts to finance a high cost fund under paragraph (c) of this 
section:
    (A) For fiscal years 2005 and 2006, 10 percent of the State's 
allocation under Sec. 300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to 10 percent of the State's allocation for fiscal year 2006 under 
Sec. 300.703 adjusted cumulatively for inflation.
    (ii) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is greater than 
$850,000 and the State opts not to finance a high cost fund under 
paragraph (c) of this section--
    (A) For fiscal years 2005 and 2006, nine percent of the State's 
allocation under Sec. 300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to nine percent of the State's allocation for fiscal year 2006 
adjusted cumulatively for inflation.
    (iii) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is less than or equal 
to $850,000 and the State opts to finance a high cost fund under 
paragraph (c) of this section:
    (A) For fiscal years 2005 and 2006, 10.5 percent of the State's 
allocation under Sec. 300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to 10.5 percent of the State's allocation for fiscal year 2006 
under Sec. 300.703 adjusted cumulatively for inflation.
    (iv) If the amount that the State sets aside for State 
administration under paragraph (a) of this section is equal to or less 
than $850,000 and the State opts not to finance a high cost fund under 
paragraph (c) of this section:
    (A) For fiscal years 2005 and 2006, nine and one-half percent of the 
State's allocation under Sec. 300.703.
    (B) For fiscal year 2007 and subsequent fiscal years, an amount 
equal to nine and one-half percent of the State's allocation for fiscal 
year 2006 under Sec. 300.703 adjusted cumulatively for inflation.
    (2) The adjustment for inflation is the rate of inflation as 
measured by the percentage of 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.
    (3) Some portion of the funds reserved under paragraph (b)(1) of 
this section must be used to carry out the following activities:
    (i) For monitoring, enforcement, and complaint investigation; and
    (ii) To establish and implement the mediation process required by 
section 615(e) of the Act, including providing for the costs of 
mediators and support personnel;
    (4) Funds reserved under paragraph (b)(1) of this section also may 
be used to carry out the following activities:

[[Page 106]]

    (i) For support and direct services, including technical assistance, 
personnel preparation, and professional development and training;
    (ii) To support paperwork reduction activities, including expanding 
the use of technology in the IEP process;
    (iii) To assist LEAs in providing positive behavioral interventions 
and supports and mental health services for children with disabilities;
    (iv) To improve the use of technology in the classroom by children 
with disabilities to enhance learning;
    (v) To support the use of technology, including technology with 
universal design principles and assistive technology devices, to 
maximize accessibility to the general education curriculum for children 
with disabilities;
    (vi) Development and implementation of transition programs, 
including coordination of services with agencies involved in supporting 
the transition of students with disabilities to postsecondary 
activities;
    (vii) To assist LEAs in meeting personnel shortages;
    (viii) To support capacity building activities and improve the 
delivery of services by LEAs to improve results for children with 
disabilities;
    (ix) Alternative programming for children with disabilities who have 
been expelled from school, and services for children with disabilities 
in correctional facilities, children enrolled in State-operated or 
State-supported schools, and children with disabilities in charter 
schools;
    (x) To support the development and provision of appropriate 
accommodations for children with disabilities, or the development and 
provision of alternate assessments that are valid and reliable for 
assessing the performance of children with disabilities, in accordance 
with sections 1111(b) and 6111 of the ESEA; and
    (xi) To provide technical assistance to schools and LEAs, and direct 
services, including supplemental educational services as defined in 
section 1116(e) of the ESEA to children with disabilities, in schools or 
LEAs identified for improvement under section 1116 of the ESEA on the 
sole basis of the assessment results of the disaggregated subgroup of 
children with disabilities, including providing professional development 
to special and regular education teachers, who teach children with 
disabilities, based on scientifically based research to improve 
educational instruction, in order to improve academic achievement to 
meet or exceed the objectives established by the State under section 
1111(b)(2)(G) of the ESEA.
    (c) Local educational agency high cost fund. (1) In general--
    (i) For the purpose of assisting LEAs (including a charter school 
that is an LEA or a consortium of LEAs) in addressing the needs of high 
need children with disabilities, each State has the option to reserve 
for each fiscal year 10 percent of the amount of funds the State 
reserves for other State-level activities under paragraph (b)(1) of this 
section--
    (A) To finance and make disbursements from the high cost fund to 
LEAs in accordance with paragraph (c) of this section during the first 
and succeeding fiscal years of the high cost fund; and
    (B) To support innovative and effective ways of cost sharing by the 
State, by an LEA, or among a consortium of LEAs, as determined by the 
State in coordination with representatives from LEAs, subject to 
paragraph (c)(2)(ii) of this section.
    (ii) For purposes of paragraph (c) of this section, local 
educational agency includes a charter school that is an LEA, or a 
consortium of LEAs.
    (2)(i) A State must not use any of the funds the State reserves 
pursuant to paragraph (c)(1)(i) of this section, which are solely for 
disbursement to LEAs, for costs associated with establishing, 
supporting, and otherwise administering the fund. The State may use 
funds the State reserves under paragraph (a) of this section for those 
administrative costs.
    (ii) A State must not use more than 5 percent of the funds the State 
reserves pursuant to paragraph (c)(1)(i) of this section for each fiscal 
year to support innovative and effective ways of cost sharing among 
consortia of LEAs.
    (3)(i) The SEA must develop, not later than 90 days after the State 
reserves funds under paragraph (c)(1)(i) of this section, annually 
review, and

[[Page 107]]

amend as necessary, a State plan for the high cost fund. Such State plan 
must--
    (A) Establish, in consultation and coordination with representatives 
from LEAs, a definition of a high need child with a disability that, at 
a minimum--
    (1) Addresses the financial impact a high need child with a 
disability has on the budget of the child's LEA; and
    (2) Ensures that the cost of the high need child with a disability 
is greater than 3 times the average per pupil expenditure (as defined in 
section 9101 of the ESEA) in that State;
    (B) Establish eligibility criteria for the participation of an LEA 
that, at a minimum, take into account the number and percentage of high 
need children with disabilities served by an LEA;
    (C) Establish criteria to ensure that placements supported by the 
fund are consistent with the requirements of Sec. Sec. 300.114 through 
300.118;
    (D) Develop a funding mechanism that provides distributions each 
fiscal year to LEAs that meet the criteria developed by the State under 
paragraph(c)(3)(i)(B) of this section;
    (E) Establish an annual schedule by which the SEA must make its 
distributions from the high cost fund each fiscal year; and
    (F) If the State elects to reserve funds for supporting innovative 
and effective ways of cost sharing under paragraph (c)(1)(i)(B) of this 
section, describe how these funds will be used.
    (ii) The State must make its final State plan available to the 
public not less than 30 days before the beginning of the school year, 
including dissemination of such information on the State Web site.
    (4)(i) Each SEA must make all annual disbursements from the high 
cost fund established under paragraph (c)(1)(i) of this section in 
accordance with the State plan published pursuant to paragraph (c)(3) of 
this section.
    (ii) The costs associated with educating a high need child with a 
disability, as defined under paragraph (c)(3)(i)(A) of this section, are 
only those costs associated with providing direct special education and 
related services to the child that are identified in that child's IEP, 
including the cost of room and board for a residential placement 
determined necessary, consistent with Sec. 300.114, to implement a 
child's IEP.
    (iii) The funds in the high cost fund remain under the control of 
the State until disbursed to an LEA to support a specific child who 
qualifies under the State plan for the high cost funds or distributed to 
LEAs, consistent with paragraph (c)(9) of this section.
    (5) The disbursements under paragraph (c)(4) of this section must 
not be used to support legal fees, court costs, or other costs 
associated with a cause of action brought on behalf of a child with a 
disability to ensure FAPE for such child.
    (6) Nothing in paragraph (c) of this section--
    (i) Limits or conditions the right of a child with a disability who 
is assisted under Part B of the Act to receive FAPE pursuant to section 
612(a)(1) of the Act in the least restrictive environment pursuant to 
section 612(a)(5) of the Act; or
    (ii) Authorizes an SEA or LEA to establish a limit on what may be 
spent on the education of a child with a disability.
    (7) Notwithstanding the provisions of paragraphs (c)(1) through (6) 
of this section, a State may use funds reserved pursuant to paragraph 
(c)(1)(i) of this section for implementing a placement neutral cost 
sharing and reimbursement program of high need, low incidence, 
catastrophic, or extraordinary aid to LEAs that provides services to 
high need children based on eligibility criteria for such programs that 
were created not later than January 1, 2004, and are currently in 
operation, if such program serves children that meet the requirement of 
the definition of a high need child with a disability as described in 
paragraph (c)(3)(i)(A) of this section.
    (8) Disbursements provided under paragraph (c) of this section must 
not be used to pay costs that otherwise would be reimbursed as medical 
assistance for a child with a disability under the State Medicaid 
program under Title XIX of the Social Security Act.

[[Page 108]]

    (9) Funds reserved under paragraph (c)(1)(i) of this section from 
the appropriation for any fiscal year, but not expended pursuant to 
paragraph (c)(4) of this section before the beginning of their last year 
of availability for obligation, must be allocated to LEAs in the same 
manner as other funds from the appropriation for that fiscal year are 
allocated to LEAs under Sec. 300.705 during their final year of 
availability.
    (d) Inapplicability of certain prohibitions. A State may use funds 
the State reserves under paragraphs (a) and (b) of this section without 
regard to--
    (1) The prohibition on commingling of funds in Sec. 300.162(b).
    (2) The prohibition on supplanting other funds in Sec. 300.162(c).
    (e) Special rule for increasing funds. A State may use funds the 
State reserves under paragraph (a)(1) of this section as a result of 
inflationary increases under paragraph (a)(2) of this section to carry 
out activities authorized under paragraph(b)(4)(i), (iii), (vii), or 
(viii) of this section.
    (f) Flexibility in using funds for Part C. Any State eligible to 
receive a grant under section 619 of the Act may use funds made 
available under paragraph (a)(1) of this section, Sec. 300.705(c), or 
Sec. 300.814(e) to develop and implement a State policy jointly with 
the lead agency under Part C of the Act and the SEA to provide early 
intervention services (which must include an educational component that 
promotes school readiness and incorporates preliteracy, language, and 
numeracy skills) in accordance with Part C of the Act to children with 
disabilities who are eligible for services under section 619 of the Act 
and who previously received services under Part C of the Act until the 
children enter, or are eligible under State law to enter, kindergarten, 
or elementary school as appropriate.

(Approved by the Office of Management and Budget under control number 
1820-0600)

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

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.705  Subgrants to LEAs.

    (a) Subgrants required. Each State that receives a grant under 
section 611 of the Act for any fiscal year must distribute any funds the 
State does not reserve under Sec. 300.704 to LEAs (including public 
charter schools that operate as LEAs) in the State that have established 
their eligibility under section 613 of the Act for use in accordance 
with Part B of the Act. Effective with funds that become available on 
the July 1, 2009, each State must distribute funds to eligible LEAs, 
including public charter schools that operate as LEAs, even if the LEA 
is not serving any children with disabilities.
    (b) Allocations to LEAs. For each fiscal year for which funds are 
allocated to States under Sec. 300.703, each State shall allocate funds 
as follows:
    (1) Base payments. The State first must award each LEA described in 
paragraph (a) of this section the amount the LEA would have received 
under section 611 of the Act for fiscal year 1999, if the State had 
distributed 75 percent of its grant for that year under section 611(d) 
of the Act, as that section was then in effect.
    (2) Base payment adjustments. For any fiscal year after 1999--
    (i) If a new LEA is created, the State must 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. 300.703(b), currently provided special 
education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA, the 
State must combine the base allocations of the merged LEAs;
    (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 must 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. 
300.703(b), currently provided special education by each affected LEA; 
and

[[Page 109]]

    (iv) If an LEA received a base payment of zero in its first year of 
operation, the SEA must adjust the base payment for the first fiscal 
year after the first annual child count in which the LEA reports that it 
is serving any children with disabilities. The State must 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 LEA, among the LEA and affected 
LEAs based on the relative numbers of children with disabilities ages 3 
through 21, or ages 6 through 21 currently provided special education by 
each of the LEAs. This requirement takes effect with funds that become 
available on July 1, 2009.
    (3) Allocation of remaining funds. After making allocations under 
paragraph (b)(1) of this section, as adjusted by paragraph (b)(2) of 
this section, the State must--
    (i) Allocate 85 percent of any remaining funds to those LEAs on the 
basis of the relative numbers of children enrolled in public and private 
elementary schools and secondary schools within the LEA's jurisdiction; 
and
    (ii) Allocate 15 percent of those remaining funds to those LEAs in 
accordance with their relative numbers of children living in poverty, as 
determined by the SEA.
    (c) Reallocation of LEA funds. (1) 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 this part that are not 
needed by that LEA 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 served by those other 
LEAs. The SEA may also retain those funds for use at the State level to 
the extent the State has not reserved the maximum amount of funds it is 
permitted to reserve for State-level activities pursuant to Sec. 
300.704.
    (2) After an SEA distributes funds under this part to an eligible 
LEA that is not serving any children with disabilities, as provided in 
paragraph (a) of this section, the SEA must determine, within a 
reasonable period of time prior to the end of the carryover period in 34 
CFR 76.709, whether the LEA has obligated the funds. The SEA may 
reallocate any of those funds not obligated by the LEA 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 
served by those other LEAs. The SEA may also retain those funds for use 
at the State level to the extent the State has not reserved the maximum 
amount of funds it is permitted to reserve for State-level activities 
pursuant to Sec. 300.704.

(Approved by the Office of Management and Budget under control number 
1820-0030)

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

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73028, Dec. 1, 2008]



Sec. 300.706  [Reserved]

                        Secretary of the Interior



Sec. 300.707  Use of amounts by Secretary of the Interior.

    (a) Definitions. For purposes of Sec. Sec. 300.707 through 300.716, 
the following definitions apply:
    (1) Reservation means Indian Country as defined in 18 U.S.C. 1151.
    (2) Tribal governing body has the definition given that term in 25 
U.S.C. 2021(19).
    (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 schools 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 section 611(b)(2) of the Act for that fiscal 
year. Of the amount described in the preceding sentence, after the 
Secretary of the Interior reserves funds for administration under Sec. 
300.710, 80 percent must be allocated to such schools by July 1 of that

[[Page 110]]

fiscal year and 20 percent must be allocated to such schools by 
September 30 of that fiscal year.
    (c) Additional requirement. With respect to all other children aged 
3 to 21, inclusive, on reservations, the SEA of the State in which the 
reservation is located must ensure that all of the requirements of Part 
B of the Act are implemented.

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



Sec. 300.708  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec. 300.707 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) through (9), 
(10)(B) through (C), (11) through (12), (14) through (16), (19), and 
(21) through (25) 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), (7) 
through (9) and section 613(i) of the Act (references to LEAs in these 
sections must be read as references to elementary schools and secondary 
schools for Indian children operated or funded by the Secretary of the 
Interior);
    (d) Meets the requirements of section 616 of the Act that apply to 
States (references to LEAs in section 616 of the Act must be read as 
references to elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior).
    (e) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a) through (d) of this section;
    (f) 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;
    (g) 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 
related to the requirements described in paragraphs (a) through (d) of 
this section;
    (h) Includes an assurance that the Secretary of the Interior 
provides the information that the Secretary may require to comply with 
section 618 of the Act;
    (i)(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 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 (where appropriate) equipment 
and medical or personal supplies, as needed for a child with a 
disability to remain in a school or program; and
    (j) 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 Sec. Sec. 300.709 
through 300.711 and Sec. Sec. 300.713 through 300.716, 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. The Secretary withholds payments under Sec. 300.707 with 
respect to the requirements described in this section in the same manner 
as the Secretary withholds payments under section 616(e)(6) of the Act.

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



Sec. 300.709  Public participation.

    In fulfilling the requirements of Sec. 300.708 the Secretary of the 
Interior must provide for public participation consistent with Sec. 
300.165.

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



Sec. 300.710  Use of funds under Part B of the Act.

    (a) The Secretary of the Interior may reserve five percent of its 
payment

[[Page 111]]

under Sec. 300.707(b) in any fiscal year, or $500,000, whichever is 
greater, for administrative costs in carrying out the provisions of 
Sec. Sec. 300.707 through 300.709, 300.711, and 300.713 through 
300.716.
    (b) Payments to the Secretary of the Interior under Sec. 300.712 
must be used in accordance with that section.

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



Sec. 300.711  Early intervening services.

    (a) The Secretary of the Interior may allow each elementary school 
and secondary school for Indian children operated or funded by the 
Secretary of the Interior to use not more than 15 percent of the amount 
the school receives under Sec. 300.707(b) for any fiscal year, in 
combination with other amounts (which may include amounts other than 
education funds), to develop and implement coordinated, early 
intervening services, which may include interagency financing 
structures, for children in kindergarten through grade 12 (with a 
particular emphasis on children in kindergarten through grade three) who 
have not been identified as needing special education or related 
services but who need additional academic and behavioral support to 
succeed in a general education environment, in accordance with section 
613(f) of the Act.
    (b) Each elementary school and secondary school for Indian children 
operated or funded by the Secretary of the Interior that develops and 
maintains coordinated early intervening services in accordance with 
section 613(f) of the Act and Sec. 300.226 must annually report to the 
Secretary of the Interior in accordance with section 613(f) of the Act.

(Authority: 20 U.S.C. 1411(h) and 1413(f))



Sec. 300.712  Payments for education and services for Indian children with
disabilities aged three through five.

    (a) General. With funds appropriated under section 611(i) 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 tribes or tribal organizations to provide for the 
coordination of assistance for special education and related services 
for children with disabilities aged three through five on reservations 
served by elementary schools 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. 300.701(b).
    (b) Distribution of funds. The Secretary of the Interior must 
distribute the total amount of the payment under paragraph (a) of this 
section by allocating to each tribe, tribal organization, or consortium 
an amount based on the number of children with disabilities aged three 
through five 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 tribe or tribal organization must 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 three through 
five, 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 tribe or tribal organization, as appropriate, must 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 must 
provide to the Secretary of the Interior a biennial report of activities 
undertaken under this section, including the number of contracts and 
cooperative agreements entered

[[Page 112]]

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 year in which the report is made. The Secretary 
of the Interior must include a summary of this information on a biennial 
basis in the report to the Secretary required under section 611(h) 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(h)(4))



Sec. 300.713  Plan for coordination of services.

    (a) The Secretary of the Interior must develop and implement a plan 
for the coordination of services for all Indian children with 
disabilities residing on reservations served by elementary schools and 
secondary schools for Indian children operated or funded by the 
Secretary of the Interior.
    (b) The plan must provide for the coordination of services 
benefiting those children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, other Federal agencies, 
State educational agencies, and State, local, and tribal juvenile and 
adult correctional facilities.
    (c) In developing the plan, the Secretary of the Interior must 
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; to 
SEAs, 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(h)(5))



Sec. 300.714  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act, the 
Secretary of the Interior must establish, under the BIA, an advisory 
board composed of individuals involved in or concerned with the 
education and provision of services to Indian infants, toddlers, 
children, and youth with disabilities, including Indians with 
disabilities, Indian parents or guardians of such 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 must--
    (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 of the Interior's responsibilities 
described in section 611(h) 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 early intervention services or educational 
programming for Indian infants, toddlers, and children with 
disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec. 300.708(h).

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



Sec. 300.715  Annual reports.

    (a) In general. The advisory board established under Sec. 300.714 
must prepare and submit to the Secretary of the Interior and to Congress 
an annual report

[[Page 113]]

containing a description of the activities of the advisory board for the 
preceding year.
    (b) Availability. The Secretary of the Interior must make available 
to the Secretary the report described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1411(h)(7))



Sec. 300.716  Applicable regulations.

    The Secretary of the Interior must comply with the requirements of 
Sec. Sec. 300.103 through 300.108, 300.110 through 300.124, 300.145 
through 300.154, 300.156 through 300.160, 300.165, 300.170 through 
300.186, 300.226, 300.300 through 300.606, 300.610 through 300.646, and 
300.707 through 300.716.

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

                 Definitions that Apply to this Subpart



Sec. 300.717  Definitions applicable to allotments, grants, and use of funds.

    As used in this subpart--
    (a) Freely associated States means the Republic of the Marshall 
Islands, the Federated States of Micronesia, and the Republic of Palau;
    (b) Outlying areas means the United States Virgin Islands, Guam, 
American Samoa, and the Commonwealth of the Northern Mariana Islands;
    (c) State means each of the 50 States, the District of Columbia, and 
the Commonwealth of Puerto Rico; and
    (d) Average per-pupil expenditure in public elementary schools and 
secondary schools in the United States means--
    (1) Without regard to the source of funds--
    (i) The aggregate current expenditures, during the second fiscal 
year preceding the fiscal year for which the 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
    (ii) Any direct expenditures by the State for the operation of those 
agencies; divided by (2) 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. 1401(22), 1411(b)(1) (C) and (g))

  Acquisition of Equipment and Construction or Alteration of Facilities



Sec. 300.718  Acquisition of equipment and construction or alteration of
facilities.

    (a) General. If the Secretary determines that a program authorized 
under Part B of the Act will be improved by permitting program funds to 
be used to acquire appropriate equipment, or to 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 
Standards for Buildings and Facilities''); or
    (2) Appendix A of subpart 101-19.6 of title 41, Code of Federal 
Regulations (commonly known as the ``Uniform Federal Accessibility 
Standards'').

(Authority: 20 U.S.C. 1404)



        Subpart H_Preschool Grants for Children with Disabilities



Sec. 300.800  In general.

    The Secretary provides grants under section 619 of the Act to assist 
States to provide special education and related services in accordance 
with Part B of the Act--
    (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))



Sec. Sec. 300.801-300.802  [Reserved]



Sec. 300.803  Definition of State.

    As used in this subpart, State means each of the 50 States, the 
District of

[[Page 114]]

Columbia, and the Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1419(i))



Sec. 300.804  Eligibility.

    A State is eligible for a grant under section 619 of the Act if the 
State--
    (a) Is eligible under section 612 of the Act to receive a grant 
under Part B of the Act; and
    (b) Makes FAPE available to all children with disabilities, aged 
three through five, residing in the State.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1419(b))



Sec. 300.805  [Reserved]



Sec. 300.806  Eligibility for financial assistance.

    No State or LEA, or other public institution or agency, may receive 
a grant or enter into a contract or cooperative agreement under subpart 
2 or 3 of Part D of the Act that relates exclusively to programs, 
projects, and activities pertaining to children aged three through five 
years, unless the State is eligible to receive a grant under section 
619(b) of the Act.

(Authority: 20 U.S.C. 1481(e))



Sec. 300.807  Allocations to States.

    The Secretary allocates the amount made available to carry out 
section 619 of the Act for a fiscal year among the States in accordance 
with Sec. Sec. 300.808 through 300.810.

(Authority: 20 U.S.C. 1419(c)(1))



Sec. 300.808  Increase in funds.

    If the amount available for allocation to States under Sec. 300.807 
for a fiscal year 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. 300.809, the Secretary--
    (1) Allocates to each State the amount the State received under 
section 619 of the Act for fiscal year 1997;
    (2) Allocates 85 percent of any remaining funds to States on the 
basis of the States' relative populations of children aged three through 
five; and
    (3) Allocates 15 percent of those remaining funds to States on the 
basis of the States' relative populations of all children aged three 
through five 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. 300.809  Limitations.

    (a) Notwithstanding Sec. 300.808, allocations under that section 
are subject to the following:
    (1) No State's allocation may be less than its allocation under 
section 619 of the Act for the preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount the State received under section 619 of the Act 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 for the fiscal year exceeds 
the amount appropriated for section 619 of the Act for fiscal year 1997;
    (ii) The sum of--
    (A) The amount the State received under section 619 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase 
in the funds appropriated under section 619 of the Act from the 
preceding fiscal year exceeds 1.5 percent; or
    (iii) The sum of--
    (A) The amount the State received under section 619 of the Act for 
the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated under section 619 of the Act from the 
preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's 
allocation under Sec. 300.808 may exceed the sum of--
    (1) The amount the State received under section 619 of the Act for 
the preceding fiscal year; and

[[Page 115]]

    (2) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated under section 619 of the 
Act from the preceding fiscal year.
    (c) If the amount available for allocation to States under Sec. 
300.808 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. 1419(c)(2)(B) and (c)(2)(C))



Sec. 300.810  Decrease in funds.

    If the amount available for allocations to States under Sec. 
300.807 for a fiscal year 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 the State received under section 619 of the Act for 
fiscal year 1997; and
    (2) An amount that bears the same relation to any remaining funds as 
the increase the State received under section 619 of the Act for the 
preceding fiscal year over fiscal year 1997 bears to the total of all 
such increases for all States.
    (b) If the amount available for allocations is equal to or less than 
the amount allocated to the States for fiscal year 1997, each State is 
allocated the amount the State received for fiscal year 1997, ratably 
reduced, if necessary.

(Authority: 20 U.S.C. 1419(c)(3))



Sec. 300.811  [Reserved]



Sec. 300.812  Reservation for State activities.

    (a) Each State may reserve not more than the amount described in 
paragraph (b) of this section for administration and other State-level 
activities in accordance with Sec. Sec. 300.813 and 300.814.
    (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))

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



Sec. 300.813  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), a State may use not more than 
20 percent of the maximum amount the State may reserve under Sec. 
300.812 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.

(Authority: 20 U.S.C. 1419(e))



Sec. 300.814  Other State-level activities.

    Each State must use any funds the State reserves under Sec. 300.812 
and does not use for administration under Sec. 300.813--
    (a) For 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 three or older than five 
as long as those services also benefit children with disabilities aged 
three through five;
    (b) For direct services for children eligible for services under 
section 619 of the Act;
    (c) For activities at the State and local levels to meet the 
performance goals established by the State under section 612(a)(15) of 
the Act;
    (d) To supplement other funds used to develop and implement a 
statewide coordinated services system designed

[[Page 116]]

to improve results for children and families, including children with 
disabilities and their families, but not more than one percent of the 
amount received by the State under section 619 of the Act for a fiscal 
year;
    (e) To provide early intervention services (which must include an 
educational component that promotes school readiness and incorporates 
preliteracy, language, and numeracy skills) in accordance with Part C of 
the Act to children with disabilities who are eligible for services 
under section 619 of the Act and who previously received services under 
Part C of the Act until such children enter, or are eligible under State 
law to enter, kindergarten; or
    (f) At the State's discretion, to continue service coordination or 
case management for families who receive services under Part C of the 
Act, consistent with Sec. 300.814(e).

(Authority: 20 U.S.C. 1419(f))



Sec. 300.815  Subgrants to LEAs.

    Each State that receives a grant under section 619 of the Act for 
any fiscal year must distribute all of the grant funds the State does 
not reserve under Sec. 300.812 to LEAs (including public charter 
schools that operate as LEAs) in the State that have established their 
eligibility under section 613 of the Act. Effective with funds that 
become available on July 1, 2009, each State must distribute funds to 
eligible LEAs that are responsible for providing education to children 
aged three through five years, including public charter schools that 
operate as LEAs, even if the LEA is not serving any preschool children 
with disabilities.

(Authority: 20 U.S.C. 1419(g)(1))

[73 FR 73028, Dec. 1, 2008]



Sec. 300.816  Allocations to LEAs.

    (a) Base payments. The State must first award each LEA described in 
Sec. 300.815 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 such 
section was then in effect.
    (b) Base payment adjustments. For fiscal year 1998 and beyond--
    (1) If a new LEA is created, the State must 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 three 
through five currently provided special education by each of the LEAs;
    (2) If one or more LEAs are combined into a single new LEA, the 
State must combine the base allocations of the merged LEAs;
    (3) If for two or more LEAs, geographic boundaries or administrative 
responsibility for providing services to children with disabilities ages 
three through five changes, the base allocations of affected LEAs must 
be redistributed among affected LEAs based on the relative numbers of 
children with disabilities ages three through five currently provided 
special education by each affected LEA; and
    (4) If an LEA received a base payment of zero in its first year of 
operation, the SEA must adjust the base payment for the first fiscal 
year after the first annual child count in which the LEA reports that it 
is serving any children with disabilities aged three through five years. 
The State must divide the base allocation determined under paragraph (a) 
of this section for the LEAs that would have been responsible for 
serving children with disabilities aged three through five years now 
being served by the LEA, among the LEA and affected LEAs based on the 
relative numbers of children with disabilities aged three through five 
years currently provided special education by each of the LEAs. This 
requirement takes effect with funds that become available on July 1, 
2009.
    (c) Allocation of remaining funds. After making allocations under 
paragraph (a) of this section, the State must--
    (1) Allocate 85 percent of any remaining funds to those LEAs on the 
basis of the relative numbers of children enrolled in public and private 
elementary schools and secondary schools within the LEA's jurisdiction; 
and
    (2) Allocate 15 percent of those remaining funds to those LEAs in 
accordance with their relative numbers of

[[Page 117]]

children living in poverty, as determined by the SEA.
    (d) Use of best data. 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))

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73028, Dec. 1, 2008]



Sec. 300.817  Reallocation of LEA funds.

    (a) If an SEA determines that an LEA is adequately providing FAPE to 
all children with disabilities aged three through five years residing in 
the area served by the LEA 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 LEA to provide FAPE, to other LEAs in the State 
that are not adequately providing special education and related services 
to all children with disabilities aged three through five years residing 
in the areas served by those other LEAs. The SEA may also retain those 
funds for use at the State level to the extent the State has not 
reserved the maximum amount of funds it is permitted to reserve for 
State-level activities pursuant to Sec. 300.812.
    (b) After an SEA distributes section 619 funds to an eligible LEA 
that is not serving any children with disabilities aged three through 
five years, as provided in Sec. 300.815, the SEA must determine, within 
a reasonable period of time prior to the end of the carryover period in 
34 CFR 76.709, whether the LEA has obligated the funds. The SEA may 
reallocate any of those funds not obligated by the LEA to other LEAs in 
the State that are not adequately providing special education and 
related services to all children with disabilities aged three through 
five years residing in the areas served by those other LEAs. The SEA may 
also retain those funds for use at the State level to the extent the 
State has not reserved the maximum amount of funds it is permitted to 
reserve for State-level activities pursuant to Sec. 300.812.

(Authority: 20 U.S.C. 1419(g)(2))

[73 FR 73028, Dec. 1, 2008]



Sec. 300.818  Part C of the Act inapplicable.

    Part C of the Act does not apply to any child with a disability 
receiving FAPE, in accordance with Part B of the Act, with funds 
received under section 619 of the Act.

(Authority: 20 U.S.C. 1419(h))



          Sec. Appendix A to Part 300--Excess Costs Calculation

    Except as otherwise provided, 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. 
Excess costs are those costs for the education of an elementary school 
or secondary school student with a disability that are in excess of the 
average annual per student expenditure in an LEA during the preceding 
school year for an elementary school or secondary school student, as may 
be appropriate. An LEA must spend at least the average annual per 
student expenditure on the education of an elementary school or 
secondary school child with a disability before funds under Part B of 
the Act are used to pay the excess costs of providing special education 
and related services.
    Section 602(8) of the Act and Sec. 300.16 require the LEA to 
compute the minimum average amount separately for children with 
disabilities in its elementary schools and for children with 
disabilities in its secondary schools. LEAs may not compute the minimum 
average amount it must spend on the education of children with 
disabilities based on a combination of the enrollments in its elementary 
schools and secondary schools.
    The following example shows how to compute the minimum average 
amount an LEA must spend for `the education of each of its elementary 
school children with disabilities under section 602(3) of the Act before 
it may use funds under Part B of the Act.
    a. First the LEA must determine the total amount of its expenditures 
for elementary school students from all sources--local, State, and 
Federal (including Part B)--in the preceding school year. Only capital 
outlay and debt services are excluded.

