[Title 34 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
 
          Title 34

Education


________________________

Parts 300 to 399

                         Revised as of July 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as 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........................     571
      Alphabetical List of Agencies Appearing in the CFR......     591
      List of CFR Sections Affected...........................     601

[[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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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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``[RESERVED]'' TERMINOLOGY

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``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
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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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this volume.

[[Page vii]]

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INQUIRIES

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    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    July 1, 2017.







[[Page ix]]



                               THIS TITLE

    Title 34--Education is composed of four volumes. The parts in these 
volumes are arranged in the following order: Parts 1-299, parts 300-399, 
parts 400-679, and part 680 to end. The contents of these volumes 
represent all regulations codified under this title of the CFR as of 
July 1, 2017.

    For this volume, Gabrielle E. Burns was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[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..............         174
304             Service obligations under special 
                    education--personnel development to 
                    improve services and results for 
                    children with disabilities..............         278
350             Disability and Rehabilitation Research 
                    Projects and Centers Program............         281
356             Disability and rehabilitation research: 
                    Research fellowships....................         296
359             Disability and rehabilitation research: 
                    Special projects and demonstrations for 
                    spinal cord injuries....................         299
361             State Vocational Rehabilitation Services 
                    Program.................................         302
363             The State Supported Employment Services 
                    Program.................................         414
364             State Independent Living Services Program 
                    and Centers for Independent Living 
                    Program: General provisions.............         423
365             State independent living services...........         442
366             Centers for independent living..............         446
367             Independent living services for older 
                    individuals who are blind...............         466
369

[Reserved]

370             Client Assistance Program...................         478
371             American Indian Vocational Rehabilitation 
                    Services................................         489
373             Rehabilitation National Activities Program..         508
376-377

[Reserved]

379-380

[Reserved]

381             Protection and advocacy of individual rights         515
385             Rehabilitation training.....................         521

[[Page 6]]

386             Rehabilitation training: Rehabilitation 
                    long-term training......................         529
387             Innovative rehabilitation training..........         537
388-389

[Reserved]

390             Rehabilitation short-term training..........         539
395             Vending facility program for the blind on 
                    Federal and other property..............         540
396             Training of interpreters for individuals who 
                    are deaf or hard of hearing and 
                    individuals who are deaf-blind..........         556
397             Limitations on use of subminimum wage.......         560
398-399

[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 [Reserved]
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 [Reserved]
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 [Reserved]
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.
300.647 Determining significant 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--Local Educational Agency Maintenance of Effort 
          Calculation Examples
Appendix F to Part 300--Index for IDEA--Part B Regulations (34 CFR Part 
          300)

    Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474, 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

[[Page 11]]

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

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

[[Page 12]]

in the major life functions of that child.

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



Sec.  300.7  Charter school.

    Charter school has the meaning given the term in section 4310(2) 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(2))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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.

[[Page 13]]

    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal 
circumstances.
    (D) A general pervasive mood of unhappiness or depression.
    (E) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (ii) 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

[[Page 14]]

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]



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 at 72 FR 61306, Oct. 30, 2007; 
73 FR 73027, Dec. 1, 2008]



Sec.  300.10  [Reserved]



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

[[Page 15]]

books, periodicals, documents, and other related materials.

(Authority: 20 U.S.C. 1401(7))



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 Part A 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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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  [Reserved]



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))

[[Page 16]]



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
    (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 'English 
learner' in section 8101 of the ESEA.

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

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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

[[Page 17]]

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--
    (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))

[[Page 18]]



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 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;

[[Page 19]]

    (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 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--

[[Page 20]]

    (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  [Reserved]



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, 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

[[Page 21]]

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 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))

[[Page 22]]



                       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--
    (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.

[[Page 23]]

    (iv) As used in paragraphs (a)(3)(i) through (iii) of this section, 
the term regular high school diploma means the standard high school 
diploma awarded to the preponderance of students in the State that is 
fully aligned with State standards, or a higher diploma, except that a 
regular high school diploma shall not be aligned to the alternate 
academic achievement standards described in section 1111(b)(1)(E) of the 
ESEA. A regular high school diploma does not include a recognized 
equivalent of a diploma, such as a general equivalency diploma, 
certificate of completion, certificate of attendance, or similar lesser 
credential.
    (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) and 7801(43))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

                         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 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.  300.39;
    (2) Related services under Sec.  300.34; or
    (3) Supplementary aids and services under Sec. Sec.  300.42 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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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

[[Page 24]]

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, 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))

[[Page 25]]



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 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

[[Page 26]]

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 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.  300.39 (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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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;

[[Page 27]]

    (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]



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

[[Page 28]]

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 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

[[Page 29]]

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
    (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

[[Page 30]]

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-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

[[Page 31]]

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))



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-

[[Page 32]]

placed private school children with disabilities do not have to meet the 
special education teacher qualification requirements in Sec.  
300.156(c).
    (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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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.
    (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

[[Page 33]]

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 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.

[[Page 34]]

    (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.  300.156(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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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
    (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

[[Page 35]]

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
    (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

[[Page 36]]

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
    (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

[[Page 37]]

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;
    (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:

[[Page 38]]

    (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.  300.42 relating to supplementary aids and services, and 
Sec.  300.43 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 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

[[Page 39]]

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) Prior to accessing a child's or parent's public benefits or 
insurance for the first time, and after providing notification to the 
child's parents consistent with paragraph (d)(2)(v) of this section, 
must obtain written, parental consent that--
    (A) Meets the requirements of Sec.  99.30 of this title and Sec.  
300.622, which consent must specify the personally identifiable 
information that may be disclosed (e.g., records or information about 
the services that may be provided to a particular child), the purpose of 
the disclosure (e.g., billing for services under part 300), and the 
agency to which the disclosure may be made (e.g., the State's public 
benefits or insurance program (e.g., Medicaid)); and
    (B) Specifies that the parent understands and agrees that the public 
agency may access the parent's or child's public benefits or insurance 
to pay for services under part 300.
    (v) Prior to accessing a child's or parent's public benefits or 
insurance for the first time, and annually thereafter, must provide 
written notification, consistent with Sec.  300.503(c), to the child's 
parents, that includes--
    (A) A statement of the parental consent provisions in paragraphs 
(d)(2)(iv)(A) and (B) of this section;
    (B) A statement of the ``no cost'' provisions in paragraphs 
(d)(2)(i) through (iii) of this section;
    (C) A statement that the parents have the right under 34 CFR part 99 
and part 300 to withdraw their consent to disclosure of their child's 
personally identifiable information to the agency responsible for the 
administration of the State's public benefits or insurance program 
(e.g., Medicaid) at any time; and
    (D) A statement that the withdrawal of consent or refusal to provide 
consent under 34 CFR part 99 and part 300 to disclose personally 
identifiable information to the agency responsible for the 
administration of the State's public benefits or insurance program 
(e.g., Medicaid) 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 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

[[Page 40]]

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 2 CFR 200.307
    (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))

[71 FR 46753, Aug. 14, 2006, as amended at 78 FR 10537, Feb. 14, 2013; 
79 FR 76096, Dec. 19, 2014; 82 FR 29759, June 30, 2017]

                   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. (1) 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--
    (i) Has obtained full State certification as a special education 
teacher (including certification obtained through an alternate route to 
certification as a special educator, if such alternate route meets 
minimum requirements described in 34 CFR 200.56(a)(2)(ii) as such 
section was in effect on November 28, 2008), 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, the teacher 
must meet the certification or licensing requirements, if any, set forth 
in the State's public charter school law;
    (ii) Has not had special education certification or licensure 
requirements

[[Page 41]]

waived on an emergency, temporary, or provisional basis; and
    (iii) Holds at least a bachelor's degree.
    (2) A teacher will be considered to meet the standard in paragraph 
(c)(1)(i) of this section if that teacher is participating in an 
alternate 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 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 (c)(2)(i) of this section are 
met.
    (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 personnel who meet 
the applicable requirements described in paragraph (c) of this section 
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 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 meet the applicable requirements 
described in paragraph (c) of this section, 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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]



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 long-term goals and measurements of 
interim progress for children with disabilities under section 
1111(c)(4)(A)(i) of the ESEA.
    (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 measurements of interim progress for 
children with disabilities under section 1111(c)(4)(A)(i)(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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29760, June 30, 2017]



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-

[[Page 42]]