    Example: The following is an example of a computation for children 
with disabilities enrolled in an LEA's elementary schools. In this 
example, the LEA had an average elementary school enrollment for the 
preceding school year of 800 (including 100 children

[[Page 118]]

with disabilities). The LEA spent the following amounts last year for 
elementary school students (including its elementary school children 
with disabilities):

 
 
 
(1)....................  From State and local tax funds.      $6,500,000
(2)....................  From Federal funds.............         600,000
                                                         ---------------
                          Total expenditures............       7,100,000
 

    Of this total, $60,000 was for capital outlay and debt service 
relating to the education of elementary school students. This must be 
subtracted from total expenditures.

 
 
 
(1)....................  Total Expenditures.............      $7,100,000
(2)....................  Less capital outlay and debt...         -60,000
                                                         ===============
                          Total expenditures for              $7,040,000
                          elementary school students
                          less capital outlay and debt.
 

    b. Next, the LEA must subtract from the total expenditures amounts 
spent for:
    (1) IDEA, Part B allocation,
    (2) ESEA, Title I, Part A allocation,
    (3) ESEA, Title III, Parts A and B allocation,
    (4) State and local funds for children with disabilities, and
    (5) State or local funds for programs under ESEA, Title I, Part A, 
and Title III, Parts A and B.
    These are funds that the LEA actually spent, not funds received last 
year but carried over for the current school year.

    Example: The LEA spent the following amounts for elementary school 
students last year:

 
 
 
(1)....................  From funds under IDEA, Part B         $ 200,000
                          allocation.
(2)....................  From funds under ESEA, Title I,         250,000
                          Part A allocation.
(3)....................  From funds under ESEA, Title             50,000
                          III, Parts A and B allocation.
(4)....................  From State funds and local              500,000
                          funds for children with
                          disabilities.
(5)....................  From State and local funds for          150,000
                          programs under ESEA, Title I,
                          Part A, and Title III, Parts A
                          and B.
                                                         ---------------
                          Total.........................       1,150,000
                                                         ---------------
(1)....................   Total expenditures less              7,040,000
                          capital outlay and debt.
(2)....................  Other deductions...............      -1,150,000
                                                         ===============
                          Total.........................      $5,890,000
 

    c. Except as otherwise provided, the LEA next must determine the 
average annual per student expenditure for its elementary schools 
dividing the average number of students enrolled in the elementary 
schools of the agency during the preceding year (including its children 
with disabilities) into the amount computed under the above paragraph. 
The amount obtained through this computation is the minimum amount the 
LEA must spend (on the average) for the education of each of its 
elementary school children with disabilities. Funds under Part B of the 
Act may be used only for costs over and above this minimum.

 
 
 
(1)....................  Amount from Step b.............      $5,890,000
(2)....................  Average number of students                  800
                          enrolled.
(3)....................  $5,890,000/800 Average annual           $ 7,362
                          per student expenditure.
 

    d. Except as otherwise provided, to determine the total minimum 
amount of funds the LEA must spend for the education of its elementary 
school children with disabilities in the LEA (not including capital 
outlay and debt service), the LEA must multiply the number of elementary 
school children with disabilities in the LEA times the average annual 
per student expenditure obtained in paragraph c above. Funds under Part 
B of the Act can only be used for excess costs over and above this 
minimum.

 
 
 
(1)....................  Number of children with                     100
                          disabilities in the LEA's
                          elementary schools.
(2)....................  Average annual per student              $ 7,362
                          expenditure.
(3)....................  $7,362 x 100...................
                          Total minimum amount of funds        $ 736,200
                          the LEA must spend for the
                          education of children with
                          disabilities enrolled in the
                          LEA's elementary schools
                          before using Part B funds.
 



      Sec. Appendix B to Part 300--Proportionate Share Calculation

    Each LEA must expend, during the grant period, on the provision of 
special education and related services for the parentally-placed private 
school children with disabilities enrolled in private elementary schools 
and secondary schools located in the LEA an amount that is equal to--

[[Page 119]]

    (1) A proportionate share of the LEA's subgrant under section 611(f) 
of the Act for children with disabilities aged 3 through 21. This is an 
amount that is the same proportion of the LEA's total subgrant under 
section 611(f) of the Act as the number of parentally-placed private 
school children with disabilities aged 3 through 21 enrolled in private 
elementary schools and secondary schools located in the LEA is to the 
total number of children with disabilities enrolled in public and 
private elementary schools and secondary schools located in the LEA aged 
3 through 21; and
    (2) A proportionate share of the LEA's subgrant under section 619(g) 
of the Act for children with disabilities aged 3 through 5. This is an 
amount that is the same proportion of the LEA's total subgrant under 
section 619(g) of the Act as the total number of parentally-placed 
private school children with disabilities aged 3 through 5 enrolled in 
private elementary schools located in the LEA is to the total number of 
children with disabilities enrolled in public and private elementary 
schools located in the LEA aged 3 through 5.
    Consistent with section 612(a)(10)(A)(i) of the Act and Sec. 
300.133 of these regulations, annual expenditures for parentally-placed 
private school children with disabilities are calculated based on the 
total number of children with disabilities enrolled in public and 
private elementary schools and secondary schools located in the LEA 
eligible to receive special education and related services under Part B, 
as compared with the total number of eligible parentally-placed private 
school children with disabilities enrolled in private elementary schools 
located in the LEA. This ratio is used to determine the proportion of 
the LEA's total Part B subgrants under section 611(f) of the Act for 
children aged 3 through 21, and under section 619(g) of the Act for 
children aged 3 through 5, that is to be expended on services for 
parentally-placed private school children with disabilities enrolled in 
private elementary schools and secondary schools located in the LEA.
    The following is an example of how the proportionate share is 
calculated:
    There are 300 eligible children with disabilities enrolled in the 
Flintstone School District and 20 eligible parentally-placed private 
school children with disabilities enrolled in private elementary schools 
and secondary schools located in the LEA for a total of 320 eligible 
public and private school children with disabilities (note: 
proportionate share for parentally-placed private school children is 
based on total children eligible, not children served). The number of 
eligible parentally-placed private school children with disabilities 
(20) divided by the total number of eligible public and private school 
children with disabilities (320) indicates that 6.25 percent of the 
LEA's subgrant must be spent for the group of eligible parentally-placed 
children with disabilities enrolled in private elementary schools and 
secondary schools located in the LEA. Flintstone School District 
receives $152,500 in Federal flow through funds. Therefore, the LEA must 
spend $9,531.25 on special education or related services to the group of 
parentally-placed private school children with disabilities enrolled in 
private elementary schools and secondary schools located in the LEA. 
(Note: The LEA must calculate the proportionate share of IDEA funds 
before earmarking funds for any early intervening activities in Sec. 
300.226).
    The following outlines the calculations for the example of how the 
proportionate share is calculated.

 
 
 
Proportionate Share Calculation for Parentally-Placed Private
 School Children with Disabilities For Flintstone School
 District:
Number of eligible children with disabilities in public              300
 schools in the LEA..........................................
Number of parentally-placed eligible children with                    20
 disabilities in private elementary schools and secondary
 schools located in the LEA..................................
                                                              ----------
    Total number of eligible children........................        320
 
   Federal Flow-Through Funds to Flintstone School District
 
    Total allocation to Flintstone...........................   $152,500
Calculating Proportionate Share:
Total allocation to Flinstone................................    152,500
Divided by total number of eligible children.................        320
Average allocation per eligible child........................   476.5625
Multiplied by the number of parentally-placed children with           20
 disabilities................................................
Amount to be expended for parentally-placed children with       9,531.25
 disabilities................................................
 



     Sec. Appendix C to Part 300--National Instructional Materials 
                     Accessibility Standard (NIMAS)

    Under sections 612(a)(23)(A) and 674(e)(4) of the Individuals with 
Disabilities Education Act, as amended by the Individuals with 
Disabilities Education Improvement Act of 2004, the Secretary of 
Education establishes the

[[Page 120]]

NIMAS. Under section 674(e)(4) of the Act, the NIMAS applies to print 
instructional materials published after July 19, 2006. The purpose of 
the NIMAS is to help increase the availability and timely delivery of 
print instructional materials in accessible formats to blind or other 
persons with print disabilities in elementary and secondary schools.

           Technical Specifications--The Baseline Element Set

    The Baseline Element Set details the minimum requirement that must 
be delivered to fulfill the NIMAS. It is the responsibility of 
publishers to provide this NIMAS-conformant XML content file, a package 
file (OPF), a PDF-format copy of the title page (or whichever page(s) 
contain(s) ISBN and copyright information), and a full set of the 
content's images. All of the images included within a work must be 
provided in a folder and placeholders entered in the relevant XML 
document indicating their location (all images must be included). The 
preferred image type is SVG, next is either PNG or JPG format. Images 
should be rendered in the same size/proportion as their originals at 300 
dpi. Images should be named with relative path filenames in XML files 
(example: img id=``staricon4'' src=``./images/U10C02/staricon4.jpg'' 
alt=``star icon'').
    NIMAS-conformant content must be valid to the NIMAS 1.1 [see ANSI/
NISO Z39.86 2005 or subsequent revisions]. In addition, files are 
required to use the tags from the Baseline Element Set when such tags 
are appropriate. Publishers are encouraged to augment the required 
Baseline Element Set with tags from the Optional Element Set (elements 
not included in the Standard) as applicable. For the purposes of NIMAS, 
appropriate usage of elements, both baseline and optional, is defined by 
the DAISY Structure Guidelines. Files that do not follow these 
guidelines in the selection and application of tags are not conformant 
to this Standard. Both optional elements and appropriate structure 
guidelines may be located within Z39.86-2002 and Z39.86-2005 available 
from http://www.daisy.org/z3986/. Use of the most current standard is 
recommended.

                        The Baseline Element Set
------------------------------------------------------------------------
              Element                            Description
------------------------------------------------------------------------
                         a. Document-level tags
------------------------------------------------------------------------
dtbook............................  The root element in the Digital
                                     Talking Book DTD.  contains metadata in  and the contents itself in
                                     .
head..............................  Contains metainformation about the
                                     book but no actual content of the
                                     book itself, which is placed in
                                     .
book..............................  Surrounds the actual content of the
                                     document, which is divided into
                                     ,
                                     , and
                                     . , which contains metadata,
                                     precedes .
meta..............................  Indicates metadata about the book.
                                     It is an empty element that may
                                     appear repeatedly only in .
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                       b. Structure and Hierarchy
------------------------------------------------------------------------
frontmatter.......................  Usually contains  and , as
                                     well as preliminary material that
                                     is often enclosed in appropriate
                                      or  etc. Content may include a
                                     copyright notice, a foreword, an
                                     acknowledgements section, a table
                                     of contents, etc.  serves as a guide to the
                                     content and nature of a .
bodymatter........................  Consists of the text proper of a
                                     book, as contrasted with
                                     preliminary material
                                      or
                                     supplementary information in
                                     .
rearmatter........................  Contains supplementary material such
                                     as appendices, glossaries,
                                     bibliographies, and indices. It
                                     follows the 
                                     of the book.
level1............................  The highest-level container of major
                                     divisions of a book. Used in
                                     ,
                                     , and
                                      to mark the
                                     largest divisions of the book
                                     (usually parts or chapters), inside
                                     which 
                                     subdivisions (often sections) may
                                     nest. The class attribute
                                     identifies the actual name (e.g.,
                                     part, chapter) of the structure it
                                     marks. Contrast with .
level2............................  Contains subdivisions that nest
                                     within 
                                     divisions. The class attribute
                                     identifies the actual name (e.g.,
                                     subpart, chapter, subsection) of
                                     the structure it marks.
level3............................  Contains sub-subdivisions that nest
                                     within 
                                     subdivisions (e.g., sub-subsections
                                     within subsections). The class
                                     attribute identifies the actual
                                     name (e.g., section, subpart,
                                     subsubsection) of the subordinate
                                     structure it marks.
level4............................  Contains further subdivisions that
                                     nest within 
                                     subdivisions. The class attribute
                                     identifies the actual name of the
                                     subordinate structure it marks.
level5............................  Contains further subdivisions that
                                     nest within 
                                     subdivisions. The class attribute
                                     identifies the actual name of the
                                     subordinate structure it marks.
level6............................  Contains further subdivisions that
                                     nest within 
                                     subdivisions. The class attribute
                                     identifies the actual name of the
                                     subordinate structure it marks.
h1................................  Contains the text of the heading for
                                     a  structure.
h2................................  Contains the text of the heading for
                                     a  structure.
h3................................  Contains the text of the heading for
                                     a  structure.
h4................................  Contains the text of the heading for
                                     a  structure.

[[Page 121]]

 
h5................................  Contains the text of the heading for
                                     a  structure.
h6................................  Contains the text of the heading for
                                     a  structure.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                            c. Block elements
------------------------------------------------------------------------
author............................  Identifies the writer of a work
                                     other than this one. Contrast with
                                     , which
                                     identifies the author of this work.
                                      typically occurs
                                     within  and
                                     .
blockquote........................  Indicates a block of quoted content
                                     that is set off from the
                                     surrounding text by paragraph
                                     breaks. Compare with ,
                                     which marks short, inline
                                     quotations.
list..............................  Contains some form of list, ordered
                                     or unordered. The list may have an
                                     intermixed heading 
                                     (generally only one, possibly with
                                     ), and an
                                     intermixture of list items  and . If
                                     bullets and outline enumerations
                                     are part of the print content, they
                                     are expected to prefix those list
                                     items in content, rather than be
                                     implicitly generated.
li................................  Marks each list item in a .  content may
                                     be either inline or block and may
                                     include other nested lists.
                                     Alternatively it may contain a
                                     sequence of list item components,
                                     , that identify
                                     regularly occurring content, such
                                     as the heading and page number of
                                     each entry in a table of contents.
hd................................  Marks the text of a heading in a
                                      or .
note..............................  Marks a footnote, endnote, etc. Any
                                     local reference to  is by
                                     yyy''''. [Attribute
                                     id]
p.................................  Contains a paragraph, which may
                                     contain subsidiary 
                                     or .
sidebar...........................  Contains information supplementary
                                     to the main text and/or narrative
                                     flow and is often boxed and printed
                                     apart from the main text block on a
                                     page. It may have a heading .
cite..............................  Marks a reference (or citation) to
                                     another document.
dd................................  Marks a definition of the preceding
                                     term  within a
                                     definition list . A
                                     definition without a preceding
                                      has no semantic
                                     interpretation, but is visually
                                     presented aligned with other .
dl................................  Contains a definition list, usually
                                     consisting of pairs of terms  and definitions . Any definition can contain
                                     another definition list.
dt................................  Marks a term in a definition list
                                      for which a
                                     definition  follows.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                           d. Inline Elements
------------------------------------------------------------------------
em................................  Indicates emphasis. Usually  is rendered in italics.
                                     Compare with .
q.................................  Contains a short, inline quotation.
                                     Compare with , which marks a longer quotation
                                     set off from the surrounding text.
strong............................  Marks stronger emphasis than . Visually  is usually rendered bold.
sub...............................  Indicates a subscript character
                                     (printed below a character's normal
                                     baseline). Can be used recursively
                                     and/or intermixed with .
sup...............................  Marks a superscript character
                                     (printed above a character's normal
                                     baseline). Can be used recursively
                                     and/or intermixed with .
br................................  Marks a forced line break.
line..............................  Marks a single logical line of text.
                                     Often used in conjunction with
                                      in documents
                                     with numbered lines. [Use only when
                                     line breaks must be preserved to
                                     capture meaning (e.g., poems, legal
                                     texts).]
linenum...........................  Contains a line number, for example
                                     in legal text. [Use only when
                                      is used, and only
                                     for lines numbered in print book.]
pagenum...........................  Contains one page number as it
                                     appears from the print document,
                                     usually inserted at the point
                                     within the file immediately
                                     preceding the first item of content
                                     on a new page. [NB: Only valid when
                                     it includes an id attribute].
noteref...........................  Marks one or more characters that
                                     reference a footnote or endnote
                                     . Contrast with
                                     .  and  are
                                     independently skippable.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------
                                e. Tables
------------------------------------------------------------------------
table.............................  Contains cells of tabular data
                                     arranged in rows and columns. A
                                      may have a
                                     . It may have
                                     descriptions of the columns in
                                     s or groupings of
                                     several  in
                                     . A simple
                                      may be made up of
                                     just rows . A long
                                     table crossing several pages of the
                                     print book should have separate
                                      values for each
                                     of the pages containing that
                                      indicated on the
                                     page where it starts. Note the
                                     logical order of optional , optional , then one or more of either
                                      or just rows
                                     . This order
                                     accommodates simple or large,
                                     complex tables. The  and 
                                     information usually helps identify
                                     content of the 
                                     rows. For a multiple-page print
                                      the  and  are
                                     repeated on each page, but not
                                     redundantly tagged.
td................................  Indicates a table cell containing
                                     data.
tr................................  Marks one row of a 
                                     containing  or  cells.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------

[[Page 122]]

 
                                f. Images
------------------------------------------------------------------------
imggroup..........................  Provides a container for one or more
                                      and associated
                                     (s) and
                                     (s). A
                                      may contain a
                                     description of the image. The
                                     content model allows: 1) multiple
                                      if they share a
                                     caption, with the ids of each
                                      in the ,
                                     2) multiple  if
                                     several captions refer to a single
                                      where
                                     each caption has the same , 3)
                                     multiple  if
                                     different versions are needed for
                                     different media (e.g., large print,
                                     braille, or print). If several
                                      refer to a
                                     single ,
                                     each prodnote has the same
                                     .
img...............................  Points to the image to be rendered.
                                     An  may stand alone
                                     or be grouped using . Note that providing
                                     extracted images is not a
                                     requirement of the NIMAS. If they
                                     are included, it is best to refer
                                     to them using 
                                     within the 
                                     container.
caption...........................  Describes a  or
                                     . If used with
                                      it must follow
                                     immediately after the  start tag. If used with
                                      it is not so
                                     constrained.
                                    For the most current usage
                                     guidelines, please refer to http://
                                     www.daisy.org/z3986/
------------------------------------------------------------------------

             1. The Optional Elements and Guidelines for Use

    Publishers are encouraged to apply markup beyond the baseline 
(required) elements. The complete DTBook Element Set reflects the tags 
necessary to create the six types of Digital Talking Books and Braille 
output. Because of the present necessity to subdivide the creation of 
alternate format materials into distinct phases, the Panel determined 
that baseline elements would be provided by publishers, and optional 
elements would be added to the NIMAS-conformant files by third party 
conversion entities. In both circumstances the protocols for tagging 
digital files should conform to the most current ANSI/NISO Z39.86 
specification. Content converters are directed to the most current DAISY 
Structure Guidelines (http://www.daisy.org/z3986/) for guidance on their 
use.
    Since the publication of the original National File Format report 
from which the NIMAS technical specifications were derived, ANSI/NISO 
Z39.86-2002 was updated and is now ANSI/NISO Z39.86-2005. It may be best 
to avoid using the following optional elements which are no longer 
included in ANSI/NISO Z39.86-2005: style, notice, hr, and levelhd.
    Also, the following new elements were introduced by ANSI/NISO 
Z39.86-2005 and should be considered optional elements for the NIMAS: 
bridgehead, byline, covertitle, dateline, epigraph, linegroup, and poem. 
Please refer to ANSI/NISO Z39.86-2005 for additional information 
regarding these elements. To access the ANSI/NISO Z39.86-2005 
specification, go to http://www.daisy.org/z3986/.

                             2. Package File

    A package file describes a publication. It identifies all other 
files in the publication and provides descriptive and access information 
about them. A publication must include a package file conforming to the 
NIMAS. The package file is based on the Open eBook Publication Structure 
1.2 package file specification (For most recent detail please see http:/
/www.openebook.org/oebps/oebps1.2/download/oeb12-xhtml.htm#sec2). A 
NIMAS package file must be an XML-valid OeB PS 1.2 package file instance 
and must meet the following additional standards:
    The NIMAS Package File must include the following Dublin Core 
(dc:)metadata:
dc:Title.
dc:Creator (if applicable).
dc:Publisher.
dc:Date (Date of NIMAS-compliant file creation--yyyy-mm-dd).
dc:Format (=``NIMAS 1.0'').
dc:Identifier (a unique identifier for the NIMAS-compliant digital 
publication, e.g., print ISBN + ``-NIMAS''--exact format to be 
determined).
dc:Language (one instance, or multiple in the case of a foreign language 
textbook, etc.).
dc:Rights (details to be determined).
dc:Source (ISBN of print version of textbook).

    And the following x-metadata items:
nimas-SourceEdition (the edition of the print textbook).
nimas-SourceDate (date of publication of the print textbook).

    The following metadata were proposed also as a means of facilitating 
recordkeeping, storage and file retrieval:
dc:Subject (Lang Arts, Soc Studies, etc.).
nimas-grade (specific grade level of the print textbook, e.g.; Grade 6).
nimas gradeRange (specific grade range of the print textbook, e.g.; 
Grades 4-5).

    An additional suggestion references the use of:

dc:audience:educationLevel (for the grade and gradeRange identifiers, 
noting that Dublin Core recommends using

[[Page 123]]

educationLevel with an appropriate controlled vocabulary for context, 
and recommends the U.S. Department of Education's Level of Education 
vocabulary online at http://www.ed.gov/admin/reference/index.jsp. Using 
educationLevel obviates the need for a separate field for gradeRange 
since dc elements can repeat more than once. A book used in more than 
one grade would therefore have two elements, one with value ``Grade 4'' 
and another with value ``Grade 5.''

    A final determination as to which of these specific metadata 
elements to use needs to be clarified in practice. The package manifest 
must list all provided files (text, images, etc.).
(Note: For purposes of continuity and to minimize errors in 
transformation and processing, the NIMAS-compliant digital text should 
be provided as a single document.)

                          3. Modular Extensions

    The most current DAISY/NISO standard, formally the ANSI/NISO Z39.86, 
Specifications for the Digital Talking Book defines a comprehensive 
system for creating Digital Talking Books. A part of this standard is 
DTBook, an XML vocabulary that provides a core set of elements needed to 
produce most types of books. However, DTBook is not intended to be an 
exhaustive vocabulary for all types of books.
    Guidelines for the correct approach to extend the DAISY/NISO 
standard have been established. Mathematics, video support, testing, 
workbooks, music, dictionaries, chemistry, and searching are some of the 
extensions that have been discussed. Visit http://www.daisy.org/z3986/ 
to learn more about modular extensions.

                                   End



Sec. Appendix D to Part 300--Maintenance of Effort and Early Intervening 
                                Services

    LEAs that seek to reduce their local maintenance of effort in 
accordance with Sec. 300.205(d) and use some of their Part B funds for 
early intervening services under Sec. 300.226 must do so with caution 
because the local maintenance of effort reduction provision and the 
authority to use Part B funds for early intervening services are 
interconnected. The decisions that an LEA makes about the amount of 
funds that it uses for one purpose affect the amount that it may use for 
the other. Below are examples that illustrate how Sec. Sec. 300.205(d) 
and 300.226(a) affect one another.
    Example 1: In this example, the amount that is 15 percent of the 
LEA's total grant (see Sec. 300.226(a)), which is the maximum amount 
that the LEA may use for early intervening services (EIS), is greater 
than the amount that may be used for local maintenance of effort (MOE) 
reduction (50 percent of the increase in the LEA's grant from the prior 
year's grant) (see Sec. 300.205(a)).

 
 
 
Prior Year's Allocation.................................       $900,000.
Current Year's Allocation...............................      1,000,000.
Increase................................................        100,000.
Maximum Available for MOE Reduction.....................         50,000.
Maximum Available for EIS...............................        150,000.
 

    If the LEA chooses to set aside $150,000 for EIS, it may not reduce 
its MOE (MOE maximum $50,000 less $150,000 for EIS means $0 can be used 
for MOE).
    If the LEA chooses to set aside $100,000 for EIS, it may not reduce 
its MOE (MOE maximum $50,000 less $100,000 for EIS means $0 can be used 
for MOE).
    If the LEA chooses to set aside $50,000 for EIS, it may not reduce 
its MOE (MOE maximum $50,000 less $50,000 for EIS means $0 can be used 
for MOE).
    If the LEA chooses to set aside $30,000 for EIS, it may reduce its 
MOE by $20,000 (MOE maximum $50,000 less $30,000 for EIS means $20,000 
can be used for MOE).
    If the LEA chooses to set aside $0 for EIS, it may reduce its MOE by 
$50,000 (MOE maximum $50,000 less $0 for EIS means $50,000 can be used 
for MOE).
    Example 2: In this example, the amount that is 15 percent of the 
LEA's total grant (see Sec. 300.226(a)), which is the maximum amount 
that the LEA may use for EIS, is less than the amount that may be used 
for MOE reduction (50 percent of the increase in the LEA's grant from 
the prior year's grant) (see Sec. 300.205(a)).

 
 
 
Prior Year's Allocation.................................     $1,000,000.
Current Year's Allocation...............................      2,000,000.
Increase................................................      1,000,000.
Maximum Available for MOE Reduction.....................        500,000.
Maximum Available for EIS...............................        300,000.
 

    If the LEA chooses to use no funds for MOE, it may set aside 
$300,000 for EIS (EIS maximum $300,000 less $0 means $300,000 for EIS).
    If the LEA chooses to use $100,000 for MOE, it may set aside 
$200,000 for EIS (EIS maximum $300,000 less $100,000 means $200,000 for 
EIS).
    If the LEA chooses to use $150,000 for MOE, it may set aside 
$150,000 for EIS (EIS maximum $300,000 less $150,000 means $150,000 for 
EIS).
    If the LEA chooses to use $300,000 for MOE, it may not set aside 
anything for EIS (EIS maximum $300,000 less $300,000 means $0 for EIS).
    If the LEA chooses to use $500,000 for MOE, it may not set aside 
anything for EIS (EIS maximum $300,000 less $500,000 means $0 for EIS).

[[Page 124]]

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

ACCESS TO
 Access rights (Parents).................  300.613.
 Assistive technology devices in child's   300.105(b).
 home.
 Disciplinary records....................  300.229.
 Education records (Procedural safeguards  300.504(c)(4).
 notice).
 General curriculum (Ensure access to)...  300.39(b)(3)(ii).
 Instructional materials (see Sec. Sec.
  300.172, 300.210).
 List of employees who may have access to  300.623(d).
 records.
 Parent's private insurance proceeds.....  300.154(e).
 Record of access (Confidentiality)......  300.614.
 
ACCESSIBILITY STANDARDS (Regarding construction)
 Americans with Disabilities               300.718(b)(1).
 Accessibility Standards for Buildings and Facilities.
 Uniform Federal Accessibility Standards.  300.718(b)(2).
 
ACCOMMODATIONS
 In assessments..........................  300.320(a)(6)(i).
 State level activities in support of....  300.704(b)(4)(x).
 
ACT (Definition)...........................................  300.4.
 
ADD AND ADHD (See ``Attention deficit disorder'' and
 ``Attention deficit hyperactivity disorder'')
 
ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENT...........  300.512(b).
 
ADULT CORRECTIONAL FACILITIES (See ``Correctional
 facilities'')
 
ADULT PRISONS (Children with disabilities in)
 Divided State agency responsibility.....  300.607.
 FAPE requirements:
    [Omicron] Exception to FAPE............................  300.102(a)(2).
    [Omicron] Modifications of IEP or placement............  300.324(d)(2).
    [Omicron] Requirements that do not apply...............  300.324(d)(1).
 Governor................................  300.149(d).
 Other public agency responsibility......  300.149(d).
 
ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ``Child with
 a disability,'' Sec. 300.8(c)(1)(i), (c)(3), (c)(4)(i),
 (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12))
 
ADVISORY BOARD
(Secretary of the Interior)................................  300.714.
 
ADVISORY PANEL (See ``State advisory panel'')
AGE-APPROPRIATE CLASSROOM..................................  300.116(e).
 
ALLOCATION(S)
 By-pass for private school children (see
 Sec. 300.191(d)).
 To LEAs (see Sec. Sec. 300.705(b),
 300.816)
 To Outlying areas.......................  300.701(a).
 To Secretary of the Interior............  300.707.
 To States (see Sec. Sec. 300.703,
 300.807 through 300.810).
 
ALLOWABLE COSTS
(By SEA for State administration)..........................  300.704(a).
 
ALTERATION OF FACILITIES...................................  300.718(b).
 
ALTERNATE ASSESSMENTS
 Aligned with alternate academic           300.320(a)(2)(ii).
 achievement standards.

[[Page 125]]

 
 Development and provision of in           300.704(b)(4)(x).
 accordance with ESEA.
 Participation determined by IEP Team....  300.320(a)(6)(ii).
 
ALTERNATIVE PLACEMENTS (Continuum).........................  300.115.
 
ALTERNATIVE STRATEGIES to meet transition objectives.......  300.324(c)(1).
 
AMENDMENTS
 To LEA policies and procedures..........  300.220(b).
 To State policies and procedures:
    [Omicron] Made by State................................  300.176(b).
    [Omicron] Required by the Secretary....................  300.176(c).
 
ANNUAL GOALS (IEPs)
 FAPE for children suspended or expelled
 (see Sec. Sec. 300.101(a), 300.530(d))
 IEP content:
    [Omicron] How progress will be measured................  300.320(a)(3).
    [Omicron] Special education and related services.......  300.320(a)(4).
    [Omicron] Statement of measurable annual goals.........  300.320(a)(2)(i).
 Review and revision of IEP..............  300.324(b)(1).
 Review of existing evaluation data......  300.305(a).
 
ANNUAL REPORT
Of children served (see Sec. Sec. 300.640 through
 300.646)
On education of Indian children............................  300.715.
 
APPENDICES TO PART 300 (A through E)
Excess Costs Calculation (see Appendix A)
Proportionate Share Calculation (see Appendix B)
National Instructional Materials Accessibility Standard
 (NIMAS) (see Appendix C)
Maintenance of Effort and Early Intervening Services (see
 Appendix D)
Index for IDEA--Part B Regulations (This Appendix E)
APPLICABILITY OF THIS PART to State, local, and private      300.2.
 agencies.
 
APPLICATION
 Initial admission to public school......  300.518(b).
 Initial services........................  300.518(c).
 
ASSESSMENT(S)
 For specific learning disability (see
 Sec. 300.309(a)(2)(ii), (b)(2))
 Functional behavioral assessment (see
 Sec. 300.530(d)(1)(ii), (f)(1)(i))
 In evaluation (see Sec. Sec.
 300.304(b), (c), 300.305(a)(1)(ii), (c), (d))
 Of leisure function (in ``Recreation'').  300.34(c)(11)(i).
 
ASSESSMENTS--STATE and DISTRICT-WIDE
Alternate assessments (see Sec. 300.320 (a)(2)(ii),
 (a)(6)(ii))
Performance indicators.....................................  300.157.
 
ASSISTANCE UNDER OTHER FEDERAL PROGRAMS....................  300.186.
 
ASSISTIVE TECHNOLOGY (AT)
 AT devices..............................  300.5.
 AT services.............................  300.6.
 Consideration of special factors........  300.324(a)(2)(v).
 Hearing aids............................  300.113.
 Requirement:
    [Omicron] Ensure availability of.......................  300.105(a).
    [Omicron] Use of AT in child's home....................  300.105(b).