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 aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. (1) If a State has adopted alternate academic achievement 
standards for children with disabilities who are students with the most 
significant cognitive disabilities as permitted in section 1111(b)(1)(E) 
of the ESEA, the State (or, in the case of a district-wide assessment, 
an LEA) must develop and implement alternate assessments and guidelines 
for the participation in alternate assessments of those children with 
disabilities 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 children with 
disabilities who are students with the most significant cognitive 
disabilities under title I of the ESEA, the alternate assessments and 
guidelines in paragraph (c)(1) of this section must--
    (i) Be aligned with the challenging State academic content standards 
under section 1111(b)(1) of the ESEA and alternate academic achievement 
standards under section 1111(b)(1)(E) of the ESEA; and
    (ii) Measure the achievement of children with disabilities who are 
students with the most significant cognitive disabilities against those 
standards.
    (3) Consistent with section 1111(b)(1)(E)(ii) of the ESEA and 34 CFR 
200.6(c)(6), a State may not adopt modified academic achievement 
standards or any other alternate academic achievement standards that do 
not meet the requirements in section 1111(b)(1)(E) of the ESEA for any 
children with disabilities under section 602(3) of the IDEA.
    (d) Explanation to IEP Teams. A State (or in the case of a district-
wide assessment, an LEA) must--
    (1) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of State and local policies on a student's education 
resulting from taking an alternate assessment aligned with alternate 
academic achievement standards, such as how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma; and
    (2) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment aligned with alternate 
academic achievement standards from attempting to complete the 
requirements 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 using an alternate assessment aligned with alternate academic 
achievement standards under the State's guidelines in paragraph (c)(1) 
of this section are informed, consistent with 34 CFR 200.2(e), that 
their child's achievement will be measured based on alternate academic 
achievement standards, and of how participation in such assessments may 
delay or otherwise affect the student from completing the requirements 
for a regular high school diploma.
    (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:

[[Page 43]]

    (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 in school years prior to 2017-2018.
    (3) The number of children with disabilities, if any, participating 
in alternate assessments aligned with modified academic achievement 
standards in school years prior to 2016-2017.
    (4) The number of children with disabilities who are students with 
the most significant cognitive disabilities participating in alternate 
assessments aligned with 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 (prior to 2017-2018), 
alternate assessments based on modified academic achievement standards 
(prior to 2016-2017), and alternate assessments aligned with 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, as amended at 80 FR 50785, Aug. 21, 2015; 82 
FR 29760, June 30, 2017]



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 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.

[[Page 44]]

    (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
    (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

[[Page 45]]

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-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

[[Page 46]]

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.
    (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

[[Page 47]]

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 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;

[[Page 48]]

    (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 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--

[[Page 49]]

    (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
    (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.

[[Page 50]]

    (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 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.

[[Page 51]]

    (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 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.

[[Page 52]]

    (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 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--

[[Page 53]]

    (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 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;

[[Page 54]]

    (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 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))

[[Page 55]]

                          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 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))

[[Page 56]]



Sec.  300.203  Maintenance of effort.

    (a) Eligibility standard. (1) For purposes of establishing the LEA's 
eligibility for an award for a fiscal year, the SEA must determine that 
the LEA budgets, for the education of children with disabilities, at 
least the same amount, from at least one of the following sources, as 
the LEA spent for that purpose from the same source for the most recent 
fiscal year for which information is available:
    (i) Local funds only;
    (ii) The combination of State and local funds;
    (iii) Local funds only on a per capita basis; or
    (iv) The combination of State and local funds on a per capita basis.
    (2) When determining the amount of funds that the LEA must budget to 
meet the requirement in paragraph (a)(1) of this section, the LEA may 
take into consideration, to the extent the information is available, the 
exceptions and adjustment provided in Sec. Sec.  300.204 and 300.205 
that the LEA:
    (i) Took in the intervening year or years between the most recent 
fiscal year for which information is available and the fiscal year for 
which the LEA is budgeting; and
    (ii) Reasonably expects to take in the fiscal year for which the LEA 
is budgeting.
    (3) 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 may not be considered in determining whether 
an LEA meets the standard in paragraph (a)(1) of this section.
    (b) Compliance standard. (1) 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.
    (2) An LEA meets this standard if it does not reduce the level of 
expenditures for the education of children with disabilities made by the 
LEA from at least one of the following sources below the level of those 
expenditures from the same source for the preceding fiscal year, except 
as provided in Sec. Sec.  300.204 and 300.205:
    (i) Local funds only;
    (ii) The combination of State and local funds;
    (iii) Local funds only on a per capita basis; or
    (iv) The combination of State and local funds on a per capita basis.
    (3) 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 may not be considered in determining whether 
an LEA meets the standard in paragraphs (b)(1) and (2) of this section.
    (c) Subsequent years. (1) If, in the fiscal year beginning on July 
1, 2013 or July 1, 2014, an LEA fails to meet the requirements of Sec.  
300.203 in effect at that time, the level of expenditures required of 
the LEA for the fiscal year subsequent to the year of the failure is the 
amount that would have been required in the absence of that failure, not 
the LEA's reduced level of expenditures.
    (2) If, in any fiscal year beginning on or after July 1, 2015, an 
LEA fails to meet the requirement of paragraph (b)(2)(i) or (iii) of 
this section and the LEA is relying on local funds only, or local funds 
only on a per capita basis, to meet the requirements of paragraph (a) or 
(b) of this section, the level of expenditures required of the LEA for 
the fiscal year subsequent to the year of the failure is the amount that 
would have been required under paragraph (b)(2)(i) or (iii) in the 
absence of that failure, not the LEA's reduced level of expenditures.
    (3) If, in any fiscal year beginning on or after July 1, 2015, an 
LEA fails to meet the requirement of paragraph (b)(2)(ii) or (iv) of 
this section and the LEA is relying on the combination of State and 
local funds, or the combination of State and local funds on a per capita 
basis, to meet the requirements of paragraph (a) or (b) of this section, 
the level of expenditures required of the LEA for the fiscal year 
subsequent to the year of the failure is the amount

[[Page 57]]

that would have been required under paragraph (b)(2)(ii) or (iv) in the 
absence of that failure, not the LEA's reduced level of expenditures.
    (d) Consequence of failure to maintain effort. If an LEA fails to 
maintain its level of expenditures for the education of children with 
disabilities in accordance with paragraph (b) of this section, the SEA 
is liable in a recovery action under section 452 of the General 
Education Provisions Act (20 U.S.C. 1234a) to return to the Department, 
using non-Federal funds, an amount equal to the amount by which the LEA 
failed to maintain its level of expenditures in accordance with 
paragraph (b) of this section in that fiscal year, or the amount of the 
LEA's Part B subgrant in that fiscal year, whichever is lower. (Approved 
by the Office of Management and Budget under control number 1820-0600)

(Authority: 20 U.S.C. 1413(a)(2)(A), Pub. L. 113-76, 128 Stat. 5, 394 
(2014), Pub. L. 113-235, 128 Stat. 2130, 2499 (2014))

[80 FR 23666, Apr. 28, 2015]



Sec.  300.204  Exception to maintenance of effort.

    Notwithstanding the restriction in Sec.  300.203(b), 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.
    (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))

[71 FR 46753, Aug. 14, 2006, as amended at 80 FR 23667, Apr. 28, 2015]



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(b), 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(b) 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

[[Page 58]]

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))

[71 FR 46753, Aug. 14, 2006, as amended at 80 FR 23667, Apr. 28, 2015]



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 the Act are appropriately and adequately prepared, subject to the 
requirements of Sec.  300.156 (related to personnel qualifications) and 
section 2102(b) of the ESEA.

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

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

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29761, June 30, 2017]



Sec.  300.208  Permissive use of funds.

    (a) Uses. Notwithstanding Sec. Sec.  300.202, 300.203(b), 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))

[71 FR 46753, Aug. 14, 2006, as amended at 80 FR 23667, Apr. 28, 2015]

[[Page 59]]



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 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

[[Page 60]]

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--
    (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

[[Page 61]]

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 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

[[Page 62]]

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 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.

[[Page 63]]

    (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 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

[[Page 64]]

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 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

[[Page 65]]

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]

                      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

[[Page 66]]

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 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,

[[Page 67]]

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 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.

[[Page 68]]

    (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 as such section was in effect on the day before the 
date of enactment of the Every Student Succeeds Act (December 9, 2015));
    (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--
    (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; 
82 FR 29761, June 30, 2017]

 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

[[Page 69]]

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
    (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

[[Page 70]]

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 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

[[Page 71]]

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;
    (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

[[Page 72]]

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 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

[[Page 73]]

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, 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

[[Page 74]]

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--
    (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))

[[Page 75]]

                           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 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

[[Page 76]]

    (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 
300.114 (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))

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29761, June 30, 2017]



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))

[[Page 77]]



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 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))

[[Page 78]]



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.
    (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))

[[Page 79]]



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--
    (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

[[Page 80]]

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 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.

[[Page 81]]

    (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.
    (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.

[[Page 82]]

    (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 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--

[[Page 83]]

    (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 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;

[[Page 84]]

    (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;
    (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

[[Page 85]]

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;
    (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))

[[Page 86]]



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, 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

[[Page 87]]

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;
    (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.

[[Page 88]]

    (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 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))

[[Page 89]]



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 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.

[[Page 90]]

    (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 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

[[Page 91]]

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 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.

[[Page 92]]

    (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 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))

[[Page 93]]



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))



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).

[[Page 94]]

    (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 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.

[[Page 95]]

    (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 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

[[Page 96]]

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.
    (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.

[[Page 97]]

    (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 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, and 81 and 2 CFR part 200

[[Page 98]]

to monitor and enforce the requirements of the Act, including the 
imposition of special or high-risk conditions under 2 CFR 200.207 and 
3474.10.

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

[79 FR 76097, Dec. 19, 2014]

                     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 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

[[Page 99]]

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 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))

[[Page 100]]



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 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

[[Page 101]]

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.
    (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--

[[Page 102]]

    (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 removals from 
placement, including suspensions and expulsions.
    (b) Methodology. The State must apply the methods in Sec.  300.647 
to determine if significant disproportionality based on race and 
ethnicity is occurring in the State and the LEAs of the State under 
paragraph (a) of this section.
    (c) 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, including 
disciplinary removals of such children, in accordance with paragraphs 
(a) and (b) of this section, the State or the Secretary of the Interior 
must--
    (1) Provide for the annual review and, if appropriate, revision of 
the policies, practices, and procedures used in identification or 
placement in particular education settings, including disciplinary 
removals, to ensure that the policies, practices, and procedures comply 
with the requirements of the Act.
    (2) Require the LEA to publicly report on the revision of policies, 
practices, and procedures described under paragraph (c)(1) of this 
section consistent with the requirements of the Family Educational 
Rights and Privacy Act, its implementing regulations in 34 CFR part 99, 
and Section 618(b)(1) of the Act.
    (d) Comprehensive coordinated early intervening services. Except as 
provided in paragraph (e) of this section, the State or the Secretary of 
the Interior shall require any LEA identified under paragraphs (a) and 
(b) of this section to reserve the maximum amount of funds

[[Page 103]]

under section 613(f) of the Act to provide comprehensive coordinated 
early intervening services to address factors contributing to the 
significant disproportionality.
    (1) In implementing comprehensive coordinated early intervening 
services an LEA--
    (i) May carry out activities that include professional development 
and educational and behavioral evaluations, services, and supports.
    (ii) Must identify and address the factors contributing to the 
significant disproportionality, which may include, among other 
identified factors, a lack of access to scientifically based 
instruction; economic, cultural, or linguistic barriers to appropriate 
identification or placement in particular educational settings; 
inappropriate use of disciplinary removals; lack of access to 
appropriate diagnostic screenings; differences in academic achievement 
levels; and policies, practices, or procedures that contribute to the 
significant disproportionality.
    (iii) Must address a policy, practice, or procedure it identifies as 
contributing to the significant disproportionality, including a policy, 
practice or procedure that results in a failure to identify, or the 
inappropriate identification of, a racial or ethnic group (or groups).
    (2) An LEA may use funds reserved for comprehensive coordinated 
early intervening services to serve children from age 3 through grade 
12, particularly, but not exclusively, children in those groups that 
were significantly overidentified under paragraph (a) or (b) of this 
section, including--
    (i) Children 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; and
    (ii) Children with disabilities.
    (3) An LEA may not limit the provision of comprehensive coordinated 
early intervening services under this paragraph to children with 
disabilities.
    (e) Exception to comprehensive coordinated early intervening 
services. The State or the Secretary of the Interior shall not require 
any LEA that serves only children with disabilities identified under 
paragraphs (a) and (b) of this section to reserve funds to provide 
comprehensive coordinated early intervening services.
    (f) Rule of construction. Nothing in this section authorizes a State 
or an LEA to develop or implement policies, practices, or procedures 
that result in actions that violate the requirements of this part, 
including requirements related to child find and ensuring that a free 
appropriate public education is available to all eligible children with 
disabilities.

(Authority: 20 U.S.C. 1413(f); 20 U.S.C. 1418(d))

[81 FR 92463, Dec. 19, 2016]



Sec.  300.647  Determining significant disproportionality.

    (a) Definitions. (1) Alternate risk ratio is a calculation performed 
by dividing the risk of a particular outcome for children in one racial 
or ethnic group within an LEA by the risk of that outcome for children 
in all other racial or ethnic groups in the State.
    (2) Comparison group consists of the children in all other racial or 
ethnic groups within an LEA or within the State, when reviewing a 
particular racial or ethnic group within an LEA for significant 
disproportionality.
    (3) Minimum cell size is the minimum number of children experiencing 
a particular outcome, to be used as the numerator when calculating 
either the risk for a particular racial or ethnic group or the risk for 
children in all other racial or ethnic groups.
    (4) Minimum n-size is the minimum number of children enrolled in an 
LEA with respect to identification, and the minimum number of children 
with disabilities enrolled in an LEA with respect to placement and 
discipline, to be used as the denominator when calculating either the 
risk for a particular racial or ethnic group or the risk for children in 
all other racial or ethnic groups.
    (5) Risk is the likelihood of a particular outcome (identification, 
placement, or disciplinary removal) for a specified racial or ethnic 
group (or groups), calculated by dividing the

[[Page 104]]

number of children from a specified racial or ethnic group (or groups) 
experiencing that outcome by the total number of children from that 
racial or ethnic group or groups enrolled in the LEA.
    (6) Risk ratio is a calculation performed by dividing the risk of a 
particular outcome for children in one racial or ethnic group within an 
LEA by the risk for children in all other racial and ethnic groups 
within the LEA.
    (7) Risk ratio threshold is a threshold, determined by the State, 
over which disproportionality based on race or ethnicity is significant 
under Sec.  300.646(a) and (b).
    (b) Significant disproportionality determinations. In determining 
whether significant disproportionality exists in a State or LEA under 
Sec.  300.646(a) and (b)--
    (1)(i) The State must set a:
    (A) Reasonable risk ratio threshold;
    (B) Reasonable minimum cell size;
    (C) Reasonable minimum n-size; and
    (D) Standard for measuring reasonable progress if a State uses the 
flexibility described in paragraph (d)(2) of this section.
    (ii) The State may, but is not required to, set the standards set 
forth in paragraph (b)(1)(i) of this section at different levels for 
each of the categories described in paragraphs (b)(3) and (4) of this 
section.
    (iii) The standards set forth in paragraph (b)(1)(i) of this 
section:
    (A) Must be based on advice from stakeholders, including State 
Advisory Panels, as provided under section 612(a)(21)(D)(iii) of the 
Act; and
    (B) Are subject to monitoring and enforcement for reasonableness by 
the Secretary consistent with section 616 of the Act.
    (iv) When monitoring for reasonableness under paragraph 
(b)(1)(iii)(B) of this section, the Department finds that the following 
are presumptively reasonable:
    (A) A minimum cell size under paragraph (b)(1)(i)(B) of this section 
no greater than 10; and
    (B) A minimum n-size under paragraph (b)(1)(i)(C) of this section no 
greater than 30.
    (2) The State must apply the risk ratio threshold or thresholds 
determined in paragraph (b)(1) of this section to risk ratios or 
alternate risk ratios, as appropriate, in each category described in 
paragraphs (b)(3) and (4) of this section and the following racial and 
ethnic groups:
    (i) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only;
    (ii) American Indian or Alaska Native;
    (iii) Asian;
    (iv) Black or African American;
    (v) Native Hawaiian or Other Pacific Islander;
    (vi) White; and
    (vii) Two or more races.
    (3) Except as provided in paragraphs (b)(5) and (c) of this section, 
the State must calculate the risk ratio for each LEA, for each racial 
and ethnic group in paragraph (b)(2) of this section with respect to:
    (i) The identification of children ages 3 through 21 as children 
with disabilities; and
    (ii) The identification of children ages 3 through 21 as children 
with the following impairments:
    (A) Intellectual disabilities;
    (B) Specific learning disabilities;
    (C) Emotional disturbance;
    (D) Speech or language impairments;
    (E) Other health impairments; and
    (F) Autism.
    (4) Except as provided in paragraphs (b)(5) and (c) of this section, 
the State must calculate the risk ratio for each LEA, for each racial 
and ethnic group in paragraph (b)(2) of this section with respect to the 
following placements into particular educational settings, including 
disciplinary removals:
    (i) For children with disabilities ages 6 through 21, inside a 
regular class less than 40 percent of the day;
    (ii) For children with disabilities ages 6 through 21, inside 
separate schools and residential facilities, not including homebound or 
hospital settings, correctional facilities, or private schools;
    (iii) For children with disabilities ages 3 through 21, out-of-
school suspensions and expulsions of 10 days or fewer;