[[Page 126]]

 
 Surgically implanted medical devices
 (see Sec. Sec. 300.5, 300.34(b), 300.113(b))
 
ASTHMA.....................................................  300.8(c)(9).
 
ATTENTION DEFICIT DISORDER (ADD)...........................  300.8(c)(9).
 
ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD)............  300.8(c)(9).
 
ATTORNEYS' FEES............................................  300.517.
 Award of fees...........................  300.517(c).
 Prohibition on use of funds for.........  300.517(b).
 When court reduces fee awards...........  300.517(c)(4).
 
AUDIOLOGY..................................................  300.34(c)(1).
 
AUTHORITY (A-O)
 Of guardian.............................  300.30(a)(3).
 Of hearing officer (Discipline).........  300.532(b).
 Of school personnel (Discipline)........  300.530.
 Of Secretary to monitor and enforce.....  300.609.
 
AUTHORITY (P-Z)
 Parental authority to inspect and review  300.613.
 records.
 State complaint procedures..............  300.151(b).
 Waiver request (Signed by person with     300.164(c)(1).
 authority).
 
AUTISM.....................................................  300.8(c)(1).
 
AVERAGE PER-PUPIL EXPENDITURE
(Definition)...............................................  300.717(d).
 
BASE PAYMENTS (to LEAs) (See Sec. 300.705(b)(1), (b)(2))
 
BASIS OF KNOWLEDGE: Protection for children not yet          300.534(b).
 eligible.
 
BEHAVIORAL ASSESSMENT (See ``Functional behavioral
 assessment'')
 
BEHAVIORAL INTERVENTION(S).................................  300.530(f).
 Assist in developing....................  300.34(c)(10)(vi).
 Behavioral intervention plan............  300.530(f).
 Consideration of by IEP Team............  300.324(a)(2)(i).
 Not a manifestation of disability.......  300.530(d).
 Regular education teacher (Determination  300.324(a)(3).
 of).
 Suspension and expulsion rates..........  300.170(b).
 
BENCHMARKS OR SHORT TERM OBJECTIVES........................  300.320(a)(2)(ii).
 
BENEFITS TO NONDISABLED (Permissive use of funds)..........  300.208(a)(1).
 
BIA (See ``Bureau of Indian Affairs'')
 
BLIND(NESS): Under ``Visual impairment''
 Access to instructional materials (see
 Sec. Sec. 300.172, 300.210(b)(3))
 Consideration of special factors by IEP   300.324(a)(2).
 Team.
 Definition..............................  300.8(c)(13).
 
BRAILLE (see Sec. Sec. 300.29(b), 300.324(a)(2)(iii))
 
BUREAU OF INDIAN AFFAIRS (BIA)
 BIA funded schools......................  300.28(c).
 In definition of ``LEA''................  300.28(c).
 See also Sec. Sec. 300.21(c),
 300.713(b), (d), 300.714
 Use of funds............................  300.712(d).
 
BUSINESS DAY
 Definition..............................  300.11(b).
 See ``Timelines,'' ``Timelines--
 Discipline''
 
BY-PASS: Private school children with disabilities (see
 Sec. Sec. 300.190 through 300.198)
 

[[Page 127]]

 
CALENDAR DAY
 Definition..............................  300.11(a).
 See ``Timelines,'' ``Timelines--
 Discipline''
 
CERTIFICATION
 Annual report of children served........  300.643.
 
CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS.......  300.536.
 
CHARTER SCHOOLS
 Applicability of this part to...........  300.2(b)(1)(ii).
 Definition..............................  300.7.
 Exception: joint establishment of         300.223(b).
 eligibility.
 In definition of ``Elementary school''..  300.13.
 In definition of ``LEA''................  300.28(b)(2).
 In definition of ``Public agency''......  300.33.
 In definition of ``Secondary school''...  300.36.
 State-level activities regarding charter  300.704(b)(4)(ix).
 schools.
 Treatment of charter schools and their    300.209.
 students.
 
CHIEF EXECUTIVE OFFICER (CEO)
 Adult prisons (Assigned by Governor)....  300.149(d).
 Methods of ensuring services (see Sec.
 300.154(a), (c))
 
CHILD COUNT
 Annual report of children served (see
 Sec. Sec. 300.640 through 300.646)
 Certification...........................  300.643.
 Criteria for............................  300.644.
 Dates for count.........................  300.641(a).
 Indian children.........................  300.712(b).
 LEA records of private school children..  300.132(c).
 Procedures for counting children served.  300.645(a).
 
CHILD FIND
 Basic requirement.......................  300.111(a).
 Children advancing from grade to grade..  300.111(c)(1).
 Developmental delay.....................  300.111(b).
 Highly mobile children..................  300.111(c)(2).
 Homeless children.......................  300.111(a)(1)(i).
 Indian children aged 3 through 5........  300.712(d)(1).
 Migrant children........................  300.111(c)(2).
 Private school children.................  300.131(b).
 Protections for children not determined   300.534.
 eligible.
 Secretaries of the Interior and Health    300.708(i)(2).
 and Human Services (Memo of agreement).
 
CHILD WITH A DISABILITY (CWD)
 Adversely affects educational
 performance (see Sec. 300.8(c)(1)(i), (c)(3), (c)(4)(i),
 (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12),
 (c)(13))
 Children experiencing developmental       300.8(b)(1).
 delay(s).
 Children who need only a related service  300.8(a)(2).
 Definition..............................  300.8(a)(1).
 Individual disability terms (Defined)...  300.8(c).
 Requirement.............................  300.111(b).
 See ``Developmental delay(s)''
 
CHILD'S STATUS DURING PROCEEDINGS
 Discipline (see Sec. Sec.
 300.530(f)(2), 300.533)
 Pendency (Stay put).....................  300.518.
 
CHILDREN ADVANCING FROM GRADE TO GRADE
 Child find..............................  300.111(c)(1).
 FAPE....................................  300.101(c).
 

[[Page 128]]

 
CHILDREN EXPERIENCING DEVELOPMENTAL DELAY(S) (See
 ``Developmental delay(s)'')
 
CHILDREN'S RIGHTS (Confidentiality)........................  300.625.
 
CIVIL ACTION--PROCEEDINGS..................................  300.516.
 Finality of review decision.............  300.514(d).
 Mediation...............................  300.506(b)(6)(i).
 Procedural safeguards notice............  300.504(c)(12).
 See ``Court(s)''
 
COCHLEAR IMPLANT (See ``Surgically implanted medical         300.34(b).
 device'').
 
CODE OF CONDUCT
 Case-by-case determination..............  300.530(a).
 Manifestation determination review......  300.530(e).
 Protections for children not determined   300.534(a).
 eligible.
 
COMMINGLING--PROHIBITION AGAINST...........................  300.162(b).
 
COMMUNITY-BASED WAIVERS (Public benefits or insurance).....  300.154(d)(2)(iii).
 
 COMPLAINT(S): DUE PROCESS
 Attorneys' fees.........................  300.517(a)(1).
 Civil action............................  300.516(a).
 Pendency................................  300.518(a).
 Private school children (Complaints)....  300.140(c).
 See ``Due process hearing(s) and
 reviews''
 
COMPLAINT(S): STATE COMPLAINT PROCEDURES (A-P)
 Adoption of State complaint procedures..  300.151(a).
 Complaint investigations (SEA             300.704(b)(3)(i).
 allocations for).
 Filing a complaint......................  300.153(a).
 Minimum State complaint procedures......  300.152.
 Private schools (State complaints)......  300.140.
 Procedural safeguards notice............  300.504(c).
 Provisions for services under by-pass...  300.191(d).
 Public agency failure to implement        300.152(c)(3).
 hearing decision.
 
COMPLAINT(S): STATE COMPLAINT PROCEDURES (Q-Z)
 See also Sec. Sec. 300.151 through
 300.153
 Time limit..............................  300.152(a).
 Waiver of nonsupplanting requirement....  300.163(c)(2).
 
COMPLIANCE--COMPLY (A-M)
 Child find requirements.................  300.111(a).
 Department procedures (If failure to      300.604(c).
 comply).
 FAPE requirement........................  300.101(a).
 LEA and State agency compliance.........  300.222(a).
 LRE (State funding mechanism)...........  300.114(b).
 Modifications of policies:..............
    [Omicron] Made by LEA or State agency..................  300.176(b).
    [Omicron] Required by SEA..............................  300.220(c).
    [Omicron] Required by Secretary........................  300.176(c).
 Monitoring (See ``Monitor; Monitoring
 activities'');
 
COMPLIANCE--COMPLY (N-Z)
 Physical education......................  300.108.
 Private school placement by parents.....  300.148(e).
 Private school placements by public
 agencies:
    [Omicron] IEP requirement..............................  300.325(c).
    [Omicron] SEA (Monitor compliance).....................  300.147(a)
 Public participation requirements.......  300.165.
 SEA responsibility if LEA does not        300.227(a).
 comply.

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 State funding mechanism (LRE)...........  300.114(b).
 
 COMPREHENSIVE EVALUATION................  300.304(c)(6).
 
CONDITION OF ASSISTANCE
 LEA eligibility.........................  300.200.
 State eligibility.......................  300.100.
 
CONFIDENTIALITY (A-C)
 Access rights...........................  300.613.
 Children's rights.......................  300.625.
 Consent.................................  300.622.
 
CONFIDENTIALITY (D-E)
Definitions:
    [Omicron] Destruction of information...................  300.611(a).
    [Omicron] Education records............................  300.611(b).
    [Omicron] Participating agency.........................  300.611(c).
 Department use of personally              300.627.
 identifiable information.
 Disciplinary information................  300.229.
 Enforcement by SEA......................  300.626.
 
CONFIDENTIALITY (F-Z)
 Family Educational Rights and Privacy
 Act:
    [Omicron] Children's rights............................  300.625.
    [Omicron] Disciplinary records.........................  300.535(b)(2).
    [Omicron] In definition of ``Education records''.......  300.611(b).
    [Omicron] Notice to parents............................  300.612(a)(3).
 Fees....................................  300.617.
 Hearing procedures......................  300.621.
 List of types and location of             300.616.
 information.
 Notice to parents.......................  300.612(a).
 Opportunity for a hearing...............  300.619.
 Parental authority to inspect and review  300.613(b).
 records.
 Record of access........................  300.614.
 Records on more than one child..........  300.615.
 Result of hearing.......................  300.620.
 Safeguards..............................  300.623.
 State eligibility requirement...........  300.123.
 
CONSENT (A-I)
 Confidentiality (Records to non-agency    300.622(a).
 officials).
 Definition..............................  300.9.
 IEP vs. IFSP............................  300.323(b)(2)(ii).
 Initial evaluations.....................  300.300(a).
 Initial provision of services...........  300.300(b).
 
CONSENT (J-Z)
 Not required:
    [Omicron] Before administering a test or other           300.300(d)(1)(ii).
     evaluation to all children.
    [Omicron] Before reviewing existing data...............  300.300(d)(1)(i).
    [Omicron] When screening for instructional purposes....  300.302.
 Private insurance (Accessing)...........  300.154(e)(1).
 Reasonable efforts to obtain consent:
    [Omicron] For initial evaluation.......................  300.300(a)(1)(iii).
    [Omicron] For initial evaluations for wards of the       300.300(a)(2).
     State.
    [Omicron] For initial provision of services............  300.300(b)(2).
    [Omicron] Reasonable efforts requirements..............  300.300(d)(5).
 Reevaluations...........................  300.300(c)(2).
 Release of information from education     300.622.
 records.
 
CONSIDERATION OF SPECIAL FACTORS (by IEP Team).............  300.324(a)(2).
 
CONSISTENCY WITH STATE POLICIES: LEA.......................  300.201.
 

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CONSTRUCTION
 Accessibility standards.................  300.718(b).
 Exception to maintenance of effort        300.204(d).
 (Termination of costly expenditures for construction).
 Private schools (No funds may be used     300.144(e).
 for).
 
CONSTRUCTION CLAUSES (A-I)
 Child find (Nothing requires classifying  300.111(d).
 children by disability).
 Civil action (Exhaust administrative      300.516(e).
 remedies under Part B before filing a civil action).
 Early intervening services..............  300.226(c).
 Funding mandated by State law...........  300.166.
 Hearing: right of parent to appeal        300.513(b).
 decision.
 Highly qualified SEA or LEA staff.......  300.156(e).
 Highly qualified teacher................  300.18(f).
 IEP (Inclusion of additional information  300.320(d)(1).
 beyond explicit requirements).
 IEP (Information in more than one         300.320(d)(2).
 component not required).
 
CONSTRUCTION CLAUSES (J-Z)
 Prohibition on mandatory medication.....  300.174(b).
 Referral to and action by law             300.535(a).
 enforcement and judicial authorities.
 Secretary's authority to monitor          300.609.
 enforcement under GEPA.
 State Medicaid agency (Nothing alters     300.154(h).
 requirements imposed under Titles XIX or XXI or other
 public benefits or insurance program).
 Transition service......................  300.324(c)(2).
 
CONSUMER PRICE INDEX For All Urban Consumers (regarding
 rate of inflation) (See Sec. Sec. 300.702(b),
 300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
 
CONTENT OF IEP.............................................  300.320(a).
 
CONTINUUM OF ALTERNATIVE PLACEMENTS (See ``Least             300.115.
 restrictive environment'').
 
CONTROLLED SUBSTANCE (Definition)..........................  300.530(i)(1).
 
COORDINATION OF SERVICES
 Methods of ensuring services............  300.154(a).
 Secretary of the Interior...............  300.708(i)(1).
    [Omicron] Advisory board (Service coordination within    300.714(b)(1).
     BIA).
    [Omicron] Payments for children aged 3 through 5.......  300.712(a).
    [Omicron] Plan for coordination of services............  300.713.
 See ``Interagency agreements,''
 ``Interagency coordination''
 State advisory panel (Advise SEA on)....  300.169(e).
 Use of LEA funds for early intervening    300.208(a)(2).
 services.
 Use of SEA allocations for transition...  300.704(b)(4)(vi).
CO-PAY OR DEDUCTIBLE (Public benefits or insurance)........  300.154(d)(2)(ii).
 
CORE ACADEMIC SUBJECTS
 Definition..............................  300.10.
 See ``Highly qualified special education  300.18.
 teachers''.
 
CORRECTIONAL FACILITIES
 Applicability of this part to...........  300.2(b)(1)(iv).
 Divided State agency responsibility.....  300.607.
 Exception to FAPE (Children in adult      300.102(a)(2).
 facilities).
 See also ``Adult prisons''

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 State advisory panel (Representatives     300.168(a)(11).
 on).
 State juvenile-adult correctional         300.2(b)(1)(iv).
 facilities.
 Transfer of rights to children in.......  300.520(a)(2).
 
CORRECTIVE ACTION (PLAN)
 Corrective actions to achieve compliance
 (see Sec. Sec. 300.152(b)(2)(iii), 300.607)
 Monitoring activities...................  300.120(b)(2).
 Needs intervention by Secretary.........  300.604(b)(2)(i).
 State advisory panel (Advise SEA on)....  300.169(d).
 
COUNSELING SERVICES (Definition)...........................  300.34(c)(2).
 
COUNT (See ``Child count'')
 
COURT(S)
 Attorneys' fees.........................  300.517.
 Civil action............................  300.516.
 Court order:
    [Omicron] Exception to FAPE for certain ages...........  300.102(a)(1).
 Judicial review:
    [Omicron] By-pass......................................  300.197.
    [Omicron] Department procedures........................  300.184.
 New interpretation of Act by courts       300.176(c)(2).
 requiring modification.
 Reimbursement for private school
 placement (see Sec. 300.148(b) through (e))
 
CRIME (See ``Reporting a crime'')..........................  300.535.
 
CRITERIA (A-I)
 Child count.............................  300.644.
 Child eligibility (Determinant factor)..  300.306(b)(1).
 IEP Team (Public agency representative).  300.321(a)(4).
 Independent educational evaluation......  300.502.
 
CRITERIA (J-Z)
 Specific learning disability (see Sec.
 Sec. 300.307, 300.309)
 Surrogate parents.......................  300.519(d).
 
CURRENT PLACEMENT (Discipline)
 Authority of hearing officer............  300.532(b).
 Placement during appeals................  300.533.
 
DATA (A-L)
 Allocation of remaining funds to LEAs...  300.816(d).
 Average per-pupil expenditure             300.717(d).
 (Definition).
 By-pass (Provision of services under)...  300.191(c)(2).
 Determination of needed evaluation data.  300.305(c).
 Disaggregated data......................  300.704(b)(4)(xi).
 Evaluation data:
    [Omicron] Procedures for determining eligibility and     300.306(c).
     placement.
    [Omicron] Review of existing data......................  300.305(a)(1).
 Grants to States most recent data.......  300.703(c)(1)(ii).
 LRE (Placements--meaning of evaluation    300.116(a)(1).
 data.
 
DATA (M-Z)
 Parental consent (Not required for        300.300(d)(1)(i).
 reviewing existing evaluation data).
 State advisory council (Advise SEA on)..  300.169(c).
 Suspension and expulsion rates..........  300.170(a).
 
DAY
 Business day (Definition)...............  300.11(b).
 Day (Calendar)..........................  300.11(a).
 Discipline (See ``Timelines--
 Discipline'')
 School day (Definition).................  300.11(c).

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 See ``Timelines''.......................
 
DECREASE IN ENROLLMENT (Exception to LEA maintenance of      300.204(b).
 effort).
 
DECREASE IN FUNDS (To States)..............................  300.703(d).
 
DEDUCTIBLE OR CO-PAY (Public benefits or insurance)........  300.154(d)(2)(ii).
 
DEFINITIONS (A-D)
 Act.....................................  300.4.
 Assistive technology device.............  300.5.
 Assistive technology service............  300.6.
 At no cost..............................  300.39(b)(1).
 Audiology...............................  300.34(c)(1).
 Autism..................................  300.8(c)(1).
 Average per-pupil expenditure in public   300.717(d).
 elementary and secondary schools in the United States.
 Business day............................  300.11(b).
 Charter school..........................  300.7.
 Child with a disability.................  300.8(a)(1).
 Consent.................................  300.9.
 Controlled substance....................  300.530(i)(1).
 Core academic subjects..................  300.10.
 Counseling services.....................  300.34(c)(2).
 Day; business day; school day...........  300.11.
 Deaf-blindness..........................  300.8(c)(2).
 Deafness................................  300.8(c)(3).
 Destruction (Of information)............  300.611(a).
 Developmental delays(s).................  300.8(b).
 
DEFINITIONS (E-H)
 Early identification and assessment.....  300.34(c)(3).
 Education records.......................  300.611(b).
 Educational service agency..............  300.12.
 Elementary school.......................  300.13.
 Emotional disturbance...................  300.8(c)(4).
 Equipment...............................  300.14.
 Evaluation..............................  300.15.
 Excess costs............................  300.16.
 Extended school year services...........  300.106(b).
 Free appropriate public education.......  300.17.
 Freely associated States................  300.717(a).
 Hearing impairment......................  300.8(c)(5).
 Highly qualified special education        300.18(b).
 teacher.
 Homeless children.......................  300.19.
 
DEFINITIONS (I)
 IEP Team................................  300.23.
 Illegal drug............................  300.530(i)(2).
 Include.................................  300.20.
 Independent educational evaluation......  300.502(a)(3)(i).
 Indian..................................  300.21(a).
 Indian tribe............................  300.21(b).
 Individualized education program (IEP)..  300.22.
 Individualized family service plan......  300.24.
 Infant or toddler with a disability.....  300.25.
 Institution of higher education.........  300.26.
 Interpreting services...................  300.34(c)(4).
 
DEFINITIONS (J-O)
 Limited English proficient (LEP)........  300.27.
 Local educational agency (LEA)..........  300.28.
 Medical services........................  300.34(c)(5).

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 Mental retardation......................  300.8(c)(6).
 Multiple disabilities...................  300.8(c)(7).
 Native language.........................  300.29(a).
 Occupational therapy....................  300.34(c)(6).
 Orientation and mobility services.......  300.34(c)(7).
 Orthopedic impairment...................  300.8(c)(8).
 Other health impairment.................  300.8(c)(9).
 Outlying areas..........................  300.717(b).
 
DEFINITIONS (P-R)
 Parent..................................  300.30(a).
 Parent counseling and training..........  300.34(c)(8).
 Parent training and information center..  300.31.
 Parentally-placed private school          300.130.
 children with disabilities.
 Participating agency (as used in          300.611(c).
 ``Confidentiality'').
 Party or parties (Regarding procedures).  300.181(a).
 Personally identifiable.................  300.32.
 Physical education......................  300.39(b)(2).
 Physical therapy........................  300.34(c)(9).
 Psychological services..................  300.34(c)(10).
 Public agency...........................  300.33.
 Public expense..........................  300.502(a)(3)(ii).
 Recreation..............................  300.34(c)(11).
 Rehabilitation counseling services......  300.34(c)(12).
 Related services........................  300.34(a).
 
DEFINITIONS (S)
 School day..............................  300.11(c).
 School health services..................  300.34(c)(13).
 School nurse services...................  300.34(c)(13).
 Scientifically based research...........  300.35.
 Secondary school........................  300.36.
 Secretary...............................  300.38.
 Serious bodily injury...................  300.530(i)(3).
 Services plan...........................  300.37.
 Social work services in schools.........  300.34(c)(14).
 Special education.......................  300.39(a).
 Specially designed instruction..........  300.39(b)(3).
 Specific learning disability............  300.8(c)(10).
 Speech-language pathology services......  300.34(c)(15).
 Speech or language impairment...........  300.8(c)(11).
 State...................................  300.40.
 State (Special definition)..............  300.717(c).
 State educational agency (SEA)..........  300.41.
 Supplementary aids and services.........  300.42.
 
DEFINITIONS (T-Z)
 Transition services.....................  300.43.
 Transportation..........................  300.34(c)(16).
 Traumatic brain injury..................  300.8(c)(12).
 Travel training.........................  300.38(b)(4).
 Universal design........................  300.44.
 Visual impairment including blindness...  300.8(c)(13).
 Vocational education....................  300.39(b)(5).
 Ward of the State.......................  300.45.
 Weapon..................................  300.530(i)(4).
 
DEPARTMENT OF LABOR, Bureau of Labor Statistics (Regarding
 rate of inflation) (see Sec. Sec. 300.702(b),
 300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
 
DEPARTMENT (U.S. Department of Education)

[[Page 134]]

 
 Enforcement: hearing procedures (see
 Sec. Sec. 300.178 through 300.184)
 Monitoring (Regarding Secretary of the    300.708(a).
 Interior).
 Personally identifiable information (Use  300.627.
 of).
 
DESTRUCTION OF INFORMATION.................................  300.624(b).
 Definition..............................  300.611(a).
 
DETERMINANT FACTOR for eligibility determination
 Lack of instruction in reading or math
 (see Sec. 300.306(b)(1)(i), (b)(1)(ii))
 Limited English proficiency.............  300.306(b)(1)(iii).
 
DEVELOPMENT, REVIEW, AND REVISION OF IEP...................  300.324.
 
DEVELOPMENTAL DELAY(S)
 In definition of ``Child with a           300.8(b).
 disability''.
 Requirements for using ``Developmental    300.111(b).
 delay''.
 State definition........................  300.111(b).
 Using specified disability categories...  300.111(d).
 
DIABETES...................................................  300.8(c)(9)(i).
 
DIRECT SERVICES
 For children in private schools (see
 Sec. Sec. 300.132(a); 300.133(a); 300.134(d)(1))
 Nature and location of services.........  300.227(b).
 Payment by Secretary of the Interior....  300.712(d).
 SEA (Additional information)............  300.175(a).
 State-level activities..................  300.704(b)(4)(i).
 Use of LEA allocations for..............  300.227(a).
 
DISABILITY: ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See
 ``Adversely affects educational performance'')
 
DISAGGREGATED DATA
 Assessment results for subgroup of        300.704(b)(4)(xi).
 children with disabilities.
 For suspension and expulsion by race and  300.170(a).
 ethnicity.
 
DISCIPLINE (A-B)
 Alternative educational setting (see
 Sec. Sec. 300.530(d)(1), (d)(2), (d)(4), (g), 300.531,
 300.533)
 Appeal..................................  300.532(a).
 Behavioral interventions--intervention    300.530(f).
 plan.
 
DISCIPLINE (C-H)
 Change of placements for disciplinary     300.536.
 removals.
 Child's status during due process         300.518.
 hearings.
 Determination of setting................  300.531.
 Expedited due process hearings..........  300.532(c).
 Functional behavioral assessment (see
 Sec. 300.530(d)(1)(ii), (f)(1)(i)).
 Hearing officer (authority of) (see Sec.
  Sec. 300.532(b), 300.533).
 
DISCIPLINE (I-Z)
 IEP Team (relevant members) (see Sec.
 Sec. 300.530(e)(1), (f), 300.531).
 Interim alternative educational setting
 (see Sec. Sec. 300.530(b), (d)(2), (g), 300.531,
 300.532(b)(2)(ii), 300.533).
 Manifestation determination.............  300.530(e).
 Placement during appeals................  300.533.
 Protections for children not determined   300.534.
 eligible.
 Referral to and action by law             300.535.
 enforcement and judicial authorities.
 School personnel (Authority of).........  300.530(b).
 See ``Timelines--Discipline''...........
 

[[Page 135]]

 
DISCLOSURE
 Additional disclosure of information      300.512(b).
 requirement.
 Consent required before disclosing:
    [Omicron] Education records to public benefits or        300.154(d)(2)(iv).
     insurance agencies.
    [Omicron] Personal information to non-agency officials.  300.622(a).
 Notice on disclosure of evaluation        300.504(c)(10).
 results.
 Policies on disclosing information to     300.612(a)(3).
 3rd parties.
 Prohibit evidence not disclosed.........  300.512(a)(3).
 
DISPROPORTIONALITY.........................................  300.646.
 
DISPUTES
 Interagency disputes (Methods of
 ensuring services):
    [Omicron] Ensure services during pendency of dispute...  300.154(a).
    [Omicron] Procedures for resolving.....................  300.154(a)(3).
 Mediation (see also Sec. 300.506.
 300.532(c)(3)).
    [Omicron] Attorneys' fees for..........................  300.517(c)(2)(ii).
    [Omicron] During discipline appeal process.............  300.532(c)(3).
    [Omicron] During resolution process (see Sec.
     300.510(b)(3), (c)(3))
    [Omicron] Enforcement of agreement (see Sec. Sec.
     300.506(b)(7), 300.510(d)(2), 300.537)
 
DIVIDED STATE AGENCY RESPONSIBILITY (Adult prisons)........  300.607.
 
DIVORCE--SEPARATION (Authority to review records)..........  300.613(c).
 
DROPOUT RATES (Performance indicators).....................  300.157(a)(3).
 
DUE PROCESS HEARING(S) AND REVIEWS (A-E)
 Agency responsible for conducting         300.511(b).
 hearing.
 Appeal of decisions; impartial review...  300.514(b).
 Attorneys' fees.........................  300.517(a).
 Basic requirements (see Sec. Sec.
 300.507 through 300.514)
 Child's status during proceedings         300.518.
 (Pendency).
    [Omicron] Parent request for hearing (Discipline)......  300.532(a).
 Civil action............................  300.516(a).
 Evaluations disclosed at least 5          300.512(a)(3).
 business days before hearing.
 Expedited due process hearings            300.532(c).
 (Discipline).
 
DUE PROCESS HEARING(S) AND REVIEWS (F-I)
 Failure to implement a due process        300.152(c)(3).
 hearing decision.
 Finality of decision; appeal; impartial   300.514.
 review.
 Findings of fact and decisions (see Sec.
   300.512(a)(5), (c)(3)):
    [Omicron] To State advisory panel (see Sec. Sec.
     300.513(d), 300.514(c))
 Hearing rights..........................  300.512(a).
 Impartial hearing officer...............  300.511(c).
    [Omicron] See ``Hearing officer(s)''
 
DUE PROCESS HEARING(S) AND REVIEWS (J-Z)
 Parental rights at hearings.............  300.512(c).
 Party notice to other party.............  300.508(c).
    [Omicron] Model form to assist parents.................  300.509.
 Party request for hearing (Discipline)..  300.532(a).
 Pendency (Stay put).....................  300.518.
 Prohibit evidence not introduced 5        300.512(a)(3).
 business days before hearing.
 Record of hearing.......................  300.512(c)(3).
 See ``Civil action--proceedings,''
 ``Court(s)'' ``Procedural safeguards,'' ``Timelines''

[[Page 136]]

 
 Timelines and convenience of hearings--
 reviews (see Sec. Sec. 300.506(b)(5), 300.511(e),
 300.516(b))
 
EARLY IDENTIFICATION AND ASSESSMENT (Definition)...........  300.34(c)(3).
 
EARLY INTERVENING SERVICES.................................  300.226.
 Adjustment to local fiscal efforts......  300.205(d).
 Do not limit/create right to FAPE.......  300.226(c).
 For children not currently identified as  300.226(a).
 needing special education or related services.
 Permissive use of funds.................  300.208(a)(2).
 Scientifically based literacy             300.226(b).
 instruction.
 Use of funds:
    [Omicron] By LEA.......................................  300.226(a).
    [Omicron] By Secretary of the Interior.................  300.711.
 
EDUCATION RECORDS (Definition).............................  300.611(b).
 
EDUCATIONAL PLACEMENTS (LRE)...............................  300.114.
 
EDUCATIONAL SERVICE AGENCY (ESA)
 Definition..............................  300.12.
 In definition of ``LEA''................  300.28(b)(1).
 Joint establishment of eligibility        300.224(b).
 (Regarding ESAs).
    [Omicron] Additional requirements (Regarding LRE)......  300.224(c).
 
ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965 (ESEA)
 Coordination of early intervening         300.226(e).
 services.
 Excess cost requirement.................  300.202(b).
 Schoolwide programs.....................  300.206(a).
 
ELIGIBILITY (CHILD--STUDENT) (A-G)
 Additional eligibility requirements (see
 Sec. Sec. 300.121 through 300.124, 300.307 through
 300.311)
 Children with disabilities in adult       300.324(d).
 prisons.
 Children with specific learning           300.311(a).
 disabilities (Documentation of eligibility determination).
 Determinant factor for..................  300.306(b)(1).
 Determination of eligibility............  300.306.
 Developmental delay (Non-use of term by   300.111(b)(iv).
 LEA if not adopted by State).
 Documentation of eligibility (To parent)  300.306(a)(2).
 Graduation with regular diploma:
 termination (see Sec. Sec. 300.102(a)(3),
 300.305(e)(2)).
 
ELIGIBILITY (CHILD--STUDENT) (H-Z)
 Lack of instruction in reading or math..  300.306(b).
 Limited English proficiency.............  300.306(b).
 Public benefits or insurance (Risk loss   Sec. 300.154(d)(2) (iii).
 of eligibility).
 Termination of eligibility (see Sec.
 Sec. 300.204(c), 300.305(e)(2))
 Transfer of rights (Special rule).......  300.520(b).
 
ELIGIBILITY (PUBLIC AGENCIES)
 Hearings related to (See ``Hearings--
 Hearing procedures'')
 Joint establishment of (see Sec. Sec.
 300.202(b)(3), 300.223(a), 300.224(a))
 LEA (See ``LEA eligibility'') Secretary   300.712(e).
 of the Interior.
 State (See ``State eligibility'')
 State agency eligibility................  300.228.
    [Omicron] See ``State agencies''
 
EMOTIONAL DISTURBANCE (Definition).........................  300.8(c)(4).
 
ENFORCEMENT

[[Page 137]]

 
 Department procedures (see Sec. Sec.
 300.600, 300.604, 300.605)
 Referral to law enforcement authorities.  300.535.
 State policies and procedures:
    [Omicron] Enforcement mechanisms.......................  300.537.
    [Omicron] LEA not meeting requirements.................  300.608.
    [Omicron] Regarding confidentiality....................  300.626.
 
EPILEPSY...................................................  300.8(c)(9)(i).
 
EQUIPMENT
 Acquisition of..........................  300.718(a).
 Definition..............................  300.14.
 Exception to maintenance of effort......  300.204(d).
 Placement in private school.............  300.144.
 
EVALUATION (A-G)
 Assessments in (see Sec. Sec.
 300.304(b), (c) 300.305(c)).
 Basic requirements (see Sec. Sec.
 300.301, 300.303, 300.324)
 Comprehensive (Identify all special       300.304(c)(6).
 education needs).
 Definition of...........................  300.15.
 Evaluation procedures...................  300.304.
 Evaluation report to parents............  300.306(a)(2).
 Existing evaluation data (Review of)....  300.305(a)(1).
 Graduation (Evaluation not required for)  300.305(e)(2).
 
EVALUATION (H-Z)
 Independent educational evaluation (IEE)  300.502.
 Initial evaluation (see Sec. Sec.
 300.301, 300.305)
 Observation in determining SLD..........  300.310.
 Parent consent..........................  300.300.
 Parent right to evaluation at public      300.502(b).
 expense.
 Reevaluation............................  300.303.
 
EXCEPTION
 Charter schools exception (Joint          300.223(b).
 eligibility).
 For prior local policies and procedures.  300.220.
 For prior State policies and procedures.  300.176(a).
 To FAPE:
    [Omicron] For certain ages.............................  300.102.
    [Omicron] For graduating with a regular diploma........  300.102 (a)(3)(i).
    [Omicron] For children in adult prisons (see Sec. Sec.
       300.102(a)(2), 300.324(d)).
  To maintenance of effort...............  300.204.
 To reimbursement for parental placement.  300.148(e).
 
EXCESS COSTS
 Calculation of (see Appendix A--Excess
 Costs Calculation)
 Definition..............................  300.16.
 Excess cost requirement.................  300.202(b)
 Joint establishment of eligibility......  300.202(b)(3)
 LEA requirement.........................  300.202(b)
 Limitation on use of Part B funds.......  300.202(b)
 Meeting the excess cost requirement.....  300.202(b)(2)
 See also Sec. Sec. 300.163(a),
 300.175(b), 300.202(a), 300.227(a)(2)(ii)
 
EXISTING EVALUATION DATA (Review of).......................  300.305(a)(1).
 
EXPEDITED DUE PROCESS HEARINGS.............................  300.532(c).
 Authority of hearing officer............  300.532(b).
 Party appeal (Hearing requested by        300.532(a).
 parents).
 
EXPULSION (See ``Suspension and expulsion'')
 
EXTENDED SCHOOL YEAR SERVICES..............................  300.106.
 
EXTRACURRICULAR

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 IEP content.............................  300.320(a)(4)(ii).
 In supplementary aids and services......  300.42.
 Nonacademic services....................  300.107.
 Nonacademic settings....................  300.117.
 
FACILITIES
 Alteration of...........................  300.718.
 Children in private schools or
 facilities (see Sec. Sec. 300.130, 300.142(a),
 300.144(b), (c), 300.147(c))
 Construction of.........................  300.718.
 Physical education (In separate           300.108(d).
 facilities).
 Private schools and facilities..........  300.2(c).
 See also ``Correctional facilities''
 Termination of expenses for construction  300.204(d).
 of.
 
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) (See
 ``Confidentiality'')
 
FAPE (A-G)
 Definition..............................  300.17.
 Documentation of exceptions.............  300.102(b).
 Exception to FAPE:
    [Omicron] For certain ages.............................  300.102(a).
    [Omicron] For children receiving early intervention      300.102(a)(4).
     services.
    [Omicron] For children graduating with a regular         300.102(a)(3).
     diploma.
    [Omicron] For children in adult correctional facilities  300.102(a)(2).
 For children:
    [Omicron] Advancing from grade to grade................  300.101(c).
    [Omicron] Beginning at age 3...........................  300.101(b).
    [Omicron] On Indian reservations.......................  300.707(c).
    [Omicron] Suspended or expelled from school............  300.101(a).
 General requirement.....................  300.101(a).
 
FAPE (H-Z)
 Methods and payments....................  300.103.
 Private school children with
 disabilities:
    [Omicron] Placed by parents when FAPE is at issue......  300.148.
    [Omicron] Placed in or referred by public agencies (see
     Sec. Sec. 300.145 through 300.147)
 Reallocation of LEA funds (FAPE           300.705(c).
 adequately provided).
 Services (and placement) for FAPE:
    [Omicron] Based on child's needs (Not disability         300.304(c)(6).
     category).
 State eligibility condition.............  300.100.
FAS (Freely associated States).............................  300.717(a).
 
FAX (FACSIMILE TRANSMISSION)
 Department procedures (see Sec. Sec.
 300.183, 300.196(a) through (e))
 
FERPA (Family Educational Rights and Privacy Act) (See
 ``Confidentiality'')
 
FILING A CLAIM (Private insurance).........................  300.154(e).
 
FILING A COMPLAINT (State complaint procedures)............  300.153.
 
FILING REQUIREMENTS
 By-pass (Regarding private school         300.196.
 children).
 Department procedures...................  300.183.
 See Sec. Sec. 300.178 through
 300.186.
 
FINALITY OF DECISION.......................................  300.514.
 
FORMULA
 Allocations to LEAs.....................  300.705(b).
 Allocations to States...................  300.703.
 Allocation to States when by-pass is      300.191.
 implemented.

[[Page 139]]

 
 Allocation to States regarding section
 619 (see Sec. Sec. 300.807, 300.810).
 Parentally-placed private school          300.133.
 children.
 SEA set aside funds.....................  300.704(b).
 See also Sec. 300.171(a).
 
FOSTER PARENT..............................................  300.30(a)(2).
 See also Sec. 300.45(b).
 
FREELY ASSOCIATED STATES AND OUTLYING AREAS
 Funding for.............................  300.701(a).
 Purpose of grants.......................  300.700(a).
 
FULL EDUCATIONAL OPPORTUNITY GOAL..........................  300.109.
 
FUNCTIONAL BEHAVIORAL ASSESSMENT (see Sec.
 300.530(d)(1)(ii), (f)(1)(i))
 
FUNDING MECHANISM: LRE.....................................  300.114(b).
 
FUNDS (See ``Use of funds'')
 
GENERAL CURRICULUM
 Discipline (Continue participating in)..  300.530(d)(1)(i).
 Evaluation procedures:
    [Omicron] Be involved and progress in..................  300.304(b)(1)(ii).
    [Omicron] Review of existing evaluation data...........  300.305(a)(1).
 IEPs:
    [Omicron] Measurable annual goals......................  300.320(a)(2)(i).
    [Omicron] Present levels of educational performance....  300.320(a)(1).
    [Omicron] Review and revision of IEPs..................  300.324(b)(1)(ii).
    [Omicron] Special education and related services.......  300.320(a)(4)(ii).
 IEP Team................................  300.321(a)(4)(ii).
 Specially designed instruction            300.39(b)(3).
 (Definition).
 
GOALS
Annual goals (See ``IEP'' and ``Annual goals'').
 Performance goals and indicators........  300.157.
    [Omicron] State and local activities to meet...........  300.814(c).
    [Omicron] Use of State-level funds to meet.............  300.704(b)(4)(x).
 
GOVERNOR (Adult prisons)...................................  300.149(d).
 See also ``Chief executive officer''.
 
GRADUATION
 Evaluation not required for.............  300.305(e)(2).
 Exception to FAPE.......................  300.102(a)(3)(i).
 Graduation rates as performance           300.157(a)(3).
 indicators.
 Written prior notice required...........  300.102(a)(3)(iii).
 
GRANDPARENT OR STEPPARENT (In definition of ``Parent'')....  300.30(a)(4).
 
GRANTS
 Grants to States:.......................  300.700.
    [Omicron] Maximum amount...............................  300.700(b).
    [Omicron] Purpose of...................................  300.700(a).
 See ``Subgrants''.
 
GUARDIAN (In definition of ``Parent'').....................  300.30(a)(3).
 
GUARDIANSHIP, SEPARATION, AND DIVORCE (Regarding parent's    300.613(c).
 authority to review records).
 
HEALTH AND HUMAN SERVICES (Secretary of)...................  300.708(i)(1).
 
HEARING AIDS: Proper functioning of........................  300.113(a).
 
HEARING IMPAIRMENT
 Definition..............................  300.8(c)(5).
 Related services, audiology.............  300.34(c)(1).
HEARING OFFICER(S) (A-B)

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 Additional disclosure of information      300.512(b).
 requirement.
 Attorneys' fees.........................  300.517(c)(2)(i).
 Authority of (Discipline)...............  300.532(b).
    [Omicron] Basis of decisions...........................  300.513(a).
 
HEARING OFFICER(S) (C-Z)
 Change of placement:
    [Omicron] Hearing officer decision agrees with parents.  300.518(d).
    [Omicron] Hearing officer may order....................  300.532(b)(2)(ii).
 Expedited due process hearing             300.532(c).
 (Discipline).
 Impartial hearing officer...............  300.511(c).
 Parent appeal (Discipline)..............  300.532(a).
 Placement during appeals................  300.533.
 Private school placement when FAPE is at  300.148(b).
 issue.
 Reimbursement for private school          300.148(c).
 placement by parents.
 Requests for evaluations by.............  300.502(d).
 
HEARING RIGHTS.............................................  300.512.
 
HEARINGS--HEARING PROCEDURES
 Due process (See ``Due process
 hearings'').
 Public hearings on policies and           300.165(a).
 procedures.
 State and local eligibility:
    [Omicron] LEA eligibility..............................  300.155.
    [Omicron] Notification in case of LEA or State           300.221.
     ineligibility.
    [Omicron] State eligibility (Notice and hearing) (see
     Sec. Sec. 300.178, 300.179, 300.181).
 
HEART CONDITION............................................  300.8(c)(9)(i).
 
HEIGHTENED ALERTNESS TO ENVIRONMENTAL STIMULI (In ``Other    300.8(c)(9).
 health impairment'').
HIGH COST FUND (LEA).......................................  300.704(c).
 
HIGHLY MOBILE CHILDREN (e.g., homeless and migrant           300.111(c)(2).
 children).
 
HIGHLY QUALIFIED TEACHER (A-Q)
 Alternative route to certification......  300.18(b)(2).
 Definition of...........................  300.18.
 Private school teachers.................  300.18(h).
 
HIGHLY QUALIFIED TEACHER (R-Z)
 Requirements for in general.............  300.18(b).
 Requirements for teaching to alternate    300.18(c).
 academic achievement standards.
 Requirements for teaching multiple        300.18(d).
 subjects.
 Personnel qualifications................  300.156(c).
 
HIGH NEED CHILD............................................  300.704(c)(3)(i).
 
HOMELESS CHILDREN
 Child find..............................  300.111(a)(1)(i).
 Definition of...........................  300.19.
 McKinney-Vento Homeless Assistance Act
 (see Sec. Sec. 300.19, 300.149(a)(3),
 300.153(b)(4)(iii), 300.168(a)(5), 300.508(b)(4)).
 Surrogate parents for...................  300.519(a)(4).
 
HYPERACTIVITY (Attention deficit hyperactivity disorder)...  300.8(c)(9)(i).
 
INAPPLICABILITY (Of requirements that prohibit commingling   300.704(d).
 and supplanting of funds).
 
IEE (See ``Independent educational evaluation'')
 
IEP (A-I)
 Agency responsibilities for transition    300.324(c)(1).
 services.

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 Basic requirements (see Sec. Sec.
 300.320 through 300.324).
 Child participation when considering      300.321(b)(1).
 transition.
 Consideration of special factors........  300.324(a)(2).
 Consolidation of IEP Team meetings......  300.324(a)(5).
 Content of IEPs.........................  300.320(a).
 Definition (see Sec. Sec. 300.22,
 300.320).
 Development, review, and revision of....  300.324.
 IEP or IFSP for children aged 3 through   300.323(b).
 5.
 IEP Team................................  300.321.
 
IEP (J-Z)
 Modifications of IEP or placement (FAPE   300.324(d)(2)(i).
 for children in adult prisons).
 Modify/Amend without convening meeting
 (see Sec. 300.324(a)(4), (a)(6)).
 Parent participation....................  300.322.
 Alternative means.......................  300.328.
 Part C coordinator involvement..........  300.321(f).
 Private school placements by public       300.325(a)(1).
 agencies.
 Regular education teacher (See ``IEP
 Team'').
 Review and revision of IEPs.............  300.324(b).
 SEA responsibility regarding private      300.325(c).
 school.
 State eligibility requirement...........  300.112.
 Transition services.....................  300.320(b).
 When IEPs must be in effect.............  300.323.
 
IEP TEAM...................................................  300.321.
 Alternative educational setting           300.531.
 (Determined by).
 Consideration of special factors........  300.324(a)(2).
    [Omicron] Assistive technology.........................  300.324(a)(2)(v).
    [Omicron] Behavioral interventions.....................  300.324(a)(2)(i).
    [Omicron] Braille needs................................  300.324(a)(2)(iii).
    [Omicron] Communication needs (Deafness and other        300.324(a)(2)(iv).
     needs).
    [Omicron] Limited English proficiency..................  300.324(a)(2)(ii).
 Determination of knowledge or special     300.321(c).
 expertise.
 Discipline procedures (see Sec. Sec.
 300.530(e), 300.531).
 Manifestation determination.............  300.530(e).
 Other individuals who have knowledge or   300.321(a)(6).
 special expertise (At parent or agency discretion).
 Participation by private school (public   300.325(a).
 agency placement).
 Regular education teacher (see Sec.
 Sec. 300.321(a)(2), 300.324(a)(3)).
 
IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN)
 Definition..............................  300.24.
 Transition from Part C..................  300.124.
 IFSP vs. IEP............................  300.323(b).
 
ILLEGAL DRUG (Definition--discipline)......................  300.530(i)(2).
 
IMPARTIAL DUE PROCESS HEARING..............................  300.511.
 See ``Due process hearings and
 reviews''.
 
IMPARTIAL HEARING OFFICER..................................  300.511(c).
 
 IMPARTIALITY OF MEDIATOR..................................  300.506(b)(1).
 
INCIDENTAL BENEFITS (Permissive use of funds)..............  300.208.
 
INCIDENTAL FEES (In definition of ``at no cost'' under       300.39(b)(1).
 ``Special education'').
 
INCLUDE (Definition).......................................  300.20.
 
INDEPENDENT EDUCATIONAL EVALUATION (IEE)...................  300.502.
 Agency criteria (see Sec.
 300.502(a)(2), (b)(2)(ii), (c)(1), (e)).
 Definition..............................  300.502(a)(3)(i).

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 Parent-initiated evaluations............  300.502(c).
 Parent right to.........................  300.502(a)(1).
 Procedural safeguards notice............  300.504(c)(1).
 Public expense (Definition under IEE)...  300.502(a)(3)(ii).
 Request by hearing officers.............  300.502(d).
 Use as evidence at hearing..............  300.502(c)(2).
 
INDIAN; INDIAN CHILDREN
 Child find for Indian children aged 3     300.712(d).
 through 5.
 Definition of ``Indian''................  300.21(a).
 Definition of ``Indian tribe''..........  300.21(b).
 Early intervening services..............  300.711.
 Payments and use of amounts for:
    [Omicron] Education and services for children aged 3     300.712(a).
     through 5.
    [Omicron] Education of Indian children.................  300.707.
 Plan for coordination of services.......  300.713.
 Submission of information by Secretary    300.708.
 of Interior.
 
INDICATORS.................................................  300.157(b).
 See ``Performance goals and
 indicators''.
 
INDIVIDUALIZED EDUCATION PROGRAM (See ``IEP'')
 
INDIVIDUALIZED FAMILY SERVICE PLAN (See ``IFSP'')
 
INFORMED CONSENT (See ``Consent'')
 
INITIAL EVALUATION.........................................  300.301.
 Consent before conducting...............  300.300(a)(1)(i).
    [Omicron] For ward of State............................  300.300(a)(2).
    [Omicron] Not construed as consent for initial           300.300(a)(1)(ii).
     placement.
    [Omicron] When not required............................  300.300(a)(2).
 Review of existing evaluation data......  300.305(a).
 
INSTITUTION OF HIGHER EDUCATION
 Definition..............................  300.26.
 
INSTRUCTIONAL MATERIALS
 Access to...............................  300.172.
 Audio-visual materials..................  300.14(b).
 LEA purchase of.........................  300.210.
 NIMAC:
    [Omicron] SEA coordination with........................  300.172(c).
    [Omicron] SEA rights and responsibilities if not         300.172(b).
     coordinating.
 
INSURANCE
 Community-based waivers (see Sec.
 300.154(d)(2)(iii)(D)).
 Financial costs.........................  300.154(f)(2).
 Financial responsibility of LEA/SEA.....  300.154(a)(1).
 Out-of-pocket expense...................  300.154(d)(2)(ii).
 Private insurance.......................  300.154(e).
 Public benefits or insurance............  300.154(d).
 Risk of loss of eligibility (see Sec.
 300.154(d)(2)(iii)(D)).
 
INTERAGENCY AGREEMENTS
 FAPE methods and payments (Joint          300.103(a).
 agreements).
 LRE (Children in public/private           300.114(a)(2)(i).
 institutions).
 Methods of ensuring services............  300.154(a).
 SEA responsibility for general            300.149.
 supervision.
 Secretary of Interior--with Health and    300.708(i)(1).
 Human Services Secretary.
    [Omicron] Cooperative agreements (BIA and other          300.712(d).
     agencies).
 

[[Page 143]]

 
INTERAGENCY COORDINATION (See ``Coordination of services,''
 ``Interagency agreements'')
 
INTERAGENCY DISPUTES.......................................  300.154(a)(3).
 
INTERAGENCY RESPONSIBILITIES (Transition services).........  300.320(b).
 
INTERIM ALTERNATIVE EDUCATIONAL SETTING (See Sec. Sec.
 300.530(b), 300.531, 300.532(b)(2)(ii), 300.533)
 
INTERPRETING SERVICES
 As a related service....................  300.34(a).
 Definition..............................  300.34(c)(4).
 
JOINT ESTABLISHMENT OF ELIGIBILITY (LEAs)..................  300.223.
 See also Sec. Sec. 300.202(b)(3),
 300.224.
 
JUDICIAL
 Authorities (Referral to)...............  300.535.
 Finding of unreasonableness.............  300.148(d)(3).
 Proceeding (During pendency)............  300.518(a).
 Review..................................  300.197.
 See also:
    [Omicron] Civil action (see Sec. Sec.
     300.504(c)(12), 300.514(d), 300.516).
    [Omicron] Court(s) (see Sec. Sec. 300.102(a)(1),
     300.184, 300.148(c), (d)(3), 300.197, 300.516(a), (c),
     (d), 300.517(a), (c)).
 
JUVENILE-ADULT CORRECTIONS FACILITIES (See ``Correctional
 facilities'')
 
LAW ENFORCEMENT AND JUDICIAL AUTHORITIES
 Referral to.............................  300.535.
 
LEA (LOCAL EDUCATIONAL AGENCY) (A-C)
 Allocations to LEAs.....................  300.705(b).
    [Omicron] Reallocation of funds (If LEA is adequately    300.705(c).
     providing FAPE).
 Charter schools and LEAs (See ``Charter
 schools'').
 Child count--LEAs:
    [Omicron] Parentally-placed private school children      300.133(c).
     with disabilities.
    [Omicron] Procedures for counting all children served    300.645.
     (Annual report).
    [Omicron] See also ``Child count''.
 Child find--LEAs:
    [Omicron] Parentally-placed private school children      300.131.
     with disabilities.
    [Omicron] See also ``Child find''......................
 Compliance (LEA and State agency).......  300.222.
 Consistency of LEA policies with State    300.201.
 policies.
 
LEA (D-G)
 Definition of LEA.......................  300.28.
 Developmental delay: Use of term by LEAs
 (see Sec. 300.111(b)(2) through (b)(4)).
 Direct services by SEA (If LEA is unable  300.227.
 or unwilling to serve CWDs, etc.).
 Discipline and LEAs (See
 ``Discipline'').
 Eligibility of LEA:
    [Omicron] Condition of assistance (see Sec. Sec.
     300.200 through 300.213).
    [Omicron] Exception for prior local plans..............  300.220.
    [Omicron] Ineligibility of LEA (Notice by SEA).........  300.221.
    [Omicron] SEA hearings on LEA eligibility..............  300.155.
 Excess cost requirement--LEA:...........  300.202(b).
    [Omicron] Use of amounts for excess costs..............  300.202(a)(2).

[[Page 144]]

 
    [Omicron] See also ``Excess costs''.
 
LEA (H-L)
 Hearings relating to LEA eligibility....  300.155.
 Information for SEA.....................  300.211.
 Instructional materials (Purchase of)...  300.210.
 Joint establishment of eligibility (By    300.202(b)(3).
 two or more LEAs).
    [Omicron] See also Sec. Sec. 300.223, 300.224.......
 LEA and State agency compliance.........  300.222.
 LEA policies (Modification of)..........  300.220(b).
    [Omicron] See ``LEA eligibility,'' ``Eligibility of
     LEA''.
 
LEA (M-P)
 Maintenance of effort regarding LEAs
 (See ``Maintenance of effort'').
 Methods of ensuring services--LEAs (see
 Sec. 300.154(a)(1) through (a)(4), (b)).
 Migratory children with disabilities      300.213.
 (Linkage with records under ESEA).
 Modification of policies by LEA.........  300.220(b).
 Noncompliance of LEA (SEA determination)  300.222(a).
 Notice requirement (On LEA).............  300.222(b).
 Purchase of instructional materials.....  300.210.
 Personnel shortages (Use of funds to      300.704(b)(4)(vii).
 assist LEAs in meeting).
 Public information (By LEA).............  300.212.
 
LEA (R-T)
 Reallocation of LEA funds (If LEA is      300.705(c).
 adequately providing FAPE).
 Reimbursement of LEAs by other agencies
 (See ``Methods of ensuring services,'' Sec.
 300.154(a)(2) through (a)(3), (b)(2)).
 Review and revision of policies.........  300.170(b).
 SEA reduction in payments to LEA........  300.222(a).
 SEA use of LEA allocations for direct     300.227.
 services.
 Show cause hearing (By-pass requirement)  300.194.
 State-level nonsupplanting..............  300.162(c).
 Subgrants to LEAs.......................  300.705(a).
 Suspension and expulsion rates--LEAs....  300.170(a)(1).
 Transition planning conferences (Part C   300.124(c).
 to B).
 
LEA (U-Z)
 Use of amounts (by LEA).................  300.202.
    [Omicron] (See ``Permissive use of funds'').
 Use of SEA allocations (Regarding LEAs).  300.704.
    [Omicron] For capacity-building, etc. (see Sec.
     300.704(b)(4)(viii)).
    [Omicron] To assist in meeting personnel shortages (see
     Sec. 300.704(b)(4)(vii)).
 
LEA ELIGIBILITY (A-I)
 Adjustment to local fiscal efforts in     300.205.
 certain fiscal years.
 Charter schools--public:
    [Omicron] Rights of children with disabilities who       300.209(a).
     attend public charter schools.
    [Omicron] That are public schools of the LEA...........  300.209(b).
    [Omicron] That are LEAs................................  300.209(c).
    [Omicron] That are not an LEA or a school that is part   300.209(d).
     of an LEA.
    [Omicron] Treatment of charter schools and their         300.209.
     students.

[[Page 145]]

 
    [Omicron] See also ``Charter schools''.
 Condition of assistance.................  300.200.
    [Omicron] See Sec. Sec. 300.201 through 300.213.
 Consistency with State policies.........  300.201.
 Information for SEA.....................  300.211.
 
LEA ELIGIBILITY (M-Z)
 Maintenance of effort...................  300.203.
    [Omicron] Exception to.................................  300.204.
 Migratory children with disabilities--    300.213.
 records regarding.
 Permissive use of funds.................  300.208.
    [Omicron] Administrative case management...............  300.208(b).
    [Omicron] Early intervening services...................  300.208(a)(2).
    [Omicron] High cost special education and related        300.208(a)(3).
     services.
    [Omicron] Services and aids that also benefit            300.208(a)(1).
     nondisabled children.
 Personnel development...................  300.207.
 Records regarding migratory children      300.213.
 with disabilities.
 State prohibition (If LEA is unable to    300.205(c).
 establish/maintain programs of FAPE).
 Treatment of charter schools and their    300.209.
 students.
 
LEAD POISONING (Other health impairment)...................  300.8(c)(9)(i).
 
LEAST RESTRICTIVE ENVIRONMENT (LRE)
 Children in public or private             300.118.
 institutions.
 Continuum of alternative placements.....  300.115.
 Educational service agency (Additional    300.224(c).
 requirement regarding LRE).
 Monitoring activities...................  300.120.
 Nonacademic settings....................  300.117.
 Placements..............................  300.116.
 State eligibility requirements..........  300.114.
 Additional requirement: State funding     300.114(b).
 mechanism.
 Technical assistance and training.......  300.119.
 
LEISURE EDUCATION (Recreation).............................  300.34(c)(11)(iv).
 
LEP (See ``Limited English proficient'')
 
LEUKEMIA (Other health impairment).........................  300.8(c)(9)(i).
 
LIMITED ENGLISH PROFICIENT (LEP)
 Definition of...........................  300.27.
 Determinant factor in eligibility         300.306(b)(1)(iii).
 determination.
 In development, review, and revision of   300.324(a)(2)(ii).
 IEP.
 In ``native language'' (Definition).....  300.29(a).
 Special rule--LEP not determinant factor  300.306(b)(1)(iii).
 
LOCAL EDUCATIONAL AGENCY (See ``LEA'')
 
LRE (See ``Least restrictive environment'')
 
MAINTENANCE OF EFFORT (MOE-LEA) (A-R)
 Amounts in excess (Reduce level)........  300.205(a).
 Exception to............................  300.204.
 Maintenance of effort and early
 intervening services (see Appendix D).
 Maintenance of effort--LEA..............  300.203.
 Non-reduction of (State enforcement)....  300.608.
 Public benefits or insurance proceeds     300.154(g)(2).
 are not MOE.
    [Omicron] See ``Methods of ensuring services''.
 
MAINTENANCE OF EFFORT (MOE-LEA) (S-Z)
 SEA flexibility.........................  300.230(a).

[[Page 146]]

 
 State enforcement (SEA must prohibit LEA  300.608.
 from reducing MOE).
 
MAINTENANCE OF STATE FINANCIAL SUPPORT.....................  300.163.
 Reduction of funds for failure to         300.163(b).
 maintain support.
 Subsequent years (Regarding a waiver)...  300.163(d).
 Waivers: Exceptional or uncontrollable    300.163(c).
 circumstances.
 
MANIFESTATION DETERMINATION (See ``Discipline'')...........  300.530(e).
 
McKINNEY-VENTO HOMELESS ASSISTANCE ACT
 In definition of ``Homeless children''..  300.19.
 In filing a State complaint.............  300.153(b)(4)(iii).
 SEA responsibility for general            300.149(a)(3).
 supervision (Regarding homeless children).
 State advisory panel (Membership).......  300.168(a)(5).
 Surrogate parents (Homeless child's       300.519(a)(4).
 rights protected.
 
MEDIATION (A-O)
 Benefits of (Meeting to explain)........  300.506(b)(2)(ii).
 Confidential discussions................  300.506(b)(6)(i).
 Cost of (Borne by State)................  300.506(b)(4).
 Disinterested party (To meet with         300.506(b)(2).
 parents and schools.
 Disputes (Resolve through mediation)....  300.506(a).
 Legally binding agreement...............  300.506(b)(6).
 Mediation procedures (By public agency    300.506(a).
 to allow parties to resolve disputes).
 Mediators:..............................
    [Omicron] Impartiality of..............................  300.506(c).
    [Omicron] List of......................................  300.506(b)(3)(i).
    [Omicron] Qualified and impartial (see Sec.
     300.506(b)(1)(iii)).
 Meeting to explain benefits of..........  300.506(b)(2)(ii).
 Not used as evidence in hearing.........  300.506(b)(8).
 Not used to deny/delay right to hearing.  300.506(b)(1)(ii),
 Opportunity to meet.....................  30.506(b)(2).
 
MEDIATION (P-Z)
 Parent training and information center..  300.506(b)(2)(i).
 Procedural safeguards notice............  300.504(c)(6).
 Random selection of mediators...........  300.506(b)(3)(ii).
 Use of SEA allocations to establish.....  300.704(b)(3)(ii).
 Voluntary...............................  300.506(b)(1)(i).
 Written mediation agreement.............  300.506(b)(7).
 
MEDICAID
 Children covered by public benefits or    300.154(d)(1).
 insurance.
 Construction (Nothing alters              300.154(h).
 requirements imposed under Titles XIX or XXI).
 Financial responsibility of each non-     300.154(a)(1).
 educational public agency (e.g., State Medicaid).
 LEA high cost fund (Disbursements not     300.704(c)(8).
 medical assistance under State Medicaid).
 Medicaid reimbursement not disqualified   300.154(b)(1)(ii).
 because service in school context.
 Methods of ensuring services (see Sec.
 300.154(a)(1), (b)(1)(ii), (d), (g)(2), (h)).
 Proceeds from public or private           300.154(g)(1).
 insurance.
 Public agency may use Medicaid..........  300.154(a)(1).
 State Medicaid, etc., must precede        300.154(a)(1).
 financial responsibility of LEA.
 
MEDICAL (A-L)
 Assistance under other Federal programs.  300.186.

[[Page 147]]

 
 Assistive technology device (Does not     300.5.
 include a surgically implanted medical device).
 LEA high cost fund (Disbursements not     300.704(c)(8).
 medical assistance under State Medicaid).
 
MEDICAL (M-Q)
 Medical services in (``Related
 services''):
    [Omicron] Audiology (Referral for).....................  300.34(c)(1)(ii).
    [Omicron] Definition of................................  300.34(c)(5).
    [Omicron] For diagnostic purposes......................  300.34(a).
    [Omicron] Speech-language pathology (Referral for).....  300.34(c)(15)(iii).
 Medical supplies, etc. (Memo of           300.708(i)(2).
 agreement between HHS and Interior).
 Non-medical (Residential placement).....  300.104.
 
MEDICAL (R-Z)
 Referral for medical services:
    [Omicron] Audiology....................................  300.34(c)(1)(ii).
    [Omicron] Speech-language pathology services...........  300.34(c)(15)(iii).
 Related services: Exception; surgically   300.34(b).
 implanted devices (``Cochlear implants'').
 Routine checking of hearing aids and      300.113.
 other devices.
 SLD: Educationally relevant medical       300.311(a)(4).
 findings, if any.
 
MEDICATION
 Prohibition on mandatory medication.....  300.174.
 