[[Page 105]]

    (iv) For children with disabilities ages 3 through 21, out-of-school 
suspensions and expulsions of more than 10 days;
    (v) For children with disabilities ages 3 through 21, in-school 
suspensions of 10 days or fewer;
    (vi) For children with disabilities ages 3 through 21, in-school 
suspensions of more than 10 days; and
    (vii) For children with disabilities ages 3 through 21, disciplinary 
removals in total, including in-school and out-of-school suspensions, 
expulsions, removals by school personnel to an interim alternative 
education setting, and removals by a hearing officer.
    (5) The State must calculate an alternate risk ratio with respect to 
the categories described in paragraphs (b)(3) and (4) of this section if 
the comparison group in the LEA does not meet the minimum cell size or 
the minimum n-size.
    (6) Except as provided in paragraph (d) of this section, the State 
must identify as having significant disproportionality based on race or 
ethnicity under Sec.  300.646(a) and (b) any LEA that has a risk ratio 
or alternate risk ratio for any racial or ethnic group in any of the 
categories described in paragraphs (b)(3) and (4) of this section that 
exceeds the risk ratio threshold set by the State for that category.
    (7) The State must report all risk ratio thresholds, minimum cell 
sizes, minimum n-sizes, and standards for measuring reasonable progress 
selected under paragraphs (b)(1)(i)(A) through (D) of this section, and 
the rationales for each, to the Department at a time and in a manner 
determined by the Secretary. Rationales for minimum cell sizes and 
minimum n-sizes not presumptively reasonable under paragraph (b)(1)(iv) 
of this section must include a detailed explanation of why the numbers 
chosen are reasonable and how they ensure that the State is 
appropriately analyzing and identifying LEAs with significant 
disparities, based on race and ethnicity, in the identification, 
placement, or discipline of children with disabilities.
    (c) Exception. A State is not required to calculate a risk ratio or 
alternate risk ratio, as outlined in paragraphs (b)(3), (4), and (5) of 
this section, to determine significant disproportionality if:
    (1) The particular racial or ethnic group being analyzed does not 
meet the minimum cell size or minimum n-size; or
    (2) In calculating the alternate risk ratio under paragraph (b)(5) 
of this section, the comparison group in the State does not meet the 
minimum cell size or minimum n-size.
    (d) Flexibility. A State is not required to identify an LEA as 
having significant disproportionality based on race or ethnicity under 
Sec.  300.646(a) and (b) until--
    (1) The LEA has exceeded a risk ratio threshold set by the State for 
a racial or ethnic group in a category described in paragraph (b)(3) or 
(4) of this section for up to three prior consecutive years preceding 
the identification; and
    (2) The LEA has exceeded the risk ratio threshold and has failed to 
demonstrate reasonable progress, as determined by the State, in lowering 
the risk ratio or alternate risk ratio for the group and category in 
each of the two prior consecutive years.

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

[81 FR 92463, Dec. 19, 2016]



 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--

[[Page 106]]

    (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--
    (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

[[Page 107]]

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.
    (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

[[Page 108]]

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 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

[[Page 109]]

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:
    (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 1201 of the ESEA; and
    (xi) To provide technical assistance to schools and LEAs, and direct 
services, including direct student services described in section 
1003A(c)(3) of the ESEA, to children with disabilities, in

[[Page 110]]

schools or LEAs implementing comprehensive support and improvement 
activities or targeted support and improvement activities under section 
1111(d) of the ESEA on the basis of consistent underperformance 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 based on the challenging academic standards 
described in section 1111(b)(1) 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 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 8101 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.

[[Page 111]]

    (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.
    (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

[[Page 112]]

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; 
82 FR 29761, June 30, 2017]



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
    (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

[[Page 113]]

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 
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;

[[Page 114]]

    (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 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

[[Page 115]]

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 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.

[[Page 116]]

    (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 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

[[Page 117]]

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 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))

[[Page 118]]



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
    (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

[[Page 119]]

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 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

[[Page 120]]

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 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

[[Page 121]]

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 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.

[[Page 122]]

 
(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--
    (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-

[[Page 123]]

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 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

[[Page 124]]

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.
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 .
                                     [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.

[[Page 125]]

 
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/
------------------------------------------------------------------------
                                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

[[Page 126]]

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.htmsec2). 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 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

[[Page 127]]

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).



  Sec. Appendix E To Part 300--Local Educational Agency Maintenance of 
                       Effort Calculation Examples

    The following tables provide examples of calculating LEA MOE. 
Figures are in $10,000s. All references to a ``fiscal year'' in these 
tables refer to the fiscal year covering that school year, unless 
otherwise noted.
    Tables 1 through 4 provide examples of how an LEA complies with the 
Subsequent Years rule. In Table 1, for example, an LEA spent $1 million 
in Fiscal Year (FY) 2012-2013 on the education of children with 
disabilities. In the following year, the LEA was required to spend at 
least $1 million but spent only $900,000. In FY 2014-2015, therefore, 
the LEA was required to spend $1 million, the amount it was required to 
spend in FY 2013-2014, not the $900,000 it actually spent.

 Table 1--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following a Year in Which
                                   LEA Failed To Meet MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................  ..............             100  Required level of effort is $100
                                                                              despite LEA's failure in 2013-
                                                                              2014.
----------------------------------------------------------------------------------------------------------------

    Table 2 shows how to calculate the required amount of effort when 
there are consecutive fiscal years in which an LEA does not meet MOE.

[[Page 128]]



Table 2--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following Consecutive Years
                               in Which LEA Failed To Meet MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................              90             100  LEA did not meet MOE. Required
                                                                              level of effort is $100 despite
                                                                              LEA's failure in 2013-2014.
2015-2016..................................  ..............             100  Required level of effort is $100
                                                                              despite LEA's failure in 2013-2014
                                                                              and 2014-2015.
----------------------------------------------------------------------------------------------------------------

    Table 3 shows how to calculate the required level of effort in a 
fiscal year after the year in which an LEA spent more than the required 
amount on the education of children with disabilities. This LEA spent 
$1.1 million in FY 2015-2016 though only $1 million was required. The 
required level of effort in FY 2016-2017, therefore, is $1.1 million.

Table 3--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following Year in Which LEA
                                           Met MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................              90             100  LEA did not meet MOE. Required
                                                                              level of effort is $100 despite
                                                                              LEA's failure in 2013-2014.
2015-2016..................................             110             100  LEA met MOE.
2016-2017..................................  ..............             110  Required level of effort is $110
                                                                              because LEA expended $110, and met
                                                                              MOE, in 2015-2016.
----------------------------------------------------------------------------------------------------------------

    Table 4 shows the same calculation when, in an intervening fiscal 
year, 2016-2017, the LEA did not maintain effort.

Table 4--Example of Level of Effort Required To Meet MOE Compliance Standard in Year Following Year in Which LEA
                                      Did Not Meet MOE Compliance Standard
----------------------------------------------------------------------------------------------------------------
                                              Actual level   Required level
                Fiscal year                     of effort       of effort                   Notes
----------------------------------------------------------------------------------------------------------------
2012-2013..................................            $100            $100  LEA met MOE.
2013-2014..................................              90             100  LEA did not meet MOE.
2014-2015..................................              90             100  LEA did not meet MOE. Required
                                                                              level of effort is $100 despite
                                                                              LEA's failure in 2013-2014.
2015-2016..................................             110             100  LEA met MOE.
2016-2017..................................             100             110  LEA did not meet MOE. Required
                                                                              level of effort is $110 because
                                                                              LEA expended $110, and met MOE, in
                                                                              2015-2016.
2017-2018..................................  ..............             110  Required level of effort is $110,
                                                                              despite LEA's failure in 2016-
                                                                              2017.
----------------------------------------------------------------------------------------------------------------

    Table 5 provides an example of how an LEA may meet the compliance 
standard using alternate methods from year to year without using the 
exceptions or adjustment in Sec. Sec.  300.204 and 300.205, and provides 
information on the following scenario. In FY 2015-2016, the LEA meets 
the compliance standard using all four methods. As a result, in order to 
demonstrate that it met the compliance standard using any one of the 
four methods in FY 2016-2017, the LEA must expend at least as much as it 
did in FY 2015-2016 using that same method. Because the LEA spent the 
same amount in FY 2016-2017 as it did in FY 2015-2016, calculated using 
a combination of State and local funds and a combination of State and 
local funds on a per capita basis, the LEA met the compliance standard 
using both of those methods in FY 2016-2017. However, the LEA did not 
meet the compliance standard in FY 2016-2017 using the other two 
methods--local funds only or local funds only on a per capita basis--
because it did not spend at least the same amount in FY 2016-

[[Page 129]]

2017 as it did in FY 2015-2016 using the same methods.