MEETING(S)
 Alternative means of meeting              300.328.
 participation.
 Consolidation of IEP Team meetings......  300.324(a)(5).
 Equitable services determined             300.137.
 (Parentally-placed private school CWDs).
 IEP Team meetings (See ``IEP'').
 Mediation (Opportunity to meet).........  300.506(b)(2).
 Opportunity to examine records;           300.501.
 participation in IEP Team meetings.
 Parent participation in meetings (see
 Sec. 300.506(b)(2), (b)(4)).
 Private school placements by public       300.325.
 agencies.
 Reviewing and revising IEPs (Private      300.325(b).
 school placements).
 Services plan for private school          300.137(c)(1).
 children (Meetings).
 
MENTAL RETARDATION (Definition)............................  300.8(c)(6).
 
METHODS OF ENSURING SERVICES...............................  300.154.
 
MIGRANT CHILDREN
 Child find..............................  300.111(c)(2).
 Records regarding migratory children      300.213.
 (Linkage with ESEA).
 
MINIMUM STATE COMPLAINT PROCEDURES.........................  300.152.
 See ``Complaints,'' ``State complaint
 procedures''.
 
MONITOR; MONITORING ACTIVITIES (A-N)
 Allowable costs for monitoring..........  300.704(b)(3)(i).
 Children placed in private schools by     300.147(a).
 public agencies.
 Implementation by SEA...................  300.147(a).
 LRE (SEA monitoring activities).........  300.120.
 Monitoring activities (LRE).............  300.120.
 Monitoring--Enforcement (Subpart F).....  300.600.
    [Omicron] Rule of construction (Use any authority under  300.609.
     GEPA to monitor).
    [Omicron] Secretary's review and determination           300.603(b)(1).
     regarding State performance.

[[Page 148]]

 
    [Omicron] State exercise of general supervision........  300.600(d)(2).
    [Omicron] State use of targets and reporting...........  300.602(a), (b)(1).
 
MONITOR; MONITORING ACTIVITIES (O-Z)
 Outlying areas, etc. (see Sec.
 300.701(a)(1)(ii)).
 Private school children: SEA monitoring.  300.147(a).
 SEA responsibility for general            300.149(b).
 supervision.
 Secretary of the Interior...............  300.708.
 State advisory panel functions (Advise    300.169(d).
 SEA on corrective action plans).
 Use of SEA allocations for monitoring...  300.704(b)(3)(i).
 Waiver (State's procedures for            300.164(c)(2)(ii)(B).
 monitoring).
    [Omicron] Summary of monitoring reports................  300.164(c)(3).
 
MULTIPLE DISABILITIES (Definition).........................  300.8(c)(7).
 
NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER (NIMAC).....  300.172(e)(1)(ii).
 
NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARDS     300.172(e)(1)(iii).
 (NIMAS).
 See also Appendix C.
 
NATIVE LANGUAGE
 Confidentiality (Notice to parents).....  300.612(a)(1).
 Definition..............................  300.29.
 Definition of ``Consent''...............  300.9.
 Evaluation procedures (Tests in native    300.304(c)(1)(ii).
 language).
 Notice to parents: Confidentiality (In    300.612(a)(1).
 native language).
 Prior notice:
    [Omicron] Notice in native language....................  300.503(c)(1)(ii).
    [Omicron] Notice translated orally.....................  300.503(c)(2)(i).
    [Omicron] Steps if not a written language..............  300.503(c)(2).
 
NATURE/LOCATION OF SERVICES (Direct services by SEA).......  300.227.
 
NEPHRITIS (In ``Other health impairment'').................  300.8(c)(9)(i).
 
NIMAC (See ``National Instructional Materials Access
 Center'')
 
NIMAS (See ``National Instructional Materials Accessibility
 Standard'')
 
NONACADEMIC
 Activities: Participate in (IEP content)  300.320(a)(4)(ii).
 Services and extracurricular activities   300.107(a).
 (Equal opportunity to participate in).
 Settings................................  300.117.
 
NONCOMMINGLING.............................................  300.162(b).
 
NONDISABLED (Children; students) (A-P)
 At no cost (In definition of ``special    300.39(b)(1).
 education'').
 Disciplinary information................  300.229(a).
 Excess cost requirement.................  300.202(b).
 IEP (definition) (see Sec.
 300.320(a)(1)(i), (a)(4)(iii), (a)(5)).
 LRE (General requirement)...............  300.114.
 Nonacademic settings....................  300.117.
 Placement...............................  300.116.
 Program options.........................  300.110.
 
NONDISABLED (Children; students) (R-Z)
 Regular physical education..............  300.108(b).
 Services and aids that also benefit       300.208(a)(1).
 nondisabled children.
 Special education (Definition: In         300.39(b)(1).
 definition of ``at no cost'').

[[Page 149]]

 
 Supplementary aids and services.........  300.42.
 Suspension and expulsion rates..........  300.170(a)(2).
 
NONEDUCATIONAL (Public agency)
 Medicaid service (May not be              300.154(b)(1)(ii).
 disqualified because in school context).
 Methods of ensuring services (see Sec.
 300.154(a), (b))
 Obligation of...........................  300.154(b).
 Reimbursement for services by...........  300.154(b)(2).
 
NON-MEDICAL CARE (Residential placement)...................  300.104.
 
NONSUPPLANTING
 Excess cost requirement (Regarding        300.202(b)(1)(ii).
 children aged 3 through 5 and 18 through 21).
 LEA nonsupplanting......................  300.202(b)(1)(ii).
 SEA flexibility.........................  300.230(a).
 State-level activities (Inapplicability   300.704(d).
 of certain provisions).
 State-level nonsupplanting..............  300.162(c).
 Waiver of requirement...................  300.164.
 
NOTICES: By parents or parties
 Attorneys' fees: When court reduces fee   300.517(c)(4)(iv).
 award regarding due process request notice.
 Children enrolled by parents in private   300.148(d)(1)(i).
 schools when FAPE is at issue.
 Due process complaint (Notice before a    300.508(c).
 hearing on a complaint).
 Private school placement by parents       300.148(d)(1)(i).
 (When FAPE is at issue).
 
NOTICES: Public agency (A-M)
 By-pass (Judicial review)...............  300.197.
 Children's rights (Transfer of rights)..  300.625(c).
 Confidentiality (Notice to parents).....  300.612.
 Department procedures (Notice to States)  300.179.
    [Omicron] See ``Judicial review''......................  300.184.
 Discipline (Notification)...............  300.530(h).
 Exception to FAPE (Graduation)..........  300.102(a)(3).
 Hearings relating to LEA eligibility....  300.155.
 IEP meetings (Parent participation).....  300.322(b).
 Judicial review: If State dissatisfied    300.184.
 with eligibility determination.
 LEA and State agency compliance.........  300.222.
    [Omicron] Notification in case of ineligibility........  300.221(b).
 
NOTICES: Public agency (N-P)
 Notice before a hearing on a due process  300.508(c).
 complaint.
 Notice and hearing before State           300.179.
 ineligible.
 Notice in understandable language.......  300.503(c).
 Notification of LEA in case of            300.221(b).
 ineligibility.
 Parent participation in meetings........  300.501(b)(2).
 Prior notice by public agency...........  300.503.
 Private school placement by parents when  300.148(d)(2).
 FAPE is at issue (Public agency notice).
 Procedural safeguards notice............  300.504.
 Public attention........................  300.606.
 Public participation (Notice of           300.165(a).
 hearings).
 
NOTICES: Public agency (Q-Z)
 Secretary of the Interior (Submission of  300.708(g).
 information).
 Secretary's review and determination of   300.603(b)(2).
 State performance.
 Transfer of parental rights.............  300.520(a)(1)(i).

[[Page 150]]

 
 Use of electronic mail..................  300.505.
 Withholding funds.......................  300.605.
 
OCCUPATIONAL THERAPY.......................................  300.34(c)(6).
 
OPPORTUNITY TO EXAMINE RECORDS.............................  300.501.
 
ORIENTATION AND MOBILITY SERVICES..........................  300.34(c)(7).
 
ORTHOPEDIC IMPAIRMENT......................................  300.8(c)(8).
 
OTHER HEALTH IMPAIRMENT....................................  300.8(c)(9).
 
OTHER INDIVIDUALS ON IEP TEAM..............................  300.321(a)(6).
 
OUTLYING AREAS--FREELY ASSOCIATED STATES
 Allocations to States (General).........  300.703(a).
 Annual description of use of funds......  300.171(c).
 Definitions applicable to allotments,
 grants and use of funds:
    [Omicron] Freely associated States.....................  300.717(a).
    [Omicron] Outlying areas...............................  300.717(b).
 Definition of ``State'' (Includes         300.40.
 ``Outlying areas'').
 Outlying areas and freely associated      300.701.
 States.
 Purpose of grants.......................  300.700(a).
 
OUT-OF-POCKET EXPENSE (Public benefits or insurance).......  300.154(d)(2)(ii).
 
PARAPROFESSIONALS
In ``Personnel qualifications''............................  300.156(b).
PARENT (Definition)........................................  300.30.
PARENT: RIGHTS AND PROTECTIONS (A-G)
 Appeal (Manifestation determination)....  300.532.
 Confidentiality (Authority to inspect     300.613(c).
 and review records).
 Consent (See ``Consent'')
 Counseling and training (Definition)....  300.34(c)(8).
 Definition of ``Parent''................  300.30.
    [Omicron] Foster parent................................  300.30(a)(2).
    [Omicron] Grandparent or stepparent....................  300.30(a)(4).
    [Omicron] Guardian.....................................  300.30(a)(3).
 
PARENT: RIGHTS AND PROTECTIONS (H-N)
 Independent educational evaluation......  300.502.
    [Omicron] Parent-initiated evaluations.................  300.502(c).
    [Omicron] Parent right to evaluation at public expense.  300.502(b).
 IEP and parent involvement:
    [Omicron] Copy of child's IEP..........................  300.322(f).
    [Omicron] Informed of child's progress.................  300.320(a)(3)(ii).
    [Omicron] Option to invite other individuals...........  300.321(a)(6).
    [Omicron] Participation in meetings....................  300.322.
    [Omicron] Team member..................................  300.321(a)(1).
 Informed consent (Accessing private       300.154(e)(1).
 insurance).
 Involvement in placement decisions......  300.501(c).
 Meetings (Participation in).............  300.501(b).
 Notice to public agency:
    [Omicron] Before a hearing on a due process complaint..  300.508(c).
    [Omicron] Before removing child from public school.....  300.148(d)(1)(ii).
    [Omicron] Timeline for requesting a hearing............  300.511(e).
         Exceptions to timeline..........  300.511(f).
    [Omicron] Opportunity to examine records...............  300.501(a).
 
PARENT: RIGHTS AND PROTECTIONS (O-Z)
 Parent counseling and training..........  300.34(c)(8).
 Placement decisions (Involvement in)....  300.501(c).
 Request for hearing (Discipline)........  300.532(a).
 Right to an independent educational       300.502(b).
 evaluation.
 

[[Page 151]]

 
PARENTAL CONSENT (See ``Consent'')
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (A-E)
 Annual count of the number of...........  300.133(c).
 Bypass (see Sec. Sec. 300.190 through
 300.198)
 Child find for..........................  300.131.
 Calculating proportionate amount........  300.133(b).
 Compliance..............................  300.136.
 Consultation with private schools.......  300.134.
 Written affirmation.....................  300.135.
 Definition of...........................  300.130.
 Due process complaints and State          300.140.
 complaints.
 Equitable services determined...........  300.137.
    [Omicron] Equitable services provided..................  300.138.
 Expenditures............................  300.133.
    [Omicron] Formula......................................  300.133(a).
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (F-R)
 No individual right to special education  300.137(a).
 and related services.
 Property, equipment, and supplies.......  300.144.
 Proportionate share of funds............  300.134(b).
    [Omicron] See ``Appendix B--Proportionate Share
     Calculation''
 Provision of equitable services.........  300.138(c).
 Religious schools (see Sec. Sec.
 300.131(a), 300.137(c), 300.139(a))
 Requirement that funds not benefit a      300.141.
 private school.
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (S-T)
 Separate classes prohibited.............  300.143.
 Services on private school premises.....  300.139(a).
 Services plan (Definition)..............  300.37.
    [Omicron] For each child served under Sec. Sec. 300.137(c).
     300.130 through 300.144.
    [Omicron] See also Sec. Sec. 300.132(b), 300.138(b),
     300.140(a)
 State eligibility requirement...........  300.129.
 Transportation (Cost of)................  300.139(b)(2).
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (U-Z)
 Use of personnel:
    [Omicron] Private school personnel.....................  300.142(b).
    [Omicron] Public school personnel......................  300.142(a).
 Written affirmation.....................  300.135.
 Written explanation by LEA regarding      300.134(e).
 services.
 
PARTICIPATING AGENCY
 Confidentiality provisions:
    [Omicron] Definition of participating agency...........  300.611(c).
    [Omicron] See also Sec. Sec. 300.613(c), 300.614,
     300.616, 300.618, 300.623
 IEP requirements (Transition services)..  300.324(c).
 
PENDENCY (Stay put)
 Child's status during due process         300.518.
 proceedings.
 Placement during appeals (Discipline)...  300.533.
 Procedural safeguards notice............  300.504(c)(7).
 
PERFORMANCE GOALS AND INDICATORS
 Assess progress toward achieving goals..  300.157(c).
 Establishment of goals..................  300.157.
 Other State level activities............  300.814(c).
 Performance goals and indicators........  300.157.

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 State monitoring and enforcement........  300.600(c).
 State performance plans and data          300.601.
 collection.
 
PERFORMANCE; PERFORMANCE PLANS (STATE)
 Enforcement.............................  300.604.
 Public reporting and privacy............  300.602(b).
 Secretary's review and determination      300.603.
 regarding State performance.
 State performance plans and data          300.601.
 collection.
 State performance report................  300.602(b)(2).
 State use of targets and reporting......  300.602.
    [Omicron] Public reporting.............................  300.602(b)(1).
    [Omicron] State performance report.....................  300.602(b)(2).
 
PERMISSIVE USE OF FUNDS (LEAs)
 Administrative case management..........  300.208(b).
 Early intervening services..............  300.208(a)(2).
 High cost education and related services  300.208(a)(3).
 Permissive use of funds.................  300.208.
 Services and aids that also benefit       300.208(a)(1).
 nondisabled children.
PERSONALLY IDENTIFIABLE (PI) INFORMATION (A-H)
 Confidentiality of (State eligibility     300.123.
 requirement).
 Consent (confidentiality)...............  300.622(a).
 Data collection (State performance        300.601(b)(3).
 plans).
 Definition of ``personally                300.32.
 identifiable''.
 Department use of information...........  300.627.
 Destruction:
    [Omicron] Definition of................................  300.611(a).
    [Omicron] Destruction of information...................  300.624.
 Hearing decisions to advisory panel and   300.513(d).
 the public.
 
PERSONALLY IDENTIFIABLE (PI) INFORMATION (I-Z)
 Notice to parents (Confidentiality):
    [Omicron] Children on whom PI information is maintained  300.612(a)(2).
    [Omicron] Policies and procedures regarding disclosure   300.612(a)(3).
     to third parties, etc.
 Participating agency (Definition).......  300.611(c).
 Protection of PI information............  300.642(a).
 See also Sec. 300.610.................
 Safeguards (Protect PI information).....  300.623.
 
PERSONNEL QUALIFICATIONS...................................  300.156.
 
PERSONNEL SHORTAGES
 Use of SEA allocations to meet..........  300.704(b)(4)(vii).
 
PHYSICAL EDUCATION.........................................
 Definition..............................  300.39(b)(2).
 State eligibility requirement...........  300.108.
 
PHYSICAL THERAPY (Definition)..............................  300.34(c)(9).
 
PLACEMENT(S) (A-Co)
 Adult prisons (CWDs in):
    [Omicron] Last educational placement before              300.102(a)(2)(i).
     incarceration.
    [Omicron] Modifications to IEPs and placements.........  300.324(d)(2).
 Alternative means of meeting              300.328.
 participation (Regarding ``Placement meetings'').
 Change in placement: Graduation.........  300.102(a)(3)(iii).
 Child's placement during pendency of any  300.504(c)(7).
 complaint.
    [Omicron] See also ``Pendency'' (Child's status during   300.518.
     proceedings).

[[Page 153]]

 
 Children with disabilities in adult
 prisons: Placements regarding (see Sec. Sec.
 300.102(a)(2)(i), 300.324(d)(2)).
 Continuum of alternative placements       300.115.
 (Continuum--LRE).
 
PLACEMENT(S) (Cu-L)
 Current placement (see Sec.
 300.530(b)((2), (d) )
 Current ``Educational placement:''
    [Omicron] Change of placements because of disciplinary   300.536.
     removals.
    [Omicron] Child's status during proceedings............  300.518(a).
 Disciplinary changes in placement.......  300.530(c).
 Discipline procedures and placements
 (see Sec. Sec. 300.530 through 300.536).
 Educational placements (Parents in any    300.327.
 group that makes placement decisions).
 Graduation: A change in placement         300.102(a)(3)(iii).
 (Exception to FAPE).
 Last educational placement (Before        300.102(a)(2)(i).
 incarceration).
 Least restrictive environment (LRE) (see
 Sec. Sec. 300.114 through 300.120)
 Notification: LEA must notify parents of  300.530(h).
 decision to change placement.
 
PLACEMENT(S) (O-Z)
 Pendency (Child's status during           300.518.
 proceedings).
Placement of children by parents if FAPE is at issue.......  300.148.
 Placements (LRE)........................  300.116.
 Requirements for unilateral placement by  300.504(c)(9).
 parents of CWDs in private schools (In ``Procedural
 safeguards notice'').
 State funding mechanism (Must not result  300.114(b)(1).
 in placements that violate LRE).
 
POLICY: POLICIES AND PROCEDURES
 Condition of assistance (LEA              300.200.
 eligibility).
    [Omicron] Consistency with State policies..............  300.201.
    [Omicron] See also Sec. Sec. 300.200 through 300.213
 Eligibility for assistance (State)......  300.100.
 Exception for prior policies on file:
    [Omicron] With the SEA.................................  300.220.
    [Omicron] With the Secretary...........................  300.176(a).
 FAPE policy.............................  300.101(a).
 Joint establishment of eligibility        300.223.
 (Requirements).
 Modifications of:
    [Omicron] LEA or State agency policies.................  300.220(b).
    [Omicron] Required by Secretary........................  300.176(c).
    [Omicron] State policies (By a State)..................  300.176(b).
 Public participation....................  300.165.
 Secretary of the Interior...............  300.708.
    [Omicron] Public participation.........................  300.709.
    [Omicron] Submission of information....................  300.708.
 
PREPONDERANCE OF EVIDENCE
 Civil action............................  300.516(c)(3).
 
PRESCHOOL GRANTS
 Allocations to LEAs.....................  300.816.
    [Omicron] Subgrants to LEAs............................  300.815.
 Other State-level activities............  300.814.
    [Omicron] Provide early intervention services in         300.814(e).
     accordance with Part C of the Act.
    [Omicron] Service coordination or case management......  300.814(f).

[[Page 154]]

 
 State administration....................  300.813.
 Use of funds for administration of Part   300.813(b).
 C.
 
PRIOR NOTICE
 By public agency........................  300.503.
 Notice required before a hearing on a     300.508(c).
 due process complaint.
 Procedural safeguards notice............  300.504.
 
PRISONS (See ``Adult prisons'')
 
PRIVATE INSURANCE
 Children with disabilities who are        300.154(e).
 covered by.
    [Omicron] Proceeds from public benefits or insurance or  300.154(g).
     private insurance.
    [Omicron] Use of Part B funds..........................  300.154(f).
 
PRIVATE SCHOOLS AND FACILITIES
 Applicability of this part to State and
 local agencies:
    [Omicron] CWDs placed in private schools by parents      300.2(c)(2).
     under Sec. 300.148.
    [Omicron] CWDs referred to or placed in private schools  300.2(c)(1).
     by public agency.
 
PRIVATE SCHOOL CHILDREN ENROLLED BY THEIR PARENTS
 Placement of children by parents when     300.148.
 FAPE is at issue.
 See ``Parentally-placed private school
 children with disabilities''
 
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (A-D)
 Applicability of this part to private     300.2(c)(1).
 schools.
 Applicable standards (SEA to disseminate  300.147(b).
 to private schools involved).
 
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (E-Z)
 Implementation by SEA (Must monitor,      300.147.
 provide standards, etc.).
 Monitor compliance......................  300.147(a).
 Input by private schools (Provide for)..  300.147(c).
 Responsibility of SEA...................  300.146.
 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (A-C)
 Additional disclosure of information (5   300.512(b).
 business days before hearing).
 Agency responsible for conducting         300.511(b).
 hearing.
 Appeal of hearing decisions; impartial    300.514(b).
 review.
 Attorneys' fees.........................  300.517.
 Child's status during proceedings.......  300.518.
 Civil action............................  300.516.
 Consent (Definition)....................  300.9.
 Court (See ``Court(s)'')
 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (D-H)
 Electronic mail (Parent may elect to      300.505.
 receive notices by).
 Evaluation (Definition).................  300.15.
 Evaluations: Hearing officer requests     300.502(d).
 for.
 Finality of decision; appeal; impartial   300.514.
 review.
 Findings and decision to advisory panel   300.513(d).
 and public.
 Hearing rights..........................  300.512.
 

[[Page 155]]

 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (I-Pa)
 Impartial due process hearing...........  300.511.
 Impartial hearing officer...............  300.511(c).
 Impartiality of mediator................  300.506(c).
 Independent educational evaluation......  300.502.
    [Omicron] Definition...................................  300.502(a)(3)(i).
 Jurisdiction of district courts.........  300.516(d).
    [Omicron] See ``Court(s)''
 Mediation...............................  300.506.
    [Omicron] Opportunity to meet with a disinterested       300.506(b)(2).
     party.
 Model form to assist parties in filing a  300.509.
 due process or State complaint.
 Notice required before a hearing on a     300.508(c).
 due process complaint.
 Opportunity to examine records..........  300.501(a).
 Parental consent........................  300.300.
 Parent-initiated evaluations............  300.502(c).
 Parent involvement in placement           300.501(c).
 decisions.
 Parent participation in meetings........  300.501(b).
 Parental rights at hearings.............  300.512(c).
 Parent right to evaluation at public      300.502(b).
 expense.
    [Omicron] Public expense (Definition)..................  300.502(a)(3)(ii).
 
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (Pe-Z)
 Pendency................................  300.518.
 Personally identifiable (Definition)....  300.32.
 Prior notice by public agency...........  300.503.
 Procedural safeguards notice............  300.504.
 Prohibition on introduction of            300.512(a)(3).
 undisclosed evidence 5 business days before hearing.
 Record of hearing.......................  300.512(a)(4).
 Resolution process......................  300.510.
 SEA implementation of...................  300.150.
 See ``Civil Action Proceedings,''
 ``Court(s),'' ``Hearing Officer(s),'' ``Timelines''
 Surrogate parents.......................  300.519.
 Timelines and convenience of hearings...  300.515.
 Transfer of parental rights at age of     300.520.
 majority.
 
PROCEDURAL SAFEGUARDS NOTICE...............................  300.504.
 Internet Web site (Notice on)...........  300.504(b).
 
PROCEEDS FROM PUBLIC BENEFITS OR INSURANCE OR PRIVATE        300.154(g).
 INSURANCE.
 
PROGRAM INCOME (Not treated as proceeds from insurance)....  300.154(g.)
 
PROGRAM MODIFICATIONS OR SUPPORTS (IEP content)............  300.320(a)(4).
 
PROPORTIONATE SHARE CALCULATION (See Appendix B)
 
PROTECTIONS FOR CHILDREN NOT DETERMINED ELIGIBLE             300.534.
 (Discipline).
 
PSYCHOLOGICAL SERVICES (Definition)........................  300.34(c)(10).
 
PUBLIC AGENCY (Definition).................................  300.33.
 
PUBLIC BENEFITS OR INSURANCE...............................  300.154(d).
 
PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE (Proceeds  300.154(g).
 from).
 
PUBLIC CHARTER SCHOOLS (See ``Charter schools'')
 

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PUBLIC EXPENSE (Definition under IEE)......................  300.502(a)(3)(ii).
 
PUBLIC HEARINGS (On policies)
 State eligibility.......................  300.165(a).
 Secretary of the Interior...............  300.708(g).
 
PUBLIC INFORMATION (LEA)...................................  300.212.
 
PUBLIC NOTICE
 LEA and State agency compliance.........  300.222(b).
 Public attention (If State has received   300.606.
 a notice under Sec. 300.603).
 
PURPOSES (Of this Part 300)................................  300.1.
 
QUALIFIED PERSONNEL........................................  300.156.
 Related services definitions (see Sec.
 300.34(c)(2), (c)(5), (c)(6), (c)(7), (c)(9), (c)(12),
 (c)(13)).
 
RATE OF INFLATION (In the Consumer Price Index for All
 Urban Consumers) (see Sec. Sec. 300.702(b),
 300.704(a)(2)(ii), 300.704(b)(2), 300.812(b)(2)).
REALLOCATION OF LEA FUNDS (If SEA determines LEA adequately
 providing FAPE) (see Sec. Sec. 300.705(c), 300.817)).
 
RECORDS (A-D)
 Access rights (Parents' right to          300.613.
 inspect).
    [Omicron] Fees for records.............................  300.617.
    [Omicron] Records on more than one child...............  300.615.
 Civil action (Court shall receive         300.516(c)(1).
 records).
 Conducting IEP Team meetings without      300.322(d).
 parents (Records of attempts to convince parents).
Confidentiality (See ``Confidentiality'')
 Consent to release records..............  300.622(b).
Disciplinary records:
    [Omicron] Determination that behavior not manifestation  300.530(e).
    [Omicron] Disciplinary information.....................  300.229(c).
    [Omicron] Referral to and action by law enforcement and  300.535.
     judicial authorities.
 
RECORDS (E-Z)
 Education records (Definition)..........  300.611(b).
 Of parentally-placed private school CWDs  300.132(c).
 (LEA to SEA).
 Opportunity to examine records..........  300.501(a).
 Procedural safeguards notice (Access to   300.504(c)(4).
 education records).
 Record of access........................  300.614.
 See also ``Transfer during academic
 year''
 
RECREATION (Definition)....................................  300.34(c)(11).
 
REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT.........  300.163(b).
 
REEVALUATION
 Frequency of occurrence.................  300.303(b).
 Parental consent required before          300.300(c)(1).
 conducting.
    [Omicron] If parent fails to consent...................  300.300(c)(1)(ii).
 Parental consent not required for:
    [Omicron] Administering a test that all children take..  300.300(d)(1)(ii).
    [Omicron] Reviewing existing data......................  300.300(d)(1)(i).
 Parent refusal to consent...............  300.300(c)(1)(ii).
 Review of existing evaluation data......  300.305(a).
 Revision of IEP (To address               300.324(b)(1)(ii).
 reevaluation).
 
REFERRAL (A-M)
 Discipline:

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    [Omicron] Referral to and action by law enforcement and  300.535.
     judicial authorities.
    [Omicron] Protections for children not determined        300.534.
     eligible.
 Enforcement (Referral for)..............  300.604(b)(2)(vi).
 Indian children (Referral for services    300.712(d)(2).
 or further diagnosis).
 Medical attention (Referral for):
    [Omicron] Audiology....................................  300.34(c)(1)(ii).
    [Omicron] Speech-language pathology services...........  300.34(c)(15)(iii).
 
REFERRAL (N-Z)
 Nonacademic and extracurricular services  300.107(b).
 (Referral to agencies regarding assistance to individuals
 with disabilities).
 Prior notice (If not initial referral     300.503(b)(4).
 for evaluation).
 Private school placement when FAPE is at  300.148(c).
 issue (Reimbursement when no referral by public agency).
 Procedural safeguards notice (Upon        300.504(a)(1).
 initial referral for evaluation).
 Referral to and action by law             300.535.
 enforcement and judicial authorities.
 
REGULAR EDUCATION TEACHER
 Access to IEP...........................  300.323(d).
 IEP Team member.........................  300.321(a)(2).
 Participate in IEP development..........  300.324(a)(3).
    [Omicron] Behavioral interventions.....................  300.324(a)(3)(i).
    [Omicron] Supplementary aids and services..............  300.324(a)(3)(ii).
 
REGULATIONS
 Applicable regulations (Secretary of the  300.716.
 Interior).
 Applicability of this part to State,      300.2.
 local, and private agencies.
 
REHABILITATION
 Assistive technology service (see Sec.
 300.6(d), (f))
 Rehabilitation Act of 1973 (see Sec.
 Sec. 300.34(c)(12), 300.516(e))
 Rehabilitation counseling services:
    [Omicron] Definition...................................  300.34(c)(12).
    [Omicron] In vocational rehabilitation (VR) programs...  300.34(c)(12).
 Transition services (State VR agency      300.324(c)(2).
 responsibility).
 
REHABILITATION COUNSELING SERVICES.........................  300.34(c)(12).
 
REIMBURSEMENT
 Methods of ensuring services (see Sec.
 300.154(a)(3), (b)(1)(ii), (b)(2), (g)(2))
 Private school placement when FAPE is at
 issue:
    [Omicron] Limitation on reimbursement..................  300.148(d).
    [Omicron] Reimbursement for private school placement...  300.148(c).
    [Omicron] Subject to due process procedures............  300.148(b).
 Reimbursement by non-educational public   300.154(b)(2).
 agency.
 Reimbursement by SEA to LEA.............  300.704(c)(7).
 
RELATED SERVICES
 Definition..............................  300.34.
 Observations by teachers and related      300.305(a)(1)(iii).
 services providers regarding existing evaluation data.
 
RELATION OF PART B TO OTHER FEDERAL PROGRAMS...............  300.186.
 
RELIGIOUS SCHOOLS
 Child find for parentally-placed private  300.131(a).
 school children.

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 Child find for out-of-State children....  300.131(f).
 Formula for LEA expenditures on.........  300.133(a).
 See ``Parentally-placed private school
 children with disabilities''
 Services plan for each child served.....  300.137(c).
 Services provided on-site...............  300.139(a).
 
REMEDIES FOR DENIAL OF APPROPRIATE SERVICES................  300.151(b).
 
REPORTS (A-C)
 Annual report of children served........  300.640.
    [Omicron] See also Sec. Sec. 300.641 through 300.646
 Annual report to Secretary of Interior    300.715(a).
 by advisory board on Indian children.
 Biennial report (Indian tribes).........  300.712(e).
 Child count (Annual report of children    300.641.
 served).
 
REPORTS (D-Z)
 Evaluation reports to parents...........  300.306(a)(2).
 Monitoring compliance of publicly placed  300.147(a).
 children in private schools (e.g., written reports).
 Monitoring reports (Waiver of             300.164(c)(3).
 nonsupplanting requirement).
 Performance goals (Progress reports)....  300.157(c).
 Secretary's report to States regarding    300.812(b).
 25% of funds.
 
REPORT CARDS...............................................  300.320(a)(3)(ii).
 
REPORTING A CRIME to law enforcement and judicial            300.535.
 authorities.
 
RESIDENTIAL PLACEMENTS.....................................  300.104.
 
REVOKE CONSENT AT ANY TIME (In definition of ``Consent'')..  300.9(c)(1).
 
RHEUMATIC FEVER............................................  300.8(c)(9)(i).
 
RISK OF LOSS OF ELIGIBILITY FOR INSURANCE..................  300.154(d)(2)(iii)(D).
 
SCHOOL DAY
 Definition..............................  300.11(c).
 See ``Timelines,'' ``Timelines--
 Discipline''
 
SCHOOL HEALTH SERVICES AND SCHOOL NURSE SERVICES...........  300.34(c)(13).
 
SCHOOL PERSONNEL
 Content of IEP..........................  300.320(a)(4).
 Development, review, and revision of IEP  300.324(a)(4).
 Disciplinary authority..................  300.530.
 Use of private school personnel.........  300.142(b).
 Use of public school personnel..........  300.142(a).
 
SCHOOLWIDE PROGRAMS........................................  300.206.
 
SEA RESPONSIBILITY
 For all education programs..............  300.149.
 For direct services.....................  300.227.
 For each parentally-placed private        300.132(b).
 school child designated to receive services.
 For impartial review....................  300.514(b)(2).
 Prohibition of LEA from reducing          300.608.
 maintenance of effort.
 
SECRETARY
 Determination that a State is eligible..  300.178.
 Notice and hearing before determining     300.179.
 that a State is not eligible.
 Waiver of nonsupplanting requirement....  300.164.
 

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SECRETARY OF THE INTERIOR
 Advisory board establishment............  300.714.
    [Omicron] Annual report by advisory board..............  300.715.
 Biennial report (By tribe or tribal       300.712(e).
 organization).
 Eligibility (see Sec. Sec. 300.708
 through 300.716)
 Payments for:
    [Omicron] Children aged 3 through 5....................  300.712.
    [Omicron] Child find and screening.....................  300.712(d).
 Plan for coordination of services.......  300.713.
 Use of funds for early intervening        300.711.
 services.
 
SEPARATION--DIVORCE (Authority to review records)..........  300.613(c).
 
SERVICES PLAN for parentally-placed private school children
 (see Sec. Sec. 300.132(b), 300.137(c) 300.138(b))
 
SERVICES THAT ALSO BENEFIT NONDISABLED CHILDREN............  300.208(a)(1).
 
SHORTAGE OF PERSONNEL (Policy to address)..................  300.704(b)(4)(vii).
 
SHORT TERM OBJECTIVES OR BENCHMARKS........................  300.320(a)(2)(ii).
 
SHOULD HAVE KNOWN (Regarding due process complaint)........  300.511(e).
 
SHOW CAUSE HEARING.........................................  300.194.
 Decision................................  300.195.
 Implementation of by-pass (see Sec.
 Sec. 300.192(b)(2), 300.193)
 Right to legal counsel..................  300.194(a)(3).
 
SICKLE CELL ANEMIA.........................................  300.8(c)(9)(i).
 
SLD (See ``Specific Learning Disability'')
 
SOCIAL WORK SERVICES IN SCHOOLS (Definition)...............  300.34(b)(14).
 
SPECIAL FACTORS (IEP Team).................................  300.324(a)(2).
 
SPECIAL EDUCATION (Definition).............................  300.39.
 
SPECIAL EDUCATION PROVIDER.................................  300.321(a)(3).
 
SPECIAL EDUCATION TEACHER
 IEP accessible to.......................  300.323(d).
 On IEP Team.............................  300.321(a)(3).
 Requirements regarding highly qualified.  300.18.
 
SPECIAL RULE
 Adjustments to local efforts............  300.205(d).
 For child's eligibility determination...  300.306(b).
 For increasing funds....................  300.704(e).
 Methods of ensuring services............  300.154(c).
 LEA high cost fund......................  300.704(c).
 Regarding outlying areas and freely       300.701(a)(3).
 associated States.
 Regarding transfer of rights............  300.520(b).
 Regarding use of FY 1999 amount.........  300.703(b).
 State advisory panel (Parent members)...  300.168(b).
 
SPECIFIC LEARNING DISABILITY
 Definition..............................  300.8(c)(10).
 Evaluation requirements and report (see
 Sec. Sec. 300.306(a), 300.307 through 300.311)
 Other alternative research-based          300.307(a)(3).
 procedures.
 Response to scientific, research-based
 intervention (see Sec. Sec. 300.307(a)(2),
 300.309(a)(2)(i), 300.311(a)(7))
 Scientifically based research:
    [Omicron] Definition...................................  300.35.
    [Omicron] Enforcement..................................  300.604(a)(1)(ii).
 Severe discrepancy......................  300.307(a)(1).
 
SPEECH-LANGUAGE PATHOLOGY SERVICES
 Definition..............................  300.34(b)(15).

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 Speech or language impairment             300.8(c)(11).
 (Definition).
 
STATE
 Definition..............................  300.40.
 Special definition for grants...........  300.717(c).
 Sovereign immunity......................  300.177.
 
STATE ADMINISTRATION (Use of funds for) (see Sec. Sec.
 300.704(a), 300.812(a)).
 
STATE ADVISORY PANEL.......................................  300.167
 Due process hearings (Findings and
 decisions to State advisory panel) (see Sec. Sec.
 300.513(d)(1), 300.514(c)(1))
 Duties..................................  300.169.
 Establishment...........................  300.167.
 Membership..............................  300.168.
 Waiver of nonsupplant requirement (State  300.164(c)(4).
 has consulted with advisory panel regarding provision of
 FAPE).
 
STATE AGENCIES
 Applicability of Part B to other State    300.2(b)(1)(iii).
 agencies.
 Compliance (LEA and State agency).......  300.222.
 Eligibility (LEA and State agency):
    [Omicron] General conditions (see Sec. Sec. 300.200
     through 300.213)
 Notification of LEA or State agency in    300.221.
 case of ineligibility.
 State advisory panel (Membership).......  300.168.
 State agency eligibility................  300.228.
 State Medicaid agency...................  300.154(a)(1), (h).
 
STATE COMPLAINT PROCEDURES (see Sec. Sec. 300.151
 through 300.153)
 See ``Complaint(s): State complaint
 procedures''
 
STATE ELIGIBILITY
 Condition of assistance.................  300.100.
 Department procedures (see Sec. Sec.
 300.178 through 300.186)
 Determination of eligibility (By the      300.178.
 Secretary).
 General conditions......................  300.100.
 Notice and hearing before determining     300.179.
 that a State is not eligible.
 Specific conditions (see Sec. Sec.
 300.101 through 300.176)
 
STATE JUVENILE AND ADULT CORRECTIONAL FACILITIES...........  300.2(b)(1)(iv).
 See also ``Correctional facilities,''
 ``Adult prisons''
 
STATE-LEVEL ACTIVITIES (With Part B funds).................  300.704.
 
STATE-LEVEL NONSUPPLANTING.................................  300.162(c).
 Waiver by Secretary.....................  300.162(c)(2).
 Waiver of requirement...................  300.164.
 
STATE MAINTENANCE OF EFFORT................................  300.163.
 
SUBGRANT(S)
 State agency eligibility................  300.228.
 To LEAs.................................  300.705(a).
 
STATE MEDICAID AGENCY
 Methods of ensuring services............  300.154(a)(1).
 See also ``Medicaid''
 
STATE SCHOOLS
 Applicability of this part to schools     300.2(b)(1)(iii).
 for children with deafness or blindness.
 
STATE VOCATIONAL REHABILITATION AGENCY (See
 ``Rehabilitation'')
 

[[Page 161]]

 
STATES' SOVEREIGN IMMUNITY.................................  300.177.
 
STAY-PUT (Child's status during proceedings)...............  300.518.
 See also ``Pendency''
 
SUBSTANTIAL LIKELIHOOD OF INJURY (Discipline)..............  300.532(a).
 
SUPPLEMENTARY AIDS AND SERVICES
 Definition..............................  300.42.
 IEP content.............................  300.320(a)(4).
 In ``assistive technology''.............  300.105(a)(3).
 LRE requirements........................  300.114(a)(2)(ii).
 Methods of ensuring services............  300.154(b).
 Requirement regarding regular education   300.324(a)(3)(ii).
 teacher (IEP).
 Services that also benefit nondisabled    300.208(a)(1).
 children.
SUPPLEMENT--NOT SUPPLANT
 LEA requirement.........................  300.202(a)(3).
 State level nonsupplanting..............  300.162(c).
 See ``Nonsupplanting''
 
SUPPORT SERVICES (see Sec. Sec. 300.704(b)(4)(i)),
 300.814(a))
 
SURGICALLY IMPLANTED MEDICAL DEVICE (see Sec. Sec.
 300.5, 300.34(b), 300.113(b))
 
SURROGATE PARENTS..........................................  300.519.
 Appointed for homeless youth............  300.519(f).
 In definition of ``Parent''.............  300.30(a)(5).
 Timeline for assignment.................  300.519(h).
 
SUSPENSION (EXPULSION)
 Alternative programming for children      300.704(b)(4)(ix).
 expelled.
 Provision of FAPE.......................  300.101(a).
 Suspension and expulsion rates..........  300.170(a).
 Suspension or expulsion without services  300.534(d)(2)(ii).
 
TEACHERS
See ``Regular education teacher''
See ``Special education teacher''
TECHNICAL ASSISTANCE (Amounts to support)..................  300.702.
 
TECHNICALLY SOUND INSTRUMENTS (Evaluation).................  300.304(b)(3).
 
TERMINATION OF AGENCY OBLIGATION to provide special          300.204(c).
 education to a particular child (Exception to MOE).
 
THERAPEUTIC RECREATION.....................................  300.34(b)(11)(ii).
 
TIMELINES (A-D)
 Access rights (Confidentiality: 45 days)  300.613(a).
 Annual report of children served          300.641(a).
 (Between Oct. 1 and Dec. 1).
 Annual count of parentally-placed         300.133(c).
 private school children (Between Oct. 1 and Dec. 1).
 Assignment of surrogate parent (Not more  300.519(h).
 than 30 days).
 Attorneys' fees (10 days prohibition)...  300.517(c)(2)(i).
 Complaint procedures (State: 60 days)...  300.152(a).
 Department hearing procedures (30 days).  300.179(b)(3).
    [Omicron] See also Sec. Sec. 300.181 through 300.184
 Due process hearings and reviews (see
 Sec. Sec. 300.510(b)(2), 300.511(e), (f)):
    [Omicron] Conducted within 20 school days; decision      300.532(c)(2).
     within 10 school days.
    [Omicron] Decision within 45 days after expiration of    300.515(a).
     30 day period.

[[Page 162]]

 
    [Omicron] Disclose evaluations before hearings (5        300.512(a)(3).
     business days).
 
TIMELINES (E-H)
 Hearing procedures (State eligibility:    300.179(b)(3).
 30 days).
 Hearing rights:
    [Omicron] Disclosure of evaluations (At least 5          300.512(b)(1).
     business days before hearing).
    [Omicron] Prohibit introduction of evidence not          300.512(a)(3).
     disclosed (At least 5 business days before hearing).
    [Omicron] Reviews (Decision not later than 30 days)....  300.515(b).
 
TIMELINES (I-Z)
 IEP (Initial meeting: 30 days)..........  300.323(c)(1).
 Initial evaluation (60 days)............  300.301(c)(1).
 Parent notice before private placement    300.148(d)(2).
 (At least 10 business days).
 Show cause hearing......................  300.194(g).
 Decision................................  300.195(a)(1).
 State eligibility: Department hearing
 procedures (see Sec. Sec. 300.179(b)(3), 300.181(b),
 300.182(d), (e), (g), (k), 300.184)
 Timelines and convenience of hearings     300.515.
 and reviews.
 
TIMELINES--DISCIPLINE (A-P)
 Authority of hearing officer (May order   300.532(b)(2)(ii).
 change of placement for not more than 45 school days).
 Authority of school personnel:
    [Omicron] Change of placement for not more than 45       300.530(g).
     consecutive days for weapons or drugs.
    [Omicron] Removal of a child for not more than 10        300.530(b).
     school days.
 Change of placement for disciplinary
 removals:
    [Omicron] Of more than 10 consecutive school days......  300.536(a)(1).
    [Omicron] Because series of removals total more than 10  300.536(a)(2)(i).
     school days.
 Due process hearing request.............  300.507(a)(2).
 Expedited due process hearings:
    [Omicron] Conducted within 20 days.....................  300.532(c)(2).
    [Omicron] Decision within 10 days......................  300.532(c)(3)(i).
 Hearing officer (Order change of          300.532(b)(2)(ii).
 placement for not more than 45 days).
 Manifestation determination review        300.530(e).
 (Conducted in no more than 10 school days).
 Placement during appeals (Not longer      300.532(b)(2)(ii).
 than 45 days).
 
TIMELINES--DISCIPLINE (Q-Z)
 Removals for not more than:
    [Omicron] 10 school days (By school personnel).........  300.530(b).
    [Omicron] 45 days (To interim alternative educational    300.532(b)(2)(ii).
     setting).
        By hearing officer (For substantial likelihood of    300.532(b)(2)(ii).
         injury to child or others).
        By school personnel (For weapons or drugs) (see
         Sec. 300.530(g)(1), (g)(2))
 
TIMETABLE: Full educational opportunity goal (FEOG)........  300.109.
 
TRAINING
 Assistive technology services (see Sec.
  300.6(e), (f))
 Confidentiality procedures (Personnel     300.623(c).
 using personally identifiable information must receive
 training).
 Parent counseling and training..........  300.34(b)(8).

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 Technical assistance and training for     300.119.
 teachers and administrators.
 Travel training (see Sec.
 300.39(a)(2)(ii), (b)(4))
 
TRANSFER DURING ACADEMIC YEAR
 Assessments coordinated between public    300.304(c)(5).
 agencies.
 New school district responsibilities
 (see Sec. 300.323(e), (f))
 Transmittal of records..................  300.323(g).
 
TRANSFER OF PARENTAL RIGHTS................................  300.520.
 IEP requirement.........................  300.320(c).
 Special rule............................  300.520(b).
 To children in correctional institutions  300.520(a)(2).
 
TRANSITION FROM PART C TO PART B...........................  300.124.
 
TRANSITION SERVICES (NEEDS)
 Agency responsibilities for (see Sec.
 Sec. 300.321(b)(3), 300.324(c)(2))
 Alternative strategies..................  300.324(c)(1).
 Child participation in IEP Team meetings  300.321(b)(1).
 Definition..............................  300.43.
 IEP requirement (Statement of)
    [Omicron] Transition service needs.....................  300.320(b).
    [Omicron] Needed transition services...................  300.43(b).
 State rehabilitation agency.............  300.324(c)(2).
TRANSMITTAL OF RECORDS TO LAW ENFORCEMENT AND JUDICIAL       300.535(b).
 AUTHORITIES.
 
TRANSPORTATION
 Definition..............................  300.34(c)(16).
 Nonacademic services....................  300.107(b).
 Of private school children..............  300.139(b).
 
TRAUMATIC BRAIN INJURY (Definition)........................  300.8(c)(12).
 
TRAVEL TRAINING (see Sec. 300.39(a)(2)(ii), (b)(4))
 Definition..............................  300.39(b)(4).
 
TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS............  300.209.
 
TREATMENT OF FEDERAL FUNDS IN CERTAIN YEARS................  300.205.
 
UNIVERSAL DESIGN
 Definition..............................  300.44.
 Support technology with universal design  300.704(b)(4)(v).
 principles.
 
USE OF AMOUNTS (LEA).......................................  300.202.
 
USE OF FUNDS BY LEAs
 Coordinated services system.............  300.208(a)(2).
 For school-wide programs................  300.206.
 For services and aids that also benefit   300.208(a)(1).
 nondisabled children.
 For use in accordance with Part B.......  300.705.
 
USE OF FUNDS BY STATES (SEAs) (A-C)
 Administering Part B State activities...  300.704(a)(1).
 Administering Part C (If SEA is Lead      300.704(a)(4).
 Agency).
 Administrative costs of monitoring and    300.704(b)(3)(i).
 complaint investigations.
 Allowable costs.........................  300.704(b)(3).
 Amount for State administration.........  300.704(a)
 Annual description of use of Part B       300.171.
 funds.
 Assist LEAs in meeting personnel          300.704(b)(4)(vii).
 shortages.
 Complaint investigations................  300.704(b)(3)(i).
 Coordination of activities with other     300.704(b)(1).
 programs.
USE OF FUNDS BY STATES (SEAs) (D-Z)

[[Page 164]]

 
 Direct and support services.............  300.704(b)(4)(i).
 High cost fund..........................  300.704(c).
 Mediation process.......................  300.704(b)(3)(ii).
 Monitoring..............................  300.704(b)(3)(i).
 Personnel preparation, professional
 development and training (see Sec. 300.704(b)(4)(i),
 (b)(4)(xi)).
 State plan..............................  300.704(c)(3)(i).
 Statewide coordinated services system...  300.814(d).
 Support and direct services.............  300.704(b)(4)(i).
 Technical assistance:
    [Omicron] To LEAs......................................  300.704(b)(4)(xi).
    [Omicron] To other programs that provide services......  300.704(a)(1).
 
USE OF FUNDS BY SECRETARY OF THE INTERIOR (see Sec. Sec.
 300.707 through 300.716)
 By Indian tribes:
    [Omicron] For child find for children aged 3 throught 5  300.712(d).
    [Omicron] For coordination of assistance for services..  300.712(a).
 For administrative costs................  300.710(a).
 
USE OF SEA ALLOCATIONS.....................................  300.704.
 Inapplicability of requirements that      300.704(d).
 prohibit commingling and supplanting of funds.
 
VISUAL IMPAIRMENT INCLUDING BLINDNESS (Definition).........  300.8(c)(13).
 
VOCATIONAL EDUCATION
 Definition..............................  300.39(b)(5).
 In definition of ``Special education''..  300.39(a)(2)(iii).
 Program options.........................  300.110.
 Transition services.....................  300.320(b)(1).
 
VOCATIONAL REHABILITATION (See ``Rehabilitation'')
 
VOLUNTARY DEPARTURE OF PERSONNEL
(Exception to LEA maintenance of effort)...................  300.204(a).
 
WAIVER(S)
 For exceptional and uncontrollable        300.163(c).
 circumstances (State maintenance of effort).
 ``In whole or in part''.................  300.164(e).
 Public benefits or insurance (Risk of     300.154(d)(2)(iii)(D).
 loss of eligibility for home and community-based waivers).
 State-level nonsupplanting..............  300.162(c).
 State maintenance of effort.............  300.163.
 State's procedures for monitoring.......  300.164(c)(2)(ii)(B).
 Waiver procedures.......................  300.164.
 
WARD OF THE STATE
 Appointment of surrogate parent.........  300.519(c).
 Definition..............................  300.45.
 See definition of ``Parent''............  300.30(a)(3).
 See ``Surrogate parents''...............  300.519(a)(3).
 
WEAPON (Definition)........................................  300.530(i)(4).
 
WHEN IEPS MUST BE IN EFFECT................................  300.323.
 


[[Page 165]]


[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]



PART 303_EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH
DISABILITIES

                            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 Services 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 nondiscriminatory procedures.
303.167 Individualized family service plans.
303.168 Comprehensive system of personnel development (CSPD).
303.169 Personnel standards.
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.

[[Page 166]]

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 Nondiscriminatory 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.

                  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.

[[Page 167]]

                            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 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);

[[Page 168]]

    (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): 
Sec. Sec. 300.560-300.577, and Sec. Sec. 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 Sec. Sec. 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))


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

[[Page 169]]

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 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

[[Page 170]]

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;
    (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

[[Page 171]]

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.
    (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]

[[Page 172]]


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
    (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

[[Page 173]]

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 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,

[[Page 174]]

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;
    (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))

[[Page 175]]

    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 Sec. Sec. 303.140 through 303.148; 
and
    (ii) The information required in Sec. Sec. 303.161 through 303.176; 
and
    (2) The statement of assurances required under Sec. Sec. 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 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

[[Page 176]]

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, 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 Sec. Sec. 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 Sec. Sec. 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

[[Page 177]]

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 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--

[[Page 178]]

    (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 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

[[Page 179]]

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 
Sec. Sec. 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))


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

[[Page 180]]

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 Sec. Sec. 
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]


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

[[Page 181]]

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 Sec. Sec. 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 Sec. Sec. 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))


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 Sec. Sec. 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 Sec. Sec. 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]

[[Page 182]]


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 Sec. Sec. 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 Sec. Sec. 
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 Sec. Sec. 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 (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

[[Page 183]]

    (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]

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

[[Page 184]]

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;
    (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.

[[Page 185]]

    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 Sec. Sec. 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--
    (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.

[[Page 186]]

    (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 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

[[Page 187]]

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 Sec. Sec. 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 Sec. Sec. 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)
    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.

[[Page 188]]

    (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.
    (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,

[[Page 189]]

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 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--

[[Page 190]]

    (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 Sec. Sec. 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 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.

[[Page 191]]

    (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
    (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

[[Page 192]]

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, 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

[[Page 193]]

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))


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 Sec. Sec. 
303.401-303.460 of this part; and
    (4) The State complaint procedures under Sec. Sec. 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

[[Page 194]]

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.
    (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.

[[Page 195]]

    (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.
    (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 Sec. Sec. 303.421 
through 303.425; and

[[Page 196]]

    (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 
Sec. Sec. 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 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

[[Page 197]]

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).
    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

[[Page 198]]

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 Sec. Sec. 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.
    (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;

[[Page 199]]

    (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--
    (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.

[[Page 200]]

    (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 Sec. Sec. 303.22 and 
303.344(g).
    (4) Administrative and coordinative activities related to--
    (i) The development, review, and evaluation of IFSPs in Sec. Sec. 
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
    (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

[[Page 201]]

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 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

[[Page 202]]

    (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]


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;

[[Page 203]]

    (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
    (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

[[Page 204]]

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--
    (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

[[Page 205]]

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_SERVICE OBLIGATIONS UNDER SPECIAL EDUCATION_PERSONNEL 
DEVELOPMENT TO IMPROVE SERVICES AND RESULTS FOR CHILDREN WITH 

DISABILITIES

                            Subpart A_General

Sec.
304.1 Purpose.
304.3 Definitions.

            Subpart B_Conditions That Must Be Met by Grantee

304.21 Allowable costs.
304.22 Requirements for grantees in disbursing scholarships.
304.23 Assurances that must be provided by grantee.

            Subpart C_Conditions That Must Be Met by Scholar

304.30 Requirements for scholar.
304.31 Requirements for obtaining an exception or deferral to 
          performance or repayment under an agreement.

    Authority: 20 U.S.C. 1462(h), unless otherwise noted.

    Source: 71 FR 32398, June 5, 2006, unless otherwise noted.



                            Subpart A_General



Sec. 304.1  Purpose.

    Individuals who receive scholarship assistance from projects funded 
under the Special Education--Personnel Development to Improve Services 
and Results for Children with Disabilities program are required to 
complete a service obligation, or repay all or part of

[[Page 206]]

the costs of such assistance, in accordance with section 662(h) of the 
Act and the regulations of this part.

(Authority: 20 U.S.C. 1462(h))



Sec. 304.3  Definitions.

    The following definitions apply to this program:
    (a) Academic year means--
    (1) A full-time course of study--
    (i) Taken for a period totaling at least nine months; or
    (ii) Taken for the equivalent of at least two semesters, two 
trimesters, or three quarters; or
    (2) For a part-time scholar, the accumulation of periods of part-
time courses of study that is equivalent to an ``academic year'' under 
paragraph (a)(1) of this definition.
    (b) Act means the Individuals with Disabilities Education Act, as 
amended, 20 U.S.C. 1400 et seq.
    (c) Early intervention services means early intervention services as 
defined in section 632(4) of the Act and includes early intervention 
services to infants and toddlers with disabilities, and as applicable, 
to infants and toddlers at risk for disabilities under sections 632(1) 
and 632(5)(b) of the Act.
    (d) Full-time, for purposes of determining whether an individual is 
employed full-time in accordance with Sec. 304.30 means a full-time 
position as defined by the individual's employer or by the agencies 
served by the individual.
    (e) Related services means related services as defined in section 
602(26) of the Act.
    (f) Repayment means monetary reimbursement of scholarship assistance 
in lieu of completion of a service obligation.
    (g) Scholar means an individual who is pursuing a degree, license, 
endorsement, or certification related to special education, related 
services, or early intervention services and who receives scholarship 
assistance under section 662 of the Act.
    (h) Scholarship means financial assistance to a scholar for training 
under the program and includes all disbursements or credits for tuition, 
fees, stipends, books, and travel in conjunction with training 
assignments.
    (i) Service obligation means a scholar's employment obligation, as 
described in section 662(h) of the Act and Sec. 304.30.
    (j) Special education means special education as defined in section 
602(29) of the Act.

(Authority: 20 U.S.C. 1462(h))



            Subpart B_Conditions That Must be Met by Grantee



Sec. 304.21  Allowable costs.

    In addition to the allowable costs established in the Education 
Department General Administrative Regulations in 34 CFR 75.530 through 
75.562, the following items are allowable expenditures by projects 
funded under the program:
    (a) Cost of attendance, as defined in Title IV of the Higher 
Education Act of 1965, as amended, 20 U.S.C. 1087ll (HEA), including the 
following:
    (1) Tuition and fees.
    (2) An allowance for books, supplies, transportation, and 
miscellaneous personal expenses.
    (3) An allowance for room and board.
    (b) Stipends.
    (c) Travel in conjunction with training assignments.

(Authority: 20 U.S.C. 1462(h))



Sec. 304.22  Requirements for grantees in disbursing scholarships.

    Before disbursement of scholarship assistance to an individual, a 
grantee must--
    (a) Ensure that the scholar--
    (1) Is a citizen or national of the United States;
    (2) Is a permanent resident of--
    (i) Puerto Rico, the United States Virgin Islands, Guam, American 
Samoa, or the Commonwealth of the Northern Mariana Islands; or
    (ii) The Republic of the Marshall Islands, the Federated States of 
Micronesia, or the Republic of Palau during the period in which these 
entities are eligible to receive an award under the Personnel 
Development to Improve Services and Results for Children with 
Disabilities program; or
    (3) Provides evidence from the U.S. Department of Homeland Security 
that the individual is--

[[Page 207]]

    (i) A lawful permanent resident of the United States; or
    (ii) In the United States for other than a temporary purpose with 
the intention of becoming a citizen or permanent resident;
    (b) Limit the cost of attendance portion of the scholarship 
assistance (as discussed in Sec. 304.21(a)) to the amount by which the 
individual's cost of attendance at the institution exceeds the amount of 
grant assistance the scholar is to receive for the same academic year 
under title IV of the HEA; and
    (c) Obtain a Certification of Eligibility for Federal Assistance 
from each scholar, as prescribed in 34 CFR 75.60, 75.61, and 75.62.

(Authority: 20 U.S.C. 1462(h))



Sec. 304.23  Assurances that must be provided by grantee.

    Before receiving an award, a grantee that intends to grant 
scholarships under the program must include in its application an 
assurance that the following requirements will be satisfied:
    (a) Requirement for agreement. Prior to granting a scholarship, the 
grantee will require each scholar to enter into a written agreement in 
which the scholar agrees to the terms and conditions set forth in Sec. 
304.30. This agreement must explain the Secretary's authority to grant 
deferrals and exceptions to the service obligation pursuant to Sec. 
304.31 and include the current Department address for purposes of the 
scholar's compliance with Sec. 304.30(i), or any other purpose under 
this part.
    (b) Standards for satisfactory progress. The grantee must establish, 
notify scholars of, and apply reasonable standards for measuring whether 
a scholar is maintaining satisfactory progress in the scholar's course 
of study.
    (c) Exit certification.
    (1) At the time of exit from the program, the grantee must provide 
the following information to the scholar:
    (i) The number of years the scholar needs to work to satisfy the 
work requirements in Sec. 304.30(d);
    (ii) The total amount of scholarship assistance received subject to 
Sec. 304.30;
    (iii) The time period, consistent with Sec. 304.30(f)(1), during 
which the scholar must satisfy the work requirements; and
    (iv) As applicable, all other obligations of the scholar under Sec. 
304.30.
    (2) Upon receipt of this information from the grantee, the scholar 
must provide written certification to the grantee that the information 
is correct.
    (d) Information. The grantee must forward the information and 
written certification required in paragraph (c) of this section to the 
Secretary, as well as any other information that is necessary to carry 
out the Secretary's functions under section 662 of the Act and this 
part.
    (e) Notification to the Secretary. If the grantee is aware that the 
scholar has chosen not to fulfill or will be unable to fulfill the 
obligation under Sec. 304.30(d), the grantee must notify the Secretary 
when the scholar exits the program.

(Approved by the Office of Management and Budget under control number 
1820-0622)

(Authority: 20 U.S.C. 1462(h))



            Subpart C_Conditions That Must Be Met by Scholar



Sec. 304.30  Requirements for scholar.

    Individuals who receive scholarship assistance from grantees funded 
under section 662 of the Act must--
    (a) Training. Receive the training at the educational institution or 
agency designated in the scholarship;
    (b) Educational allowances. Not accept payment of educational 
allowances from any other entity if that allowance conflicts with the 
scholar's obligation under section 662 of the Act and this part;
    (c) Satisfactory progress. Maintain satisfactory progress toward the 
degree, certificate, endorsement, or license as determined by the 
grantee;
    (d) Service obligation. Upon exiting the training program under 
paragraph (a) of this section, subsequently maintain employment--
    (1) On a full-time or full-time equivalent basis; and
    (2) For a period of at least two years for every academic year for 
which assistance was received;
    (e) Eligible employment. In order to meet the requirements of 
paragraph (d)

[[Page 208]]

of this section for any project funded under section 662 of the Act, be 
employed in a position in which--
    (1) At least 51 percent of the infants, toddlers, and children to 
whom the individual provides services are receiving special education, 
related services, or early intervention services from the individual;
    (2) The individual spends at least 51 percent of his or her time 
providing special education, related services, or early intervention 
services to infants, toddlers, and children with disabilities; or
    (3) If the position involves supervision (including in the capacity 
of a principal), teaching at the postsecondary level, research, policy, 
technical assistance, program development, or administration, the 
individual spends at least 51 percent of his or her time performing work 
related to the training for which a scholarship was received under 
section 662 of the Act.
    (f) Time period. Meet the service obligation under paragraph (d) of 
this section as follows:
    (1) A scholar must complete the service obligation within the period 
ending not more than the sum of the number of years required in 
paragraph (d)(2) of this section, as appropriate, plus five additional 
years, from the date the scholar completes the training for which the 
scholarship assistance was awarded.
    (2) A scholar may begin eligible employment subsequent to the 
completion of one academic year of the training for which the 
scholarship assistance was received that otherwise meets the 
requirements of paragraph (1);
    (g) Part-time scholars. If the scholar is pursuing coursework on a 
part-time basis, meet the service obligation in this section based on 
the accumulated academic years of training for which the scholarship is 
received;
    (h) Information upon exit. Provide the grantee all requested 
information necessary for the grantee to meet the exit certification 
requirements under Sec. 304.23(c);
    (i) Information after exit. Within 60 days after exiting the 
program, and as necessary thereafter for any changes, provide the 
Department, via U.S. mail, all information that the Secretary needs to 
monitor the scholar's service obligation under this section, including 
social security number, address, employment setting, and employment 
status;
    (j) Repayment. If not fulfilling the requirements in this section, 
subject to the provisions in Sec. 304.31 regarding an exception or 
deferral, repay any scholarship received, plus interest, in an amount 
proportional to the service obligation not completed as follows:
    (1) The Secretary charges the scholar interest on the unpaid balance 
owed in accordance with the Debt Collection Act of 1982, as amended, 31 
U.S.C. 3717.
    (2)(i) Interest on the unpaid balance accrues from the date the 
scholar is determined to have entered repayment status under paragraph 
(4) of this section.
    (ii) Any accrued interest is capitalized at the time the scholar's 
repayment schedule is established.
    (iii) No interest is charged for the period of time during which 
repayment has been deferred under Sec. 304.31.
    (3) Under the authority of the Debt Collection Act of 1982, as 
amended, the Secretary may impose reasonable collection costs.
    (4) A scholar enters repayment status on the first day of the first 
calendar month after the earliest of the following dates, as applicable:
    (i) The date the scholar informs the grantee or the Secretary that 
the scholar does not plan to fulfill the service obligation under the 
agreement.
    (ii) Any date when the scholar's failure to begin or maintain 
employment makes it impossible for that individual to complete the 
service obligation within the number of years required in Sec. 
304.30(f).
    (iii) Any date on which the scholar discontinues enrollment in the 
course of study under Sec. 304.30(a).
    (5) The scholar must make payments to the Secretary that cover 
principal, interest, and collection costs according to a schedule 
established by the Secretary.
    (6) Any amount of the scholarship that has not been repaid pursuant 
to paragraphs (j)(1) through (j)(5) of this section will constitute a 
debt owed to

[[Page 209]]

the United States that may be collected by the Secretary in accordance 
with 34 CFR part 30.