    Table 5--Example of How an LEA May Meet the Compliance Standard Using Alternate Methods From Year to Year
----------------------------------------------------------------------------------------------------------------
                                                                                     Combination of
                                     Local funds   Combination of    Local funds    State and local
            Fiscal year                  only     State and local   only on a per    funds on a per  Child count
                                                       funds         capita basis     capita basis
----------------------------------------------------------------------------------------------------------------
2015-2016..........................       * $500           * $950            * $50            * $95           10
2016-2017..........................          400            * 950               40             * 95           10
2017-2018..........................        * 500              900             * 50               90           10
----------------------------------------------------------------------------------------------------------------
* LEA met compliance standard using this method.

    Table 6 provides an example of how an LEA may meet the compliance 
standard using alternate methods from year to year in years in which the 
LEA used the exceptions or adjustment in Sec. Sec.  300.204 and 300.205, 
including using the per capita methods.

  Table 6--Example of How an LEA May Meet the Compliance Standard Using Alternate Methods From Year to Year and
                      Using Exceptions or Adjustment Under Sec.  Sec.   300.204 and 300.205
----------------------------------------------------------------------------------------------------------------
                                                                                          Combination of
                                                     Combination of    Local funds only   State and local  Child
          Fiscal year            Local funds only   State and local    on a per capita    funds on a per   count
                                                         funds              basis          capita basis
----------------------------------------------------------------------------------------------------------------
2015- 2016....................  $500 *...........  $950 *...........  $50 *............  $95 *...........     10
2016- 2017....................  400..............  950 *............  40...............  95 *............     10
2017-2018.....................  450 *............  1,000 *..........  45 *.............  100 *...........     10
                                In 2017-2018, the  .................  In 2017-2018, the
                                 LEA was required                      LEA was required
                                 to spend at                           to spend at
                                 least the same                        least the same
                                 amount in local                       amount in local
                                 funds only that                       funds only on a
                                 it spent in the                       per capita basis
                                 preceding fiscal                      that it spent in
                                 year, subject to                      the preceding
                                 the Subsequent                        fiscal year,
                                 Years rule.                           subject to the
                                 Therefore, prior                      Subsequent Years
                                 to taking any                         rule. Therefore,
                                 exceptions or                         prior to taking
                                 adjustment in                         any exceptions
                                 Sec.  Sec.                            or adjustment in
                                 300.204 and                           Sec.  Sec.
                                 300.205, the LEA                      300.204 and
                                 was required to                       300.205, the LEA
                                 spend at least                        was required to
                                 $500 in local                         spend at least
                                 funds only.                           $50 in local
                                In 2017-2018, the                      funds only on a
                                 LEA properly                          per capita basis.
                                 reduced its                          In 2017-2018, the
                                 expenditures,                         LEA properly
                                 per an exception                      reduced its
                                 in Sec.                               aggregate
                                 300.204, by $50,                      expenditures,
                                 and therefore,                        per an exception
                                 was required to                       in Sec.
                                 spend at least                        300.204, by $50.
                                 $450 in local                        $50/10 children
                                 funds only                            with
                                 ($500) from 2015-                     disabilities in
                                 2016 per                              the comparison
                                 Subsequent Years                      year (2015-2016)
                                 rule - $50                            = $5 per capita
                                 allowable                             allowable
                                 reduction per an                      reduction per an
                                 exception under                       exception under
                                 Sec.   300.204).                      Sec.   300.204.
                                                                      $50 local funds
                                                                       only on a per
                                                                       capita basis
                                                                       (from 2015-2016
                                                                       per Subsequent
                                                                       Years rule) - $5
                                                                       allowable
                                                                       reduction per an
                                                                       exception under
                                                                       Sec.   300.204 =
                                                                       $45 local funds
                                                                       only on a per
                                                                       capita basis to
                                                                       meet MOE.
2018-2019.....................  405..............  1,000 *..........  45 *.............  111.11 *........      9

[[Page 130]]

 
                                In 2018-2019, the  Because the LEA    In 2018-2019, the  Because the LEA
                                 LEA was required   did not reduce     LEA was required   did not reduce
                                 to spend at        its expenditures   to spend at        its
                                 least the same     from the           least the same     expenditures
                                 amount in local    comparison year    amount in local    from the
                                 funds only that    (2017-2018)        funds only on a    comparison year
                                 it spent in the    using a            per capita basis   (2017-2018)
                                 preceding fiscal   combination of     that it spent in   using a
                                 year, subject to   State and local    the preceding      combination of
                                 the Subsequent     funds, the LEA     fiscal year,       State and local
                                 Years rule.        met MOE.           subject to the     funds on a per
                                 Therefore, prior                      Subsequent Years   capita basis
                                 to taking any                         rule. Therefore,   ($1,000/9 =
                                 exceptions or                         prior to taking    $111.11 and
                                 adjustment in                         any exceptions     $111.11  $100), the
                                 300.204 and                           Sec.  Sec.         LEA met MOE.
                                 300.205, the LEA                      300.204 and
                                 was required to                       300.205, the LEA
                                 spend at least                        was required to
                                 $450 in local                         spend at least
                                 funds only.                           $45 in local
                                In 2018-2019, the                      funds only on a
                                 LEA properly                          per capita basis.
                                 reduced its                          In 2018-2019, the
                                 expenditures,                         LEA properly
                                 per an exception                      reduced its
                                 in Sec.                               aggregate
                                 300.204 by $10                        expenditures,
                                 and the                               per an exception
                                 adjustment in                         in Sec.
                                 Sec.   300.205                        300.204 by $10
                                 by $10.                               and the
                                Therefore, the                         adjustment in
                                 LEA was required                      Sec.   300.205
                                 to spend at                           by $10.
                                 least $430 in                        $20/10 children
                                 local funds                           with
                                 only. ($450 from                      disabilities in
                                 2017-2018 - $20                       the comparison
                                 allowable                             year (2017-2018)
                                 reduction per an                      = $2 per capita
                                 exception and                         allowable
                                 the adjustment                        reduction per an
                                 under Sec.  Sec.                      exception and
                                   300.204 and                         the adjustment
                                 300.205).                             under Sec.  Sec.
                                                                         300.204 and
                                                                       300.205.
                                                                      $45 local funds
                                                                       only on a per
                                                                       capita basis
                                                                       (from 2017-2018)
                                                                       - $2 allowable
                                                                       reduction per an
                                                                       exception and
                                                                       the adjustment
                                                                       under Sec.  Sec.
                                                                         300.204 and
                                                                       300.205 = $43
                                                                       local funds only
                                                                       on a per capita
                                                                       basis required
                                                                       to meet MOE.
                                                                       Actual level of
                                                                       effort is $405/9
                                                                       (the current
                                                                       year child
                                                                       count).
----------------------------------------------------------------------------------------------------------------
* LEA met MOE using this method.
Note: When calculating any exception(s) and/or adjustment on a per capita basis for the purpose of determining
  the required level of effort, the LEA must use the child count from the comparison year, and not the child
  count of the year in which the LEA took the exception(s) and/or adjustment. When determining the actual level
  of effort on a per capita basis, the LEA must use the child count for the current year. For example, in 2018-
  2019, the LEA uses a child count of 9, not the child count of 10 in the comparison year, to determine the
  actual level of effort.

    Tables 7 and 8 demonstrate how an LEA could meet the eligibility 
standard over a period of years using different methods from year to 
year. These tables assume that the LEA did not take any of the 
exceptions or adjustment in Sec. Sec.  300.204 and 300.205. Numbers are 
in $10,000s budgeted and spent for the education of children with 
disabilities.