(Approved by the Office of Management and Budget under control number 
1820-0622)

(Authority: 20 U.S.C. 1462(h))



Sec. 304.31  Requirements for obtaining an exception or deferral to performance
or repayment under an agreement.

    (a) Based upon sufficient evidence to substantiate the grounds, the 
Secretary may grant an exception to the repayment requirement in Sec. 
304.30(j), in whole or part, if the scholar--
    (1) Is unable to continue the course of study in Sec. 304.30 or 
perform the service obligation because of a permanent disability; or
    (2) Has died.
    (b) Based upon sufficient evidence to substantiate the grounds, the 
Secretary may grant a deferral of the repayment requirement in Sec. 
304.30(j) during the time the scholar--
    (1) Is engaging in a full-time course of study at an institution of 
higher education;
    (2) Is serving on active duty as a member of the armed services of 
the United States;
    (3) Is serving as a volunteer under the Peace Corps Act; or
    (4) Is serving as a full-time volunteer under title I of the 
Domestic Volunteer Service Act of 1973.

(Authority: 20 U.S.C. 1462(h))



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?
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?

[[Page 210]]

               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.
    (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:

[[Page 211]]

    (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.
    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))


[[Page 212]]


    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))

    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

[[Page 213]]

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 Sec. Sec. 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.
    (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)

[[Page 214]]



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 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

[[Page 215]]

    (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 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

[[Page 216]]

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, 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

[[Page 217]]

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 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.

[[Page 218]]

    (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.
    (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.

[[Page 219]]

    (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;
    (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

[[Page 220]]

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.
    (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

[[Page 221]]

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 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.

[[Page 222]]

    (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.
    (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.

[[Page 223]]

    (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)



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

[[Page 224]]

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?
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.

[[Page 225]]

    (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.
    (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)))

[[Page 226]]



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 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)))

[[Page 227]]



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]



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]

[[Page 228]]



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))



Sec. Sec. 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, 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]



Sec. Sec. 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))

[[Page 229]]



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;
    (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.

[[Page 230]]

    (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 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]



Sec. Sec. 359.33-359.39  [Reserved]



PART 361_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 and Other Requirements for Vocational 
                         Rehabilitation Services

361.10 Submission, approval, and disapproval of the State plan.
361.11 Withholding of funds.

                             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 Council.
361.17 Requirements for a State Rehabilitation Council.
361.18 Comprehensive system of personnel development.
361.19 Affirmative action for individuals with disabilities.
361.20 Public participation requirements.
361.21 Consultations regarding the administration of the State plan.
361.22 Coordination with education officials.
361.23 Requirements related to the statewide workforce investment 
          system.
361.24 Cooperation and coordination with other entities.
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 assessment; annual estimates; annual State goals and 
          priorities; strategies; and progress reports.
361.30 Services to American Indians.
361.31 Cooperative agreements with private nonprofit organizations.
361.32 Use of profitmaking organizations for on-the-job training in 
          connection with selected projects.
361.33 [Reserved.]
361.34 Supported employment State plan supplement.
361.35 Innovation and expansion activities.
361.36 Ability to serve all eligible individuals; order of selection for 
          services.
361.37 Information and referral services.
361.38 Protection, use, and release of personal information.
361.39 State-imposed requirements.
361.40 Reports.

                     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.

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361.44 Closure without eligibility determination.
361.45 Development of the individualized plan for employment.
361.46 Content of the individualized plan for employment.
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 Standards for facilities and providers of services.
361.52 Informed choice.
361.53 Comparable services and benefits.
361.54 Participation of individuals in cost of services based on 
          financial need.
361.55 Annual review of individuals in extended employment and other 
          employment under special certificate provisions of the Fair 
          Labor Standards Act.
361.56 Requirements for closing the record of services of an individual 
          who has achieved an employment outcome.
361.57 Review of determinations made by designated State unit personnel.

     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.

Subpart D [Reserved]

        Subpart E_Evaluation Standards and Performance Indicators

361.80 Purpose.
361.81 Applicable definitions.
361.82 Evaluation standards.
361.84 Performance indicators.
361.86 Performance levels.
361.88 Reporting requirements.
361.89 Enforcement procedures.

Appendix A to Part 361--Questions and Answers

    Authority: 29 U.S.C. 709(c), unless otherwise noted.

    Source: 66 FR 4382, Jan. 17, 2001, 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 
statewide comprehensive, coordinated, effective, efficient, and 
accountable programs, each of which is--
    (a) An integral part of a statewide workforce investment system; and
    (b) Designed to assess, plan, develop, and provide vocational 
rehabilitation services for individuals with disabilities, consistent 
with their strengths, resources, priorities, concerns, abilities, 
capabilities, interests, and informed choice, so that they may prepare 
for and engage in gainful employment.

(Authority: Section 100(a)(2) of the Act; 29 U.S.C. 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: Section 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; and
    (b) Administrative costs under the State plan.

(Authority: Section 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 and Agreements with 
Institutions of Higher Education, Hospitals, and other Non-profit 
Organizations), with respect to subgrants to entities that are not State 
or local governments or Indian tribal organizations.

[[Page 232]]

    (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 and Alcohol Abuse Prevention).
    (b) The regulations in this part 361.
    (c) 20 CFR part 662 (Description of One-Stop Service Delivery System 
under Title I of the Workforce Investment Act of 1998).
    (d) 29 CFR part 37, to the extent programs and activities are being 
conducted as part of the One-Stop service delivery system under section 
121(b) of the Workforce Investment Act of 1998.

(Authority: Section 12(c) of the Act; 29 U.S.C. 709(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, as amended (29 U.S.C. 
701 et seq.).
    (2) Administrative costs under the State plan means expenditures 
incurred in the performance of administrative functions under the 
vocational rehabilitation program carried out under this part, including 
expenses related to program planning, development, monitoring, and 
evaluation, including, but not limited to, expenses for--
    (i) Quality assurance;
    (ii) Budgeting, accounting, financial management, information 
systems, and related data processing;
    (iii) Providing information about the program to the public;
    (iv) Technical assistance and support services 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);
    (v) The State Rehabilitation Council and other advisory committees;
    (vi) Professional organization membership dues for designated State 
unit employees;
    (vii) The removal of architectural barriers in State vocational 
rehabilitation agency offices and State-operated rehabilitation 
facilities;
    (viii) Operating and maintaining designated State unit facilities, 
equipment, and grounds;
    (ix) Supplies;
    (x) Administration of the comprehensive system of personnel 
development described in Sec. 361.18, including personnel 
administration, administration of affirmative action plans, and training 
and staff development;
    (xi) Administrative salaries, including clerical and other support 
staff salaries, in support of these administrative functions;
    (xii) Travel costs related to carrying out the program, other than 
travel costs related to the provision of services;
    (xiii) Costs incurred in conducting reviews of determinations made 
by personnel of the designated State unit, including costs associated 
with mediation and impartial due process hearings under Sec. 361.57; 
and
    (xiv) Legal expenses required in the administration of the program.


(Authority: Section 7(1) of the Act; 29 U.S.C. 705(1))

    (3) American Indian means an individual who is a member of an Indian 
tribe.


(Authority: Section 7(19)(A) of the Act; 29 U.S.C. 705(19)(A))


[[Page 233]]


    (4) Applicant means an individual who submits an application for 
vocational rehabilitation services in accordance with Sec. 
361.41(b)(2).


(Authority: Section 12(c) of the Act; 29 U.S.C. 709(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: Section 12(c) of the Act; 29 U.S.C. 709(c))

    (6) Assessment for determining eligibility and vocational 
rehabilitation needs means, as appropriate in each case--
    (i)(A) A review of existing data--
    (1) To determine if an individual is eligible for vocational 
rehabilitation services; and
    (2) To assign priority for an order of selection described in Sec. 
361.36 in the States that use an order of selection; and
    (B) To the extent necessary, the provision of appropriate assessment 
activities to obtain necessary additional data to make the eligibility 
determination and assignment;
    (ii) To the extent additional data are necessary to make a 
determination of the employment outcomes and the nature and scope of 
vocational rehabilitation services to be included in the individualized 
plan for employment of an eligible individual, a comprehensive 
assessment to determine the unique strengths, resources, priorities, 
concerns, abilities, capabilities, interests, and informed choice, 
including the need for supported employment, of the eligible individual. 
This comprehensive assessment--
    (A) Is limited to information that is necessary to identify the 
rehabilitation needs of the individual and to develop the individualized 
plan of employment of the eligible individual;
    (B) Uses as a primary source of information, to the maximum extent 
possible and appropriate and in accordance with confidentiality 
requirements--
    (1) Existing information obtained for the purposes of determining 
the eligibility of the individual and assigning priority for an order of 
selection described in Sec. 361.36 for the individual; and
    (2) Information that can be provided by the individual and, if 
appropriate, by the family of the individual;
    (C) May include, to the degree needed to make such a determination, 
an assessment of the personality, interests, interpersonal skills, 
intelligence and related functional capacities, educational 
achievements, work experience, vocational aptitudes, personal and social 
adjustments, and employment opportunities of the individual and the 
medical, psychiatric, psychological, and other pertinent vocational, 
educational, cultural, social, recreational, and environmental factors 
that affect the employment and rehabilitation needs of the individual; 
and
    (D) May include, to the degree needed, an appraisal of the patterns 
of work behavior of the individual and services needed for the 
individual to acquire occupational skills and to develop work attitudes, 
work habits, work tolerance, and social and behavior patterns necessary 
for successful job performance, including the use of work in real job 
situations to assess and develop the capacities of the individual to 
perform adequately in a work environment;
    (iii) Referral, for the provision of rehabilitation technology 
services to the individual, to assess and develop the capacities of the 
individual to perform in a work environment; and
    (iv) An exploration of the individual's abilities, capabilities, and 
capacity to perform in work situations, which must be assessed 
periodically during trial work experiences, including experiences in 
which the individual is provided appropriate supports and training.


(Authority: Section 7(2) of the Act; 29 U.S.C. 705(2))


[[Page 234]]


    (7) 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: Section 7(3) of the Act; 29 U.S.C. 705(3))

    (8) 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 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: Sections 7(4) and 12(c) of the Act; 29 U.S.C. 705(4) and 
709(c))

    (9) 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.
    (10) Comparable services and benefits means--
    (i) Services and benefits that are--
    (A) Provided or paid for, in whole or in part, by other Federal, 
State, or local public agencies, by health insurance, or by employee 
benefits;

[[Page 235]]

    (B) Available to the individual at the time needed to ensure the 
progress of the individual toward achieving the employment outcome in 
the individual's individualized plan for employment in accordance with 
Sec. 361.53; and
    (C) Commensurate to the services that the individual would otherwise 
receive from the designated State vocational rehabilitation agency.
    (ii) For the purposes of this definition, comparable benefits do not 
include awards and scholarships based on merit.


(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C. 709(c) 
and 721(a)(8))

    (11) 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: Sections 7(11) and 12(c) of the Act; 29 U.S.C. 705(11) and 
709(c))

    (12) 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 construction of new buildings;
    (iii) The acquisition of existing buildings;
    (iv) The expansion, remodeling, alteration, or renovation of 
existing buildings;
    (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: Sections 7(6) and 12(c) of the Act; 29 U.S.C. 705(6) and 
709(c))

    (13) Designated State agency or State agency means the sole State 
agency, designated in accordance with Sec. 361.13(a), to administer, or 
supervise the 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: Sections 7(8)(A) and 101(a)(2)(A) of the Act; 29 U.S.C. 
705(8)(A) and 721(a)(2)(A))

    (14) Designated State unit or State unit means either--
    (i) The State 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 State agency that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities.


(Authority: Sections 7(8)(B) and 101(a)(2)(B) of the Act; 29 U.S.C. 
705(8)(B) and 721(a)(2)(B))

    (15) Eligible individual means an applicant for vocational 
rehabilitation services who meets the eligibility requirements of Sec. 
361.42(a).


(Authority: Sections 7(20)(A) and 102(a)(1) of the Act; 29 U.S.C. 
705(20)(A) and 722(a)(1))

    (16) Employment outcome means, with respect to an individual, 
entering or retaining full-time or, if appropriate, part-time 
competitive employment, as defined in Sec. 361.5(b)(11), in the 
integrated labor market, supported employment, or any other type of 
employment in an integrated setting, including self-employment, 
telecommuting,

[[Page 236]]

or business ownership, that is consistent with an individual's 
strengths, resources, priorities, concerns, abilities, capabilities, 
interests, and informed choice.


(Authority: Sections 7(11), 12(c), 100(a)(2), and 102(b)(3)(A) of the 
Act; 29 U.S.C. 705(11), 709(c), 720(a)(2), and 722(b)(3)(A))

    (17) 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)(18) 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 4 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: Sections 7(12) and 12(c) of the Act; 29 U.S.C. 705(12) and 
709(c))

    (18) 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 building has been 
completed in all respects for at least 1 year prior to the date of 
acquisition and the Federal share of the cost of 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: Sections 7(12) and 12(c) of the Act; 29 U.S.C. 705(12) and 
709(c))

    (19) 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.


(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))

    (20) Extended services means ongoing support services and other 
appropriate services that are needed to support and maintain an 
individual with a most significant 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 and 34 CFR part 363 after an 
individual with a most significant disability has made

[[Page 237]]

the transition from support provided by the designated State unit.


(Authority: Sections 7(13) and 623 of the Act; 29 U.S.C. 705(13) and 
795i)

    (21) 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: Sections 12(c) and 101(a)(8)(A)(i)(III) of the Act; 29 
U.S.C. 709(c) and 721(a)(8)(A)(i)(III))

    (22) Fair hearing board means a committee, body, or group of persons 
established by a State prior to January 1, 1985 that--
    (i) Is authorized under State law to review determinations made by 
personnel of the designated State unit that affect the provision of 
vocational rehabilitation services; and
    (ii) Carries out the responsibilities of the impartial hearing 
officer in accordance with the requirements in Sec. 361.57(j).


(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))

    (23) Family member, for purposes of receiving vocational 
rehabilitation services in accordance with Sec. 361.48(i), 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: Sections 12(c) and 103(a)(17) of the Act; 29 U.S.C. 709(c) 
and 723(a)(17))

    (24) Governor means a chief executive officer of a State.


(Authority: Section 7(15) of the Act; 29 U.S.C. 705(15))

    (25) 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 Council for the 
designated State unit;
    (C) Has not been involved previously in 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 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 is not 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: Section 7(16) of the Act; 29 U.S.C. 705(16))

    (26) 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: Section 7(19)(B) of the Act; 29 U.S.C. 705(19)(B))

    (27) Individual who is blind means a person who is blind within the 
meaning of applicable State law. (Authority: Section 12(c) of the Act; 
29 U.S.C. 709(c))
    (28) Individual with a disability, except as provided in Sec. 
361.5(b)(29), means an individual--
    (i) Who has a physical or mental impairment;
    (ii) Whose impairment constitutes or results in a substantial 
impediment to employment; and

[[Page 238]]

    (iii) Who can benefit in terms of an employment outcome from the 
provision of vocational rehabilitation services.


(Authority: Section 7(20)(A) of the Act; 29 U.S.C. 705(20)(A))

    (29) Individual with a disability, for purposes of Sec. Sec. 
361.5(b)(14), 361.13(a), 361.13(b)(1), 361.17(a), (b), (c), and (j), 
361.18(b), 361.19, 361.20, 361.23(b)(2), 361.29(a) and (d)(5), and 
361.51(b), 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: Section 7(20)(B) of the Act; 29 U.S.C. 705(20)(B))

    (30) Individual with a most significant disability means an 
individual with a significant disability who meets the designated State 
unit's criteria for an individual with a most significant disability. 
These criteria must be consistent with the requirements in Sec. 
361.36(d)(1) and (2).


(Authority: Sections 7(21)(E)(i) and 101(a)(5)(C) of the Act; 29 U.S.C. 
705(21)(E)(i) and 721(a)(5)(C))

    (31) Individual with a significant 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: Section 7(21)(A) of the Act; 29 U.S.C. 705(21)(A))

    (32) Individual's representative means any representative chosen by 
an applicant or eligible individual, as appropriate, 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 the 
court-appointed representative is the individual's representative.


(Authority: Sections 7(22) and 12(c) of the Act; 29 U.S.C. 705(22) and 
709(c))

    (33) 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: Section 12(c) of the Act; 29 U.S.C. 709(c))

    (34) Local workforce investment board means a local workforce 
investment board established under section 117 of the Workforce 
Investment Act of 1998.


(Authority: Section 7(25) of the Act; 29 U.S.C. 705(25))


[[Page 239]]


    (35) Maintenance means monetary support provided to an individual 
for 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 an assessment for determining eligibility 
and vocational rehabilitation needs or the individual's receipt of 
vocational rehabilitation services under an individualized plan for 
employment.


(Authority: Sections 12(c) and 103(a)(7) of the Act; 29 U.S.C. 709(c) 
and 723(a)(7))

    (i) Examples: The following are examples of expenses that would meet 
the definition of maintenance. The examples are illustrative, do not 
address all possible circumstances, and are not intended to substitute 
for individual counselor judgment.

    Example 1: The cost of a uniform or other suitable clothing that is 
required for an individual's job placement or job-seeking activities.
    Example 2: The cost of short-term shelter that is required in order 
for an individual to participate in assessment activities or vocational 
training at a site that is not within commuting distance of an 
individual's home.
    Example 3: 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 4: The costs of an individual's participation in enrichment 
activities related to that individual's training program.

    (ii) [Reserved]
    (36) Mediation means the act or process of using an independent 
third party to act as a mediator, intermediary, or conciliator to assist 
persons or parties in settling differences or disputes prior to pursuing 
formal administrative or other legal remedies. Mediation under the 
program must be conducted in accordance with the requirements in Sec. 
361.57(d) by a qualified and impartial mediator as defined in Sec. 
361.5(b)(43).


(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))

    (37) 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 1986.


(Authority: Section 7(26) of the Act; 29 U.S.C. 705(26))

    (38) 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 
significant disability in supported employment;
    (B) Identified based on a determination by the designated State unit 
of the individual's need as specified in an individualized plan for 
employment; 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 specific circumstances, especially at the request of 
the individual, the individualized plan for employment provides for off-
site monitoring, twice monthly meetings with the individual;
    (iii) Consist of--
    (A) Any particularized assessment supplementary to the comprehensive 
assessment of rehabilitation needs described in paragraph (b)(6)(ii) of 
this section;
    (B) The provision of skilled job trainers who accompany the 
individual for intensive job skill training at the work site;
    (C) Job development and training;
    (D) Social skills training;

[[Page 240]]

    (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: Sections 7(27) and 12(c) of the Act; 29 U.S.C. 705(27) and 
709(c))

    (39) 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: Sections 7(28), 102(b)(3)(B)(i)(I), and 103(a)(9) of the 
Act; 29 U.S.C. 705(28), 722(b)(3)(B)(i)(I), and 723(a)(9))

    (40) 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 and orthotic devices;
    (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: Sections 12(c) and 103(a)(6) of the Act; 29 U.S.C. 709(c) 
and 723(a)(6))

    (41) Physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological, musculo-skeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine; or
    (ii) Any mental or psychological disorder such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.


(Authority: Sections 7(20)(A) and 12(c) of the Act; 29 U.S.C. 705(20)(A) 
and 709(c))

    (42) Post-employment services means one or more of the services 
identified in Sec. 361.48 that are provided subsequent

[[Page 241]]

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, priorities, concerns, 
abilities, capabilities, interests, and informed choice.


(Authority: Sections 12(c) and 103(a)(18) of the Act; 29 U.S.C. 709(c)) 
and 723(a)(18))

    Note to paragraph (b)(42): Post-employment services are intended to 
ensure that the employment outcome remains consistent with the 
individual's strengths, resources, priorities, concerns, abilities, 
capabilities, interests, and informed choice. 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 plan for employment; 
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, interests, and informed choice.

    (43) Qualified and impartial mediator. (i) Qualified and impartial 
mediator means an individual who--
    (A) Is not an employee of a public agency (other than an 
administrative law judge, hearing examiner, employee of a State office 
of mediators, or employee of an institution of higher education);
    (B) Is not a member of the State Rehabilitation Council for the 
designated State unit;
    (C) Has not been involved previously in the vocational 
rehabilitation of the applicant or eligible individual;
    (D) Is knowledgeable of the vocational rehabilitation program and 
the applicable Federal and State laws, regulations, and policies 
governing the provision of vocational rehabilitation services;
    (E) Has been trained in effective mediation techniques consistent 
with any State-approved or -recognized certification, licensing, 
registration, or other requirements; and
    (F) Has no personal, professional, or financial interest that would 
be in conflict with the objectivity of the individual during the 
mediation proceedings.
    (ii) An individual serving as a mediator is not considered to be an 
employee of the designated State agency or designated State unit for the 
purposes of this definition solely because the individual is paid by the 
designated State agency or designated State unit to serve as a mediator.


(Authority: Sections 12(c) and 102(c)(4) of the Act; 29 U.S.C. 709(c) 
and 722(c)(4))

    (44) 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: Section 7(12)(c) of the Act; 29 U.S.C. 709(c))

    (45) 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: Section 7(30) of the Act; 29 U.S.C. 705(30))

    (46) Reservation means a Federal or State Indian reservation, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held

[[Page 242]]

by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act.


(Authority: Section 121(c) of the Act; 29 U.S.C. 741(c))

    (47) 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: Section 7(24) of the Act; 29 U.S.C. 705(24))

    (48) 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: Section 7(32) of the Act; 29 U.S.C. 705(32))

    (49) State workforce investment board means a State workforce 
investment board established under section 111 of the Workforce 
Investment Act of 1998.


(Authority: Section 7(33) of the Act; 29 U.S.C. 705(33))

    (50) Statewide workforce investment system means a system described 
in section 111(d)(2) of the Workforce Investment Act of 1998.


(Authority: Section 7(34) of the Act; 29 U.S.C. 705(34))

    (51) State plan means the State plan for vocational rehabilitation 
services submitted under Sec. 361.10.


(Authority: Sections 12(c) and 101 of the Act; 29 U.S.C. 709(c) and 721)

    (52) Substantial impediment to employment means that a physical or 
mental impairment (in light of attendant medical, psychological, 
vocational, educational, communication, 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: Sections 7(20)(A) and 12(c) of the Act; 29 U.S.C. 705(20)(A) 
and 709(c))

    (53) Supported employment means--
    (i) Competitive employment in an integrated setting, or employment 
in integrated work settings in which individuals are working toward 
competitive employment, consistent with the strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice of the individuals with ongoing support services for individuals 
with the most significant 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 significant 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 as described in paragraph 
(b)(20) of this section to perform this work; or
    (ii) Transitional employment, as defined in paragraph (b)(54) of 
this section, for individuals with the most significant disabilities due 
to mental illness.


(Authority: Section 7(35) of the Act; 29 U.S.C. 705(35))

    (54) Supported employment services means ongoing support services 
and other appropriate services needed to support and maintain an 
individual with a most significant 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 to achieve the 
employment outcome identified in the individualized plan for employment; 
and
    (ii) Following transition, as post-employment services that are 
unavailable from an extended services provider and

[[Page 243]]

that are necessary to maintain or regain the job placement or advance in 
employment.


(Authority: Sections 7(36) and 12(c) of the Act; 29 U.S.C. 705(36) and 
709(c))

    (55) 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 achievement of the 
employment outcome identified in the student's individualized plan for 
employment.


(Authority: Section 7(37) and 103(a)(15) of the Act; 29 U.S.C. 705(37) 
and 723(a)(15))

    (56) 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 significant 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: Sections 7(35)(B) and 12(c) of the Act; 29 U.S.C. 705(35)(B) 
and 709(c)

    (57) Transportation means travel and related expenses that are 
necessary to enable an applicant or eligible individual to participate 
in a vocational rehabilitation service, including expenses for training 
in the use of public transportation vehicles and systems.


(Authority: 103(a)(8) of the Act; 29 U.S.C. 723(a)(8))

    (i) Examples: 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 judgment.

    Example 1: 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 2: The purchase and repair of vehicles, including vans, but 
not the modification of these vehicles, as modification would be 
considered a rehabilitation technology service.
    Example 3: 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.

    (ii) [Reserved]
    (58) 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: Sections 7(38) and 103(a) and (b) of the Act; 29 U.S.C. 
705(38), 723(a) and (b))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7252, Jan. 22, 2001]



       Subpart B_State Plan and Other Requirements for Vocational 
                         Rehabilitation Services



Sec. 361.10  Submission, approval, and disapproval of the State plan.

    (a) Purpose. For a State to receive a grant under this part, the 
designated State agency must 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 the vocational rehabilitation of 
individuals who are blind. If a separate State agency administers or 
supervises the administration of a separate part of the State

[[Page 244]]

plan relating to the vocational 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) State unified plan. The State may choose to submit the State 
plan for vocational rehabilitation services as part of the State unified 
plan under section 501 of the Workforce Investment Act of 1998. The 
portion of the State unified plan that includes the State plan for 
vocational rehabilitation services must meet the State plan requirements 
in this part.
    (d) Public participation. Prior to the adoption of any substantive 
policies or procedures governing the provision of vocational 
rehabilitation services under the State plan, including making any 
substantive amendment to those policies and procedures, the designated 
State agency must conduct public meetings throughout the State, in 
accordance with the requirements of Sec. 361.20.
    (e) Duration. The State plan remains in effect subject to the 
submission of modifications the State determines to be necessary or the 
Secretary may require based on a change in State policy, a change in 
Federal law, including regulations, an interpretation of the Act by a 
Federal court or the highest court of the State, or a finding by the 
Secretary of State noncompliance with the requirements of the Act or 
this part.
    (f) Submission of the State plan. The State must submit the State 
plan for approval--
    (1) To the Secretary on the same date that the State submits a State 
plan relating to the statewide workforce investment system under section 
112 of the Workforce Investment Act of 1998;
    (2) As part of the State unified plan submitted under section 501 of 
that Act; or
    (3) To the Secretary on the same date that the State submits a State 
unified plan under section 501 of that Act that does not include the 
State plan under this part.
    (g) Annual submission. (1) The State must submit to the Secretary 
for approval revisions to the State plan in accordance with paragraph 
(e) of this section and 34 CFR 76.140.
    (2) The State must submit to the Secretary reports containing annual 
updates of the information required under Sec. Sec. 361.18, 361.29, and 
361.35 and any other updates of the information required under this part 
that are requested by the Secretary.
    (3) The State is not required to submit policies, procedures, or 
descriptions required under this part that have been previously 
submitted to the Secretary and that demonstrate that the State meets the 
requirements of this part, including any policies, procedures, or 
descriptions submitted under this part that are in effect on August 6, 
1998.
    (h) Approval. The Secretary approves any State plan and any 
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 any 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 any 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 Secretary's review of the initial decision in accordance with 
34 CFR part 81.

[[Page 245]]

    (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: Sections 101(a) and (b), and 107(d) of the Act; 20 U.S.C. 
1231g(a); and 29 U.S.C. 721(a) and (b), and 727(d))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.11  Withholding of funds.

    (a) Basis for withholding. The Secretary may withhold or limit 
payments under section 111 or 622(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(b)(2) 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: Sections 101(b), 107(c), and 107(d) of the Act; 29 U.S.C. 
721(b), 727(c)(1) and (2), and 727(d))

                             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.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(6) and (a)(10)(A) of the Act; 29 U.S.C. 
721(a)(6) and (a)(10)(A))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



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:

[[Page 246]]

    (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:
    (i) A State agency that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities; or
    (ii) A State agency that includes a vocational rehabilitation unit 
as provided in paragraph (b) of this section.
    (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 
not of the type specified in paragraph (a)(1)(i) of this section or if 
the designated State agency specified in paragraph (a)(3) of this 
section is not primarily concerned with 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;
    (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.
    (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) 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 to close the record of services of an 
individual who has achieved an employment outcome in accordance with 
Sec. 361.56.
    (iii) Policy formulation and implementation.
    (iv) The allocation and expenditure of vocational rehabilitation 
funds.
    (v) Participation as a partner in the One-Stop service delivery 
system under Title I of the Workforce Investment Act of 1998, in 
accordance with 20 CFR part 662.
    (2) The responsibility for the functions described in paragraph 
(c)(1) of this section may not be delegated to any other agency or 
individual.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(2) of the Act; 29 U.S.C. 721(a)(2))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]

[[Page 247]]



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 must 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: Section 107(c)(3) of the Act; 29 U.S.C. 727(c)(3))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.15  Local administration.

    (a) If the State plan provides for the administration of the plan by 
a local agency, the designated State agency must--
    (1) Ensure 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)(47) that is responsible for the administration of the program 
within the political subdivision that it serves; and
    (2) Develop methods that 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: Sections 7(24) and 101(a)(2)(A) of the Act; 29 U.S.C. 
705(24) and 721(a)(2)(A))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.16  Establishment of an independent commission or a state 
rehabilitation 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 designated State agency is an independent 
State commission that--
    (i) Is responsible under State law for operating, or overseeing the 
operation of, the vocational rehabilitation program in the State and 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, unless 
the designated State unit under the direction of the commission is the 
State agency for individuals who are blind;
    (iii) Includes family members, advocates, or other representatives 
of individuals with mental impairments; and
    (iv) Conducts the functions identified in Sec. 361.17(h)(4).
    (2) An assurance that--
    (i) The State has established a State Rehabilitation Council 
(Council) that meets the requirements of Sec. 361.17;
    (ii) The designated State unit, in accordance with Sec. 361.29, 
jointly develops, agrees to, and reviews annually State goals and 
priorities and jointly submits to the Secretary annual reports of 
progress with the Council;
    (iii) The designated State unit regularly consults with the Council 
regarding the development, implementation, and revision of State 
policies and procedures of general applicability pertaining to the 
provision of vocational rehabilitation services;

[[Page 248]]

    (iv) The designated State unit transmits to the Council--
    (A) All plans, reports, and other information required under this 
part to be submitted to the Secretary;
    (B) All policies and information on all practices and procedures of 
general applicability provided to or used by rehabilitation personnel 
providing vocational rehabilitation services under this part; and
    (C) Copies of due process hearing decisions issued under this part 
and transmitted in a manner to ensure that the identity of the 
participants in the hearings is kept confidential; and
    (v) The State plan, and any revision to the State plan, includes a 
summary of input provided by the Council, including recommendations from 
the annual report of the Council, the review and analysis of consumer 
satisfaction described in Sec. 361.17(h)(4), and other reports prepared 
by the Council, and the designated State unit's response to the input 
and recommendations, including explanations of reasons for rejecting any 
input or recommendation 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 must either establish a separate State 
Rehabilitation Council for each agency that does not meet the 
requirements in paragraph (a)(1) of this section or establish one State 
Rehabilitation Council for both agencies if neither agency meets the 
requirements of paragraph (a)(1) of this section.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(21) of the Act; 29 U.S.C. 721(a)(21))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.17  Requirements for a state rehabilitation council.