[[Page 131]]



      Table 7--Example of How an LEA May Meet the Eligibility Standard in 2016-2017 Using Different Methods
----------------------------------------------------------------------------------------------------------------
                                                                      Combination
                                            Combination  Local funds    of State
                               Local funds    of State    only on a    and local
         Fiscal year               only      and local    per capita   funds on a  Child count        Notes
                                               funds        basis      per capita
                                                                         basis
----------------------------------------------------------------------------------------------------------------
2014-2015....................       * $500     * $1,000        * $50       * $100           10  The LEA met the
                                                                                                 compliance
                                                                                                 standard using
                                                                                                 all 4 methods.*
2015-2016....................  ...........  ...........  ...........  ...........  ...........  Final
                                                                                                 information not
                                                                                                 available at
                                                                                                 time of
                                                                                                 budgeting for
                                                                                                 2016-2017.
How much must the LEA budget           500        1,000           50          100  ...........  When the LEA
 for 2016-2017 to meet the                                                                       submits a
 eligibility standard in 2016-                                                                   budget for 2016-
 2017?                                                                                           2017, the most
                                                                                                 recent fiscal
                                                                                                 year for which
                                                                                                 the LEA has
                                                                                                 information is
                                                                                                 2014-2015. It
                                                                                                 is not
                                                                                                 necessary for
                                                                                                 the LEA to
                                                                                                 consider
                                                                                                 information on
                                                                                                 expenditures
                                                                                                 for a fiscal
                                                                                                 year prior to
                                                                                                 2014-2015
                                                                                                 because the LEA
                                                                                                 maintained
                                                                                                 effort in 2014-
                                                                                                 2015.
                                                                                                 Therefore, the
                                                                                                 Subsequent
                                                                                                 Years rule in
                                                                                                 Sec.
                                                                                                 300.203(c) is
                                                                                                 not applicable.
----------------------------------------------------------------------------------------------------------------
* The LEA met the compliance standard using all 4 methods.


  Table 8--Example of How an LEA May Meet the Eligibility Standard in 2017-2018 Using Different Methods and the
                                    Application of the Subsequent Years Rule
----------------------------------------------------------------------------------------------------------------
                                                                      Combination
                                            Combination  Local funds    of State
                               Local funds    of State    only on a    and local
         Fiscal year               only      and local    per capita   funds on a  Child count        Notes
                                               funds        basis      per capita
                                                                         basis
----------------------------------------------------------------------------------------------------------------
2014-2015....................       * $500     * $1,000        * $50       * $100           10
2015-2016....................          450      * 1,000           45        * 100           10
2016-2017....................  ...........  ...........  ...........  ...........  ...........  Final
                                                                                                 information not
                                                                                                 available at
                                                                                                 time of
                                                                                                 budgeting for
                                                                                                 2017-2018.
How much must the LEA budget           500        1,000           50          100  ...........  If the LEA seeks
 for 2017-2018 to meet the                                                                       to use a
 eligibility standard in 2017-                                                                   combination of
 2018?                                                                                           State and local
                                                                                                 funds, or a
                                                                                                 combination of
                                                                                                 State and local
                                                                                                 funds on a per
                                                                                                 capita basis,
                                                                                                 to meet the
                                                                                                 eligibility
                                                                                                 standard, the
                                                                                                 LEA does not
                                                                                                 consider
                                                                                                 information on
                                                                                                 expenditures
                                                                                                 for a fiscal
                                                                                                 year prior to
                                                                                                 2015-2016
                                                                                                 because the LEA
                                                                                                 maintained
                                                                                                 effort in 2015-
                                                                                                 2016 using
                                                                                                 those methods.
                                                                                                However, if the
                                                                                                 LEA seeks to
                                                                                                 use local funds
                                                                                                 only, or local
                                                                                                 funds only on a
                                                                                                 per capita
                                                                                                 basis, to meet
                                                                                                 the eligibility
                                                                                                 standard, the
                                                                                                 LEA must use
                                                                                                 information on
                                                                                                 expenditures
                                                                                                 for a fiscal
                                                                                                 year prior to
                                                                                                 2015-2016
                                                                                                 because the LEA
                                                                                                 did not
                                                                                                 maintain effort
                                                                                                 in 2015-2016
                                                                                                 using either of
                                                                                                 those methods,
                                                                                                 per the
                                                                                                 Subsequent
                                                                                                 Years rule.
                                                                                                 That is, the
                                                                                                 LEA must
                                                                                                 determine what
                                                                                                 it should have
                                                                                                 spent in 2015-
                                                                                                 2016 using
                                                                                                 either of those
                                                                                                 methods, and
                                                                                                 that is the
                                                                                                 amount that the
                                                                                                 LEA must budget
                                                                                                 in 2017-2018.
----------------------------------------------------------------------------------------------------------------
* LEA met MOE using this method.


[[Page 132]]

    Table 9 provides an example of how an LEA may consider the 
exceptions and adjustment in Sec. Sec.  300.204 and 300.205 when 
budgeting for the expenditures for the education of children with 
disabilities.

 Table 9--Example of How an LEA May Meet the Eligibility Standard Using Exceptions and Adjustment in Sec.  Sec.
                                         300.204 and 300.205, 2016-2017
----------------------------------------------------------------------------------------------------------------
                                                                      Combination
                                            Combination  Local funds    of State
                               Local funds    of State    only on a    and local
         Fiscal year               only      and local    per capita   funds on a  Child count        Notes
                                               funds        basis      per capita
                                                                         basis
----------------------------------------------------------------------------------------------------------------
Actual 2014-2015 expenditures       * $500     * $1,000        * $50       * $100           10  The LEA met the
                                                                                                 compliance
                                                                                                 standard using
                                                                                                 all 4 methods.*
Exceptions and adjustment              -50          -50           -5           -5  ...........  LEA uses the
 taken in 2015-2016.                                                                             child count
                                                                                                 number from the
                                                                                                 comparison year
                                                                                                 (2014-2015).
Exceptions and adjustment the          -25          -25        -2.50        -2.50  ...........  LEA uses the
 LEA reasonably expects to                                                                       child count
 take in 2016-2017.                                                                              number from the
                                                                                                 comparison year
                                                                                                 (2014-2015).
How much must the LEA budget           425          925        42.50        92.50  ...........  When the LEA
 to meet the eligibility                                                                         submits a
 standard in 2016-2017?.                                                                         budget for 2016-
                                                                                                 2017, the most
                                                                                                 recent fiscal
                                                                                                 year for which
                                                                                                 the LEA has
                                                                                                 information is
                                                                                                 2014-2015.
                                                                                                 However, if the
                                                                                                 LEA has
                                                                                                 information on
                                                                                                 exceptions and
                                                                                                 adjustment
                                                                                                 taken in 2015-
                                                                                                 2016, the LEA
                                                                                                 may use that
                                                                                                 information
                                                                                                 when budgeting
                                                                                                 for 2016-2017.
                                                                                                 The LEA may
                                                                                                 also use
                                                                                                 information
                                                                                                 that it has on
                                                                                                 any exceptions
                                                                                                 and adjustment
                                                                                                 it reasonably
                                                                                                 expects to take
                                                                                                 in 2016-2017
                                                                                                 when budgeting
                                                                                                 for that year.
----------------------------------------------------------------------------------------------------------------

    Table 10 provides examples both of how to calculate the amount by 
which an LEA failed to maintain its level of expenditures and of the 
amount of non-Federal funds that an SEA must return to the Department on 
account of that failure.

Table 10--Example of How To Calculate the Amount of an LEA's Failure to Meet the Compliance Standard in 2016-2017 and the Amount That an SEA Must Return
                                                                    to the Department
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Combination
                                           Local funds    of State     Local funds only on a per     Combination of State and                 Amount of
               Fiscal year                     only      and local           capita basis          local funds on a per capita  Child count  IDEA Part B
                                                           funds                                              basis                            subgrant
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015-2016................................       * $500       * $950  $50 *.......................  $95 *......................  ...........          Not
                                                                                                                                               relevant.
2016-2017................................          400          750  40..........................  75.........................           10          $50
Amount by which an LEA failed to maintain          100          200  100 (the amount of the        200 (the amount of the       ...........
 its level of expenditures in 2016-2017.                              failure equals the amount     failure equals the amount
                                                                      of the per capita shortfall   of the per capita
                                                                      ($10) times the number of     shortfall ($20) times the
                                                                      children with disabilities    number of children with
                                                                      in 2016-2017 (10)).           disabilities in 2016-2017
                                                                                                    (10)).
--------------------------------------------------------------------------------------------------------------------------------------------------------
The SEA determines that the amount of the LEA's failure is $100 using the calculation method that results in the lowest amount of a failure. The SEA's
  liability is the lesser of the four calculated shortfalls and the amount of the LEA's Part B subgrant in the fiscal year in which the LEA failed to
  meet the compliance standard. In this case, the SEA must return $50 to the Department because the LEA's IDEA Part B subgrant was $50, and that is the
  lower amount.
* LEA met MOE using this method.


[[Page 133]]


[80 FR 23667, Apr. 28, 2015]

Appendix F 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 home.....  300.105(b).
  Disciplinary records.............................  300.229.
  Education records (Procedural safeguards notice).  300.504(c)(4).
  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 records.  300.623(d).
  Parent's private insurance proceeds..............  300.154(e).
  Record of access (Confidentiality)...............  300.614.
 
ACCESSIBILITY STANDARDS (Regarding construction)
  Americans with Disabilities Accessibility          300.718(b)(1).
 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:
    Ο Exception to FAPE............................  300.102(a)(2).
    Ο Modifications of IEP or placement............  300.324(d)(2).
    Ο 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

[[Page 134]]

 
  Aligned with alternate academic achievement        300.320(a)(2)(ii).
 standards.
  Development and provision of in accordance with    300.704(b)(4)(x).
 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:
    Ο Made by State................................  300.176(b).
    Ο 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:
    Ο How progress will be measured................  300.320(a)(3).
    Ο Special education and related services.......  300.320(a)(4).
    Ο 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:
    Ο Ensure availability of.......................  300.105(a).

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    Ο Use of AT in child's home....................  300.105(b).
  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 records.  300.613.
  State complaint procedures.......................  300.151(b).
  Waiver request (Signed by person with authority).  300.164(c)(1).
 
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 of).....  300.324(a)(3).
  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 Team.....  300.324(a)(2).
  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''
 

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BY-PASS: Private school children with disabilities (see
 Sec.  Sec.   300.190 through 300.198)
 
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 eligibility....  300.223(b).
  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 schools.  300.704(b)(4)(ix).
  Treatment of charter schools and their students..  300.209.
 
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 eligible.  300.534.
  Secretaries of the Interior and Health and Human   300.708(i)(2).
 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 delay(s).....  300.8(b)(1).
  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

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  Child find.......................................  300.111(c)(1).
  FAPE.............................................  300.101(c).
 
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 eligible.  300.534(a).
 
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 allocations for)...  300.704(b)(3)(i).
  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 hearing         300.152(c)(3).
 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 comply).....  300.604(c).
  FAPE requirement.................................  300.101(a).
  LEA and State agency compliance..................  300.222(a).
  LRE (State funding mechanism)....................  300.114(b).
  Modifications of policies:.......................
    Ο Made by LEA or State agency..................  300.176(b).
    Ο Required by SEA..............................  300.220(c).
    Ο 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:
    Ο IEP requirement..............................  300.325(c).
    Ο SEA (Monitor compliance).....................  300.147(a)

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  Public participation requirements................  300.165.
  SEA responsibility if LEA does not comply........  300.227(a).
  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:
    Ο Destruction of information...................  300.611(a).
    Ο Education records............................  300.611(b).
    Ο Participating agency.........................  300.611(c).
  Department use of personally identifiable          300.627.
 information.
  Disciplinary information.........................  300.229.
  Enforcement by SEA...............................  300.626.
 
CONFIDENTIALITY (F-Z)
  Family Educational Rights and Privacy Act:
    Ο Children's rights............................  300.625.
    Ο Disciplinary records.........................  300.535(b)(2).
    Ο In definition of ``Education records''.......  300.611(b).
    Ο Notice to parents............................  300.612(a)(3).
  Fees.............................................  300.617.
  Hearing procedures...............................  300.621.
  List of types and location of information........  300.616.
  Notice to parents................................  300.612(a).
  Opportunity for a hearing........................  300.619.
  Parental authority to inspect and review records.  300.613(b).
  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 officials)  300.622(a).
  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:
    Ο Before administering a test or other           300.300(d)(1)(ii).
     evaluation to all children.
    Ο Before reviewing existing data...............  300.300(d)(1)(i).
    Ο When screening for instructional purposes....  300.302.
  Private insurance (Accessing)....................  300.154(e)(1).
  Reasonable efforts to obtain consent:
    Ο For initial evaluation.......................  300.300(a)(1)(iii).
    Ο For initial evaluations for wards of the       300.300(a)(2).
     State.
    Ο For initial provision of services............  300.300(b)(2).
    Ο Reasonable efforts requirements..............  300.300(d)(5).
  Reevaluations....................................  300.300(c)(2).
  Release of information from education records....  300.622.
 
CONSIDERATION OF SPECIAL FACTORS (by IEP Team).............  300.324(a)(2).
 

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CONSISTENCY WITH STATE POLICIES: LEA.......................  300.201.
 
CONSTRUCTION
  Accessibility standards..........................  300.718(b).
  Exception to maintenance of effort (Termination    300.204(d).
 of costly expenditures for construction).
  Private schools (No funds may be used for).......  300.144(e).
 
CONSTRUCTION CLAUSES (A-I)
  Child find (Nothing requires classifying children  300.111(d).
 by disability).
  Civil action (Exhaust administrative remedies      300.516(e).
 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 decision......  300.513(b).
  Highly qualified SEA or LEA staff................  300.156(e).
  Highly qualified teacher.........................  300.18(f).
  IEP (Inclusion of additional information beyond    300.320(d)(1).
 explicit requirements).
  IEP (Information in more than one component not    300.320(d)(2).
 required).
 
CONSTRUCTION CLAUSES (J-Z)
  Prohibition on mandatory medication..............  300.174(b).
  Referral to and action by law enforcement and      300.535(a).
 judicial authorities.
  Secretary's authority to monitor enforcement       300.609.
 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).
    Ο Advisory board (Service coordination within    300.714(b)(1).
     BIA).
    Ο Payments for children aged 3 through 5.......  300.712(a).
    Ο 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 services..  300.208(a)(2).
  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.

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  Exception to FAPE (Children in adult facilities).  300.102(a)(2).
  See also ``Adult prisons''
  State advisory panel (Representatives on)........  300.168(a)(11).
  State juvenile-adult correctional facilities.....  300.2(b)(1)(iv).
  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:
    Ο Exception to FAPE for certain ages...........  300.102(a)(1).
  Judicial review:
    Ο By-pass......................................  300.197.
    Ο Department procedures........................  300.184.
  New interpretation of Act by courts requiring      300.176(c)(2).
 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 (Definition).......  300.717(d).
  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:
    Ο Procedures for determining eligibility and     300.306(c).
     placement.
    Ο Review of existing data......................  300.305(a)(1).
  Grants to States most recent data................  300.703(c)(1)(ii).
  LRE (Placements--meaning of evaluation data......  300.116(a)(1).
 
DATA (M-Z)
  Parental consent (Not required for reviewing       300.300(d)(1)(i).
 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).

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  Discipline (See ``Timelines--Discipline'')
  School day (Definition)..........................  300.11(c).
  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 teacher.......  300.18(b).
  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.

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  Local educational agency (LEA)...................  300.28.
  Medical services.................................  300.34(c)(5).
  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 children with     300.130.
 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))
 

[[Page 143]]

 
DEPARTMENT (U.S. Department of Education)
  Enforcement: hearing procedures (see Sec.  Sec.
 300.178 through 300.184)
  Monitoring (Regarding Secretary of the Interior).  300.708(a).
  Personally identifiable information (Use of).....  300.627.
 
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 disability''.....  300.8(b).
  Requirements for using ``Developmental delay''...  300.111(b).
  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 children with   300.704(b)(4)(xi).
 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 plan......  300.530(f).
 
DISCIPLINE (C-H)
  Change of placements for disciplinary removals...  300.536.
  Child's status during due process hearings.......  300.518.
  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 eligible.  300.534.
  Referral to and action by law enforcement and      300.535.
 judicial authorities.
  School personnel (Authority of)..................  300.530(b).

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  See ``Timelines--Discipline''....................
 
DISCLOSURE
  Additional disclosure of information requirement.  300.512(b).
  Consent required before disclosing:
    Ο Education records to public benefits or        300.154(d)(2)(iv).
     insurance agencies.
    Ο Personal information to non-agency officials.  300.622(a).
  Notice on disclosure of evaluation results.......  300.504(c)(10).
  Policies on disclosing information to 3rd parties  300.612(a)(3).
  Prohibit evidence not disclosed..................  300.512(a)(3).
 