    If the State has established a Council under Sec. 361.16(a)(2) or 
(b), the Council must meet the following requirements:
    (a) Appointment. (1) The members of the Council must be appointed by 
the Governor or, in the case of a State that, under State law, vests 
authority for the administration of the activities carried out under 
this part in an entity other than the Governor (such as one or more 
houses of the State legislature or an independent board), the chief 
officer of that entity.
    (2) The appointing authority must 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. In selecting 
members, the appointing authority must consider, to the greatest extent 
practicable, the extent to which minority populations are represented on 
the Council.
    (b) Composition--(1) General. Except as provided in paragraph (b)(3) 
of this section, the Council must be composed of at least 15 members, 
including--
    (i) At least one representative of the Statewide Independent Living 
Council, who must be the chairperson or other designee of the Statewide 
Independent Living Council;
    (ii) At least one representative of a parent training and 
information center established pursuant to section 682(a) of the 
Individuals with Disabilities Education Act;
    (iii) At least one representative of the Client Assistance Program 
established under 34 CFR part 370, who must be the director of or other 
individual recommended by the Client Assistance Program;
    (iv) At least one qualified vocational rehabilitation counselor with 
knowledge of and experience with vocational rehabilitation programs who 
serves as an ex officio, nonvoting member of the Council 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

[[Page 249]]

    (B) Representatives of individuals with disabilities who have 
difficulty representing themselves or are unable due to their 
disabilities to represent themselves;
    (viii) Current or former applicants for, or recipients of, 
vocational rehabilitation services;
    (ix) In a State in which one or more projects are carried out under 
section 121 of the Act (American Indian Vocational Rehabilitation 
Services), at least one representative of the directors of the projects;
    (x) At least one representative of the State educational agency 
responsible for the public education of students with disabilities who 
are eligible to receive services under this part and part B of the 
Individuals with Disabilities Education Act;
    (xi) At least one representative of the State workforce investment 
board; and
    (xii) The director of the designated State unit as an ex officio, 
nonvoting member of the Council.
    (2) Employees of the designated State agency. Employees of the 
designated State agency may serve only as nonvoting members of the 
Council. This provision does not apply to the representative appointed 
pursuant to paragraph (b)(1)(iii) of this section.
    (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 must--
    (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 representative of an individual who is blind, has 
multiple disabilities, and has difficulty representing himself or 
herself or is unable due to disabilities to represent himself or 
herself.
    (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 15 members, the separate Council is 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.
    (c) Majority. (1) A majority of the Council members must be 
individuals with disabilities who meet the requirements of Sec. 
361.5(b)(29) and are not employed by the designated State unit.
    (2) In the case of a separate Council established under Sec. 
361.16(b), a majority of the Council members must be individuals who are 
blind and are not employed by the designated State unit.
    (d) Chairperson. The chairperson must 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) In States in which the Governor does not have veto power 
pursuant to State law, the appointing authority described in paragraph 
(a)(1) of this section must designate a member of the Council to serve 
as the chairperson of the Council or must require the Council to 
designate a member to serve as chairperson.
    (e) Terms of appointment. (1) Each member of the Council must be 
appointed for a term of no more than 3 years, and each member of the 
Council, other than a representative identified in paragraph (b)(1)(iii) 
or (ix) of this section, 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 must be appointed 
for the remainder of the predecessor's term.
    (3) The terms of service of the members initially appointed must be, 
as specified by the appointing authority as described in paragraph 
(a)(1) of this section, 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, except the 
appointing authority as described in paragraph (a)(1) of this section 
may delegate the

[[Page 250]]

authority to fill that vacancy to the remaining members of the Council 
after making 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 must, after consulting with the State 
workforce investment board--
    (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 in 
achieving employment outcomes under this part;
    (2) In partnership with the designated State unit--
    (i) Develop, agree to, and review State goals and priorities in 
accordance with Sec. 361.29(c); and
    (ii) Evaluate the effectiveness of the vocational rehabilitation 
program and submit reports of progress to the Secretary in accordance 
with Sec. 361.29(e);
    (3) Advise the designated State agency and the designated State unit 
regarding activities carried out under this part and assist in the 
preparation of the State plan and amendments to the plan, applications, 
reports, needs assessments, and evaluations required by this part;
    (4) To the extent feasible, conduct a review and analysis of the 
effectiveness of, and consumer satisfaction with--
    (i) The functions performed by the designated State agency;
    (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 
under the Act; and
    (iii) The employment outcomes achieved by eligible individuals 
receiving services under this part, including the availability of health 
and other employment benefits in connection with those employment 
outcomes;
    (5) Prepare and submit to the Governor 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;
    (6) To avoid duplication of efforts and enhance the number of 
individuals served, coordinate activities with the activities of other 
councils within the State, including the Statewide Independent Living 
Council established under 34 CFR part 364, the advisory panel 
established under section 612(a)(21) of the Individuals with 
Disabilities Education Act, the State Developmental Disabilities 
Planning Council described in section 124 of the Developmental 
Disabilities Assistance and Bill of Rights Act, the State mental health 
planning council established under section 1914(a) of the Public Health 
Service Act, and the State workforce investment board;
    (7) 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
    (8) Perform other comparable functions, consistent with the purpose 
of this part, as the Council determines to be appropriate, that are 
comparable to the other functions performed by the Council.
    (i) Resources. (1) The Council, in conjunction with the designated 
State unit, must prepare a plan for the provision of resources, 
including staff and other personnel, that may be necessary and 
sufficient for the Council to carry out its functions under this part.
    (2) The resource plan must, to the maximum extent possible, rely on 
the use of resources in existence during the period of implementation of 
the plan.
    (3) Any disagreements between the designated State unit and the 
Council

[[Page 251]]

regarding the amount of resources necessary to carry out the functions 
of the Council must be resolved by the Governor, consistent with 
paragraphs (i)(1) and (2) of this section.
    (4) The Council must, 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 must--
    (1) Convene at least four meetings a year in locations determined by 
the Council to be necessary to conduct Council business. The meetings 
must be publicly announced, open, and accessible to the general 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 121 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: Section 105 of the Act; 29 U.S.C. 725)

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



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 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) 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 5 years based on 
projections of the number of individuals to be served, including 
individuals with significant 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 credentials 
to receive, certification or licensure.

[[Page 252]]

    (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 all 
professional and paraprofessional personnel needed within the designated 
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. The steps taken by the State unit under this 
paragraph must be described in a written plan that includes--
    (A) Specific strategies for retraining, recruiting, and hiring 
personnel;
    (B) The specific time period by which all State unit personnel will 
meet the standards described in paragraph (c)(1)(i) of this section;
    (C) Procedures for evaluating the State unit's progress in hiring or 
retraining personnel to meet applicable personnel standards within the 
time period established under paragraph (c)(1)(ii)(B) of this section; 
and
    (D) In instances in which the State unit is unable to immediately 
hire new personnel who meet the requirements in paragraph (c)(1)(i) of 
this section, the initial minimum qualifications that the designated 
State unit will require of newly hired personnel and a plan for training 
those individuals to meet applicable requirements within the time period 
established under paragraph (c)(1)(ii)(B) of this section.
    (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, in the absence of these requirements, 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 unit; 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--

[[Page 253]]

    (i) A system of staff development for rehabilitation professionals 
and paraprofessionals within the State unit, particularly with respect 
to assessment, vocational counseling, job placement, and 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.
    (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--
    (i) Training regarding the Workforce Investment Act of 1998 and the 
amendments to the Rehabilitation Act of 1973 made by the Rehabilitation 
Act Amendments of 1998;
    (ii) Training with respect to the requirements of the Americans with 
Disabilities Act, the Individuals with Disabilities Education Act, and 
Social Security work incentive programs, including programs under the 
Ticket to Work and Work Incentives Improvement Act of 1999, training to 
facilitate informed choice under this program, and training to improve 
the provision of services to culturally diverse populations; and
    (iii) Activities related to--
    (A) Recruitment and retention of qualified rehabilitation personnel;
    (B) Succession planning; and
    (C) Leadership development and capacity building.
    (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) Coordination with personnel development under the Individuals 
with Disabilities Education Act. 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 the Individuals with Disabilities Education 
Act.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(7) of the Act; 29 U.S.C. 721(a)(7))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



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 covered under and on the same terms and conditions as 
stated in section 503 of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(6)(B) of the Act; 29 U.S.C. 721(a)(6)(B))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.20  Public participation requirements.

    (a) Conduct of public meetings. The State plan must assure that 
prior to the adoption of any substantive policies or procedures 
governing the provision of vocational rehabilitation services under the 
State plan, including making any substantive amendments to the policies 
and procedures, the designated State agency conducts public meetings 
throughout the State to provide the public, including individuals with 
disabilities, an opportunity to comment on the policies or procedures.
    (b) Notice requirements. The State plan must assure that the 
designated State agency, prior to conducting the public meetings, 
provides appropriate and sufficient notice throughout the State of the 
meetings in accordance with--
    (1) State law governing public meetings; or
    (2) In the absence of State law governing public meetings, 
procedures developed by the designated State agency in consultation with 
the State Rehabilitation Council.
    (c) Summary of input of the State Rehabilitation Council. The State 
plan must

[[Page 254]]

provide a summary of the input of the State Rehabilitation Council, if 
the State agency has a Council, into the State plan and any amendment to 
the plan, in accordance with Sec. 361.16(a)(2)(v).
    (d) Special consultation requirements. The State plan must assure 
that the State agency actively consults with the director of the Client 
Assistance Program, the State Rehabilitation Council, if the State 
agency has a Council, and, as appropriate, Indian tribes, tribal 
organizations, and native Hawaiian organizations on its policies and 
procedures governing the provision of vocational rehabilitation services 
under the State plan.
    (e) Appropriate modes of communication. The State unit must provide 
to the public, through appropriate modes of communication, notices of 
the public meetings, any materials furnished prior to or during the 
public meetings, and the policies and procedures governing the provision 
of vocational rehabilitation services under the State plan.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(16)(A) and 105(c)(3) of the Act; 29 U.S.C. 
721(a)(16)(A), and 725(c)(3))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.21  Consultations regarding the administration of the state plan.

    The State plan must assure that, in connection with matters of 
general policy arising in the administration of the State plan, the 
designated State agency takes into account the views of--
    (a) Individuals and groups of individuals who are recipients of 
vocational rehabilitation services or, as appropriate, the individuals' 
representatives;
    (b) Personnel working in programs that provide vocational 
rehabilitation services to individuals with disabilities;
    (c) Providers of vocational rehabilitation services to individuals 
with disabilities;
    (d) The director of the Client Assistance Program; and
    (e) The State Rehabilitation Council, if the State has a Council.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(16)(B) of the Act; 29 U.S.C. 721(a)(16)(B))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.22  Coordination with education officials.

    (a) Plans, policies, and procedures. (1) The State plan must contain 
plans, policies, and procedures for coordination between the designated 
State agency and education officials responsible for the public 
education of students with disabilities that are designed to facilitate 
the transition of students with disabilities from the receipt of 
educational services in school to the receipt of vocational 
rehabilitation services under the responsibility of the designated State 
agency.
    (2) These plans, policies, and procedures in paragraph (a)(1) of 
this section must provide for the development and approval of an 
individualized plan for employment in accordance with Sec. 361.45 as 
early as possible during the transition planning process but, at the 
latest, by the time each student determined to be eligible for 
vocational rehabilitation services leaves the school setting or, if the 
designated State unit is operating under an order of selection, before 
each eligible student able to be served under the order leaves the 
school setting.
    (b) Formal interagency agreement. The State plan must include 
information on a formal interagency agreement with the State educational 
agency that, at a minimum, provides for--
    (1) Consultation and technical assistance to assist educational 
agencies in planning for the transition of students with disabilities 
from school to post-school activities, including vocational 
rehabilitation services;
    (2) Transition planning by personnel of the designated State agency 
and educational agency personnel for students with disabilities that 
facilitates the development and completion of their individualized 
education programs (IEPs) under section 614(d) of the

[[Page 255]]

Individuals with Disabilities Education Act;
    (3) The roles and responsibilities, including financial 
responsibilities, of each agency, including provisions for determining 
State lead agencies and qualified personnel responsible for transition 
services; and
    (4) Procedures for outreach to and identification of students with 
disabilities who are in need of transition services. Outreach to these 
students should occur as early as possible during the transition 
planning process and must include, at a minimum, a description of the 
purpose of the vocational rehabilitation program, eligibility 
requirements, application procedures, and scope of services that may be 
provided to eligible individuals.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(11)(D) of the Act; 29 U.S.C. 721 (a)(11)(D))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.23  Requirements related to the statewide workforce investment
system.

    (a) Responsibilities as a partner of the One-Stop service delivery 
system. As a required partner in the One-Stop service delivery system 
(which is part of the statewide workforce investment system under Title 
I of the Workforce Investment Act of 1998), the designated State unit 
must carry out the following functions consistent with the Act, this 
part, Title I of the Workforce Investment Act of 1998, and the 
regulations in 20 CFR part 662:
    (1) Make available to participants through the One-Stop service 
delivery system the core services (as described in 20 CFR 662.240) that 
are applicable to the Program administered by the designated State unit 
under this part.
    (2) Use a portion of funds made available to the Program 
administered by the designated State unit under this part, consistent 
with the Act and this part, to--
    (i) Create and maintain the One-Stop service delivery system; and
    (ii) Provide core services (as described in 20 CFR 662.240).
    (3) Enter into a memorandum of understanding (MOU) with the Local 
Workforce Investment Board under section 117 of the Workforce Investment 
Act of 1998 relating to the operation of the One-Stop service delivery 
system that meets the requirements of section 121(c) of the Workforce 
Investment Act and 20 CFR 662.300, including a description of services, 
how the cost of the identified services and operating costs of the 
system will be funded, and methods for referrals.
    (4) Participate in the operation of the One-Stop service delivery 
system consistent with the terms of the MOU and the requirements of the 
Act and this part.
    (5) Provide representation on the Local Workforce Investment Board 
under section 117 of the Workforce Investment Act of 1998.
    (b) Cooperative agreements with One-Stop partners. (1) The State 
plan must assure that the designated State unit or the designated State 
agency enters into cooperative agreements with the other entities that 
are partners under the One-Stop service delivery system under Title I of 
the Workforce Investment Act of 1998 and replicates those agreements at 
the local level between individual offices of the designated State unit 
and local entities carrying out the One-Stop service delivery system or 
other activities through the statewide workforce investment system.
    (2) Cooperative agreements developed under paragraph (b)(1) of this 
section may provide for--
    (i) Intercomponent training and technical assistance regarding--
    (A) The availability and benefits of, and information on eligibility 
standards for, vocational rehabilitation services; and
    (B) The promotion of equal, effective and meaningful participation 
by individuals with disabilities in the One-Stop service delivery system 
and other workforce investment activities through the promotion of 
program accessibility consistent with the requirements of the Americans 
with Disabilities Act of 1990 and section 504 of the Act, the use of 
nondiscriminatory policies and procedures, and the provision

[[Page 256]]

of reasonable accommodations, auxiliary aids and services, and 
rehabilitation technology for individuals with disabilities;
    (ii) The use of information and financial management systems that 
link all of the partners of the One-Stop service delivery system to one 
another and to other electronic networks, including nonvisual electronic 
networks, and that relate to subjects such as employment statistics, job 
vacancies, career planning, and workforce investment activities;
    (iii) The use of customer service features such as common intake and 
referral procedures, customer databases, resource information, and human 
services hotlines;
    (iv) The establishment of cooperative efforts with employers to 
facilitate job placement and carry out other activities that the 
designated State unit and the employers determine to be appropriate;
    (v) The identification of staff roles, responsibilities, and 
available resources and specification of the financial responsibility of 
each partner of the One-Stop service delivery system with respect to 
providing and paying for necessary services, consistent with the 
requirements of the Act, this part, other Federal requirements, and 
State law; and
    (vi) The specification of procedures for resolving disputes among 
partners of the One-Stop service delivery system.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(11)(A) of the Act; 29 U.S.C. 721(a)(11)(A); 
Sections 121 and 134 of the Workforce Investment Act of 1998; 29 U.S.C. 
2841 and 2864)

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.24  Cooperation and coordination with other entities.

    (a) Interagency cooperation. The State plan must describe the 
designated State agency's cooperation with and use of the services and 
facilities of Federal, State, and local agencies and programs, including 
programs carried out by the Under Secretary for Rural Development of the 
Department of Agriculture and State use contracting programs, to the 
extent that those agencies and programs are not carrying out activities 
through the statewide workforce investment system.
    (b) Coordination with the Statewide Independent Living Council and 
independent living centers. The State plan must assure that the 
designated State unit, the Statewide Independent Living Council 
established under 34 CFR part 364, and the independent living centers 
established under 34 CFR part 366 have developed working relationships 
and coordinate their activities.
    (c) Cooperative agreement with recipients of grants for services to 
American Indians--(1) General. In applicable cases, the State plan must 
assure that the designated State agency has entered into a formal 
cooperative agreement with each grant recipient in the State that 
receives funds under part C of the Act (American Indian Vocational 
Rehabilitation Services).
    (2) Contents of formal cooperative agreement. The agreement required 
under paragraph (a)(1) of this section must describe strategies for 
collaboration and coordination in providing vocational rehabilitation 
services to American Indians who are individuals with disabilities, 
including--
    (i) Strategies for interagency referral and information sharing that 
will assist in eligibility determinations and the development of 
individualized plans for employment;
    (ii) Procedures for ensuring that American Indians who are 
individuals with disabilities and are living near a reservation or 
tribal service area are provided vocational rehabilitation services; and
    (iii) Provisions for sharing resources in cooperative studies and 
assessments, joint training activities, and other collaborative 
activities designed to improve the provision of services to American 
Indians who are individuals with disabilities.
    (d) Reciprocal referral services between two designated State units 
in the same State. If there is a separate designated State unit for 
individuals who are blind, the two designated State units must establish 
reciprocal referral services, use each other's services and facilities 
to the extent feasible, jointly plan activities to improve services in

[[Page 257]]

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.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 12(c) and 101(a)(11)(C), (E), and (F) of the Act; 
29 U.S.C. 709(c) and 721(a)(11) (C), (E), and (F))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



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.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



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) For purposes other than those specified in Sec. 361.60(b)(3)(i) 
and consistent with the requirements in Sec. 361.60(b)(3)(ii), the 
State includes in its State plan, and the Secretary approves, 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: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.27  Shared funding and administration of joint programs.

    (a) If the State plan provides for the designated State agency to 
share funding and administrative responsibility with another State 
agency or local public agency to carry out a joint program to provide 
services to individuals with disabilities, the State must submit to the 
Secretary for approval a plan that describes its shared funding and 
administrative arrangement.
    (b) The plan under paragraph (a) of this section must include--
    (1) A description of the nature and scope of the joint program;
    (2) The services to be provided under the joint program;
    (3) The respective roles of each participating agency in the 
administration and provision of services; and
    (4) The share of the costs to be assumed by each agency.
    (c) If a proposed joint program does not comply with the 
statewideness requirement in Sec. 361.25, the State unit must 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)(2)(A) of the Act; 29 U.S.C. 721(a)(2)(A))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]

[[Page 258]]



Sec. 361.28  Third-party cooperative arrangements involving funds from other
public agencies.

    (a) The designated State unit may enter 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, if the 
designated State unit ensures 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 must 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 12(c) of the Act; 29 U.S.C. 709(c))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.29  Statewide assessment; annual estimates; annual State goals and
priorities; strategies; and progress reports.

    (a) Comprehensive statewide assessment. (1) The State plan must 
include--
    (i) The results of a comprehensive, statewide assessment, jointly 
conducted by the designated State unit and the State Rehabilitation 
Council (if the State unit has a Council) every 3 years describing the 
rehabilitation needs of individuals with disabilities residing within 
the State, particularly the vocational rehabilitation services needs 
of--
    (A) Individuals with the most significant disabilities, including 
their need for supported employment services;
    (B) Individuals with disabilities who are minorities and individuals 
with disabilities who have been unserved or underserved by the 
vocational rehabilitation program carried out under this part; and
    (C) Individuals with disabilities served through other components of 
the statewide workforce investment system as identified by those 
individuals and personnel assisting those individuals through the 
components of the system; and
    (ii) An assessment of the need to establish, develop, or improve 
community rehabilitation programs within the State.
    (2) The State plan must assure that the State will submit to the 
Secretary a report containing information regarding updates to the 
assessments under paragraph (a) of this section for any year in which 
the State updates the assessments.
    (b) Annual estimates. The State plan must include, and must assure 
that the State will annually submit a report to the Secretary that 
includes, State estimates of--
    (1) The number of individuals in the State who are eligible for 
services under this part;
    (2) The number of eligible individuals who will receive services 
provided with funds provided under part B of Title I of the Act and 
under part B of Title VI of the Act, including, if the designated State 
agency uses an order of selection in accordance with Sec. 361.36, 
estimates of the number of individuals to be served under each priority 
category within the order; and
    (3) The costs of the services described in paragraph (b)(1) of this 
section, including, if the designated State agency uses an order of 
selection, the service costs for each priority category within the 
order.
    (c) Goals and priorities--(1) In general. The State plan must 
identify the goals

[[Page 259]]

and priorities of the State in carrying out the program.
    (2) Council. The goals and priorities must be jointly developed, 
agreed to, reviewed annually, and, as necessary, revised by the 
designated State unit and the State Rehabilitation Council, if the State 
unit has a Council.
    (3) Submission. The State plan must assure that the State will 
submit to the Secretary a report containing information regarding 
revisions in the goals and priorities for any year in which the State 
revises the goals and priorities.
    (4) Basis for goals and priorities. The State goals and priorities 
must be based on an analysis of--
    (i) The comprehensive statewide assessment described in paragraph 
(a) of this section, including any updates to the assessment;
    (ii) The performance of the State on the standards and indicators 
established under section 106 of the Act; and
    (iii) Other available information on the operation and the 
effectiveness of the vocational rehabilitation program carried out in 
the State, including any reports received from the State Rehabilitation 
Council under Sec. 361.17(h) and the findings and recommendations from 
monitoring activities conducted under section 107 of the Act.
    (5) Service and outcome goals for categories in order of selection. 
If the designated State agency uses an order of selection in accordance 
with Sec. 361.36, the State plan must identify the State's service and 
outcome goals and the time within which these goals may be achieved for 
individuals in each priority category within the order.
    (d) Strategies. The State plan must describe the strategies the 
State will use to address the needs identified in the assessment 
conducted under paragraph (a) of this section and achieve the goals and 
priorities identified in paragraph (c) of this section, including--
    (1) The methods to be used to expand and improve services to 
individuals with disabilities, including how a broad range of assistive 
technology services and assistive technology devices will be provided to 
those individuals at each stage of the rehabilitation process and how 
those services and devices will be provided to individuals with 
disabilities on a statewide basis;
    (2) Outreach procedures to identify and serve individuals with 
disabilities who are minorities and individuals with disabilities who 
have been unserved or underserved by the vocational rehabilitation 
program;
    (3) As applicable, the plan of the State for establishing, 
developing, or improving community rehabilitation programs;
    (4) Strategies to improve the performance of the State with respect 
to the evaluation standards and performance indicators established 
pursuant to section 106 of the Act; and
    (5) Strategies for assisting other components of the statewide 
workforce investment system in assisting individuals with disabilities.
    (e) Evaluation and reports of progress. (1) The State plan must 
include--
    (i) The results of an evaluation of the effectiveness of the 
vocational rehabilitation program; and
    (ii) A joint report by the designated State unit and the State 
Rehabilitation Council, if the State unit has a Council, to the 
Secretary on the progress made in improving the effectiveness of the 
program from the previous year. This evaluation and joint report must 
include--
    (A) An evaluation of the extent to which the goals and priorities 
identified in paragraph (c) of this section were achieved;
    (B) A description of the strategies that contributed to the 
achievement of the goals and priorities;
    (C) To the extent to which the goals and priorities were not 
achieved, a description of the factors that impeded that achievement; 
and
    (D) An assessment of the performance of the State on the standards 
and indicators established pursuant to section 106 of the Act.
    (2) The State plan must assure that the designated State unit and 
the State Rehabilitation Council, if the State unit has a Council, will 
jointly

[[Page 260]]

submit to the Secretary an annual report that contains the information 
described in paragraph (e)(1) of this section.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(15) of the Act; 29 U.S.C. 721(a)(15))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.30  Services to American Indians.

    The State plan must assure that the designated State agency provides 
vocational rehabilitation services to American Indians who are 
individuals with disabilities residing in the State to the same extent 
as the designated State agency provides vocational rehabilitation 
services to other significant populations of individuals with 
disabilities residing in the State.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(13) and 121(b)(3) of the Act; 29 U.S.C. 
721(a)(13) and 741(b)(3))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.31  Cooperative agreements with private nonprofit organizations.

    The State plan must describe the manner in which cooperative 
agreements with private nonprofit vocational rehabilitation service 
providers will be established.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(24)(B); 29 U.S.C. 721(a)(24)(B))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.32  Use of profitmaking organizations for on-the-job training in connection
with selected projects.

    The State plan must assure that the designated State agency has the 
authority to enter into contracts with for-profit organizations for the 
purpose of providing, as vocational rehabilitation services, on-the-job 
training and related programs for individuals with disabilities under 
the Projects With Industry program, 34 CFR part 379, if the designated 
State agency has determined that for-profit agencies are better 
qualified to provide needed vocational rehabilitation services than 
nonprofit agencies and organizations.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(24)(A) of the Act; 29 U.S.C. 721(a)(24)(A))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.33  [Reserved]



Sec. 361.34  Supported employment State plan supplement.

    (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 submitted 
under this part.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(22) and 625(a) of the Act; 29 U.S.C. 
721(a)(22) and 795(k))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.35  Innovation and expansion activities.

    (a) The State plan must assure that the State will reserve and use a 
portion of the funds allotted to the State under section 110 of the 
Act--
    (1) For the development and implementation of innovative approaches 
to expand and improve the provision of vocational rehabilitation 
services to individuals with disabilities, particularly individuals with 
the most significant disabilities, consistent with the findings of the 
comprehensive, statewide assessment of the rehabilitation needs of 
individuals with disabilities under Sec. 361.29(a) and the State's 
goals and priorities under Sec. 361.29(c); and
    (2) To support the funding of--
    (i) The State Rehabilitation Council, if the State has a Council, 
consistent with the resource plan identified in Sec. 361.17(i); and

[[Page 261]]

    (ii) The Statewide Independent Living Council, consistent with the 
plan prepared under 34 CFR 364.21(i).
    (b) The State plan must--
    (1) Describe how the reserved funds will be used; and
    (2) Include, on an annual basis, a report describing how the 
reserved funds were used during the preceding year.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(18) of the Act; 29 U.S.C. 721(a)(18))

[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]



Sec. 361.36  Ability to serve all eligible individuals; order of selection
for services.

    (a) General provisions. (1) The designated State unit either must be 
able to provide the full range of services listed in section 103(a) of 
the Act and Sec. 361.48, as appropriate, to all eligible individuals 
or, in the event that vocational rehabilitation services cannot be 
provided to all eligible individuals in the State who apply for the 
services, include in the State plan the order to be followed in 
selecting eligible individuals to be provided vocational rehabilitation 
services.
    (2) The ability of the designated State unit to provide the full 
range of vocational rehabilitation services to all eligible individuals 
must be supported by a determination that satisfies the requirements of 
paragraph (b) or (c) of this section and a determination that, on the 
basis of the designated State unit's projected fiscal and personnel 
resources and its assessment of the rehabilitation needs of individuals 
with significant disabilities within the State, it can--
    (i) Continue to provide services to all individuals currently 
receiving services;
    (ii) Provide assessment services to all individuals expected to 
apply for services in the next fiscal year;
    (iii) Provide services to all individuals who are expected to be 
determined eligible in the next fiscal year; and
    (iv) Meet all program requirements.
    (3) If the designated State unit is unable to provide the full range 
vocational rehabilitation services to all eligible individuals in the 
State who apply for the services, the State plan must--
    (i) Show the order to be followed in selecting eligible individuals 
to be provided vocational rehabilitation services;
    (ii) Provide a justification for the order of selection;
    (iii) Identify service and outcome goals and the time within which 
the goals may be achieved for individuals in each priority category 
within the order, as required under Sec. 361.29(c)(5); and
    (iv) Assure that--
    (A) In accordance with criteria established by the State for the 
order of selection, individuals with the most significant disabilities 
will be selected first for the provision of vocational rehabilitation 
services; and
    (B) Individuals who do not meet the order of selection criteria will 
have access to services provided through the information and referral 
system established under Sec. 361.37.
    (b) Basis for assurance that services can be provided to all 
eligible individuals. (1) For a designated State unit that determined, 
for the current fiscal year and the preceding fiscal year, that it is 
able to provide the full range of services, as appropriate, to all 
eligible individuals, the State unit, during the current fiscal and 
preceding fiscal year, must have 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 plans 
for employment for individuals determined eligible for vocational 
rehabilitation services, or the provision of services for eligible 
individuals for whom individualized plans for employment have been 
developed.
    (2) For a designated State unit that was unable to provide the full 
range of

[[Page 262]]

services to all eligible individuals during the current or preceding 
fiscal year or that has not met the requirements in paragraph (b)(1) of 
this section, the determination that the designated State unit is able 
to provide the full range of vocational rehabilitation services to all 
eligible individuals in the next fiscal year must be based on--
    (i) Circumstances that have changed that will allow the designated 
State unit to meet the requirements of paragraph (a)(2) of this section 
in the next fiscal year, including--
    (A) An estimate of the number of and projected costs of serving, in 
the next fiscal year, individuals with existing individualized plans for 
employment;
    (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 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 
(b)(2)(i)(A) through (C) of this section and the resources identified in 
paragraph (b)(2)(i)(D) of this section and an explanation of any 
projected increases or decreases in these costs and resources; and
    (iii) A determination 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 (b)(2)(i)(A) 
through (C) of this section to ensure the provision of the full range of 
services, as appropriate, to all eligible individuals.
    (c) Determining need for establishing and implementing an order of 
selection. (1) The designated State unit must 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 must 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, as 
described in paragraph (a)(2) of this section.
    (3) If a DSU establishes an order of selection, but determines that 
it does not need to implement that order at the beginning of the fiscal 
year, it must continue to meet the requirements of paragraph (a)(2) of 
this section, or it must implement the order of selection by closing one 
or more priority categories.
    (d) 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 significant 
disability'' in section 7(21)(A) of the Act and Sec. 361.5(b)(31).
    (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, 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.
    (e) Administrative requirements. In administering the order of 
selection, the designated State unit must--
    (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

[[Page 263]]

individualized plan for employment prior to the effective date of the 
order of selection, irrespective of the severity of the individual's 
disability; and
    (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 must renegotiate these funding 
arrangements so th