DISPROPORTIONALITY.........................................  300.646.
 
DISPUTES
  Interagency disputes (Methods of ensuring
 services):
    Ο Ensure services during pendency of dispute...  300.154(a).
    Ο Procedures for resolving.....................  300.154(a)(3).
  Mediation (see also Sec.   300.532(c)(3))........  300.506.
    Ο Attorneys' fees for..........................  300.517(c)(2)(ii).
    Ο During discipline appeal process.............  300.532(c)(3).
    Ο During resolution process (see Sec.
     300.510(b)(3), (c)(3))
    Ο 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 hearing........  300.511(b).
  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 (Pendency).....  300.518.
    Ο Parent request for hearing (Discipline)......  300.532(a).
  Civil action.....................................  300.516(a).
  Evaluations disclosed at least 5 business days     300.512(a)(3).
 before hearing.
  Expedited due process hearings (Discipline)......  300.532(c).
 
DUE PROCESS HEARING(S) AND REVIEWS (F-I)
  Failure to implement a due process hearing         300.152(c)(3).
 decision.
  Finality of decision; appeal; impartial review...  300.514.
  Findings of fact and decisions (see Sec.
 300.512(a)(5), (c)(3)):
    Ο To State advisory panel (see Sec.  Sec.
     300.513(d), 300.514(c))
  Hearing rights...................................  300.512(a).
  Impartial hearing officer........................  300.511(c).
    Ο 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).
    Ο 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 business days   300.512(a)(3).
 before hearing.
  Record of hearing................................  300.512(c)(3).
  See ``Civil action--proceedings,'' ``Court(s)''
 ``Procedural safeguards,'' ``Timelines''

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  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 needing   300.226(a).
 special education or related services.
  Permissive use of funds..........................  300.208(a)(2).
  Scientifically based literacy instruction........  300.226(b).
  Use of funds:
    Ο By LEA.......................................  300.226(a).
    Ο 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 (Regarding      300.224(b).
 ESAs).
    Ο Additional requirements (Regarding LRE)......  300.224(c).
 
ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965 (ESEA)
  Coordination of early intervening services.......  300.226(e).
  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 prisons......  300.324(d).
  Children with specific learning disabilities       300.311(a).
 (Documentation of eligibility determination).
  Determinant factor for...........................  300.306(b)(1).
  Determination of eligibility.....................  300.306.
  Developmental delay (Non-use of term by LEA if     300.111(b)(iv).
 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 of         Sec.   300.154(d)(2) (iii).
 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 of the     300.712(e).
 Interior.
  State (See ``State eligibility'')
  State agency eligibility.........................  300.228.
    Ο See ``State agencies''
 
EMOTIONAL DISTURBANCE (Definition).........................  300.8(c)(4).
 
ENFORCEMENT

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  Department procedures (see Sec.  Sec.   300.600,
 300.604, 300.605)
  Referral to law enforcement authorities..........  300.535.
  State policies and procedures:
    Ο Enforcement mechanisms.......................  300.537.
    Ο LEA not meeting requirements.................  300.608.
    Ο 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 education      300.304(c)(6).
 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 expense.....  300.502(b).
  Reevaluation.....................................  300.303.
 
EXCEPTION
  Charter schools exception (Joint eligibility)....  300.223(b).
  For prior local policies and procedures..........  300.220.
  For prior State policies and procedures..........  300.176(a).
  To FAPE:
    Ο For certain ages.............................  300.102.
    Ο For graduating with a regular diploma........  300.102 (a)(3)(i).
    Ο 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 parents)......  300.532(a).
 
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 facilities)......  300.108(d).
  Private schools and facilities...................  300.2(c).
  See also ``Correctional facilities''
  Termination of expenses for construction of......  300.204(d).
 
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) (See
 ``Confidentiality'')
 
FAPE (A-G)
  Definition.......................................  300.17.
  Documentation of exceptions......................  300.102(b).
  Exception to FAPE:
    Ο For certain ages.............................  300.102(a).
    Ο For children receiving early intervention      300.102(a)(4).
     services.
    Ο For children graduating with a regular         300.102(a)(3).
     diploma.
    Ο For children in adult correctional facilities  300.102(a)(2).
  For children:
    Ο Advancing from grade to grade................  300.101(c).
    Ο Beginning at age 3...........................  300.101(b).
    Ο On Indian reservations.......................  300.707(c).
    Ο 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:
    Ο Placed by parents when FAPE is at issue......  300.148.
    Ο Placed in or referred by public agencies (see
     Sec.  Sec.   300.145 through 300.147)
  Reallocation of LEA funds (FAPE adequately         300.705(c).
 provided).
  Services (and placement) for FAPE:
    Ο 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 children)......  300.196.
  Department procedures............................  300.183.
  See Sec.  Sec.   300.178 through 300.186.
 
FINALITY OF DECISION.......................................  300.514.
 
FORMULA

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  Allocations to LEAs..............................  300.705(b).
  Allocations to States............................  300.703.
  Allocation to States when by-pass is implemented.  300.191.
  Allocation to States regarding section 619 (see
 Sec.  Sec.   300.807, 300.810).
  Parentally-placed private school children........  300.133.
  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:
    Ο Be involved and progress in..................  300.304(b)(1)(ii).
    Ο Review of existing evaluation data...........  300.305(a)(1).
  IEPs:
    Ο Measurable annual goals......................  300.320(a)(2)(i).
    Ο Present levels of educational performance....  300.320(a)(1).
    Ο Review and revision of IEPs..................  300.324(b)(1)(ii).
    Ο Special education and related services.......  300.320(a)(4)(ii).
  IEP Team.........................................  300.321(a)(4)(ii).
  Specially designed instruction (Definition)......  300.39(b)(3).
 
GOALS
Annual goals (See ``IEP'' and ``Annual goals'').
  Performance goals and indicators.................  300.157.
    Ο State and local activities to meet...........  300.814(c).
    Ο 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 indicators.......  300.157(a)(3).
  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.
    Ο Maximum amount...............................  300.700(b).
    Ο 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

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  Definition.......................................  300.8(c)(5).
  Related services, audiology......................  300.34(c)(1).
HEARING OFFICER(S) (A-B)
  Additional disclosure of information requirement.  300.512(b).
  Attorneys' fees..................................  300.517(c)(2)(i).
  Authority of (Discipline)........................  300.532(b).
    Ο Basis of decisions...........................  300.513(a).
 
HEARING OFFICER(S) (C-Z)
  Change of placement:
    Ο Hearing officer decision agrees with parents.  300.518(d).
    Ο Hearing officer may order....................  300.532(b)(2)(ii).
  Expedited due process hearing (Discipline).......  300.532(c).
  Impartial hearing officer........................  300.511(c).
  Parent appeal (Discipline).......................  300.532(a).
  Placement during appeals.........................  300.533.
  Private school placement when FAPE is at issue...  300.148(b).
  Reimbursement for private school placement by      300.148(c).
 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 procedures.......  300.165(a).
  State and local eligibility:
    Ο LEA eligibility..............................  300.155.
    Ο Notification in case of LEA or State           300.221.
     ineligibility.
    Ο 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 academic    300.18(c).
 achievement standards.
  Requirements for teaching multiple subjects......  300.18(d).
  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).
 

[[Page 150]]

 
IEE (See ``Independent educational evaluation'')
 
IEP (A-I)
  Agency responsibilities for transition services..  300.324(c)(1).
  Basic requirements (see Sec.  Sec.   300.320
 through 300.324).
  Child participation when considering transition..  300.321(b)(1).
  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 5........  300.323(b).
  IEP Team.........................................  300.321.
 
IEP (J-Z)
  Modifications of IEP or placement (FAPE for        300.324(d)(2)(i).
 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 agencies.....  300.325(a)(1).
  Regular education teacher (See ``IEP Team'').
  Review and revision of IEPs......................  300.324(b).
  SEA responsibility regarding private school......  300.325(c).
  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 (Determined by)..  300.531.
  Consideration of special factors.................  300.324(a)(2).
    Ο Assistive technology.........................  300.324(a)(2)(v).
    Ο Behavioral interventions.....................  300.324(a)(2)(i).
    Ο Braille needs................................  300.324(a)(2)(iii).
    Ο Communication needs (Deafness and other        300.324(a)(2)(iv).
     needs).
    Ο Limited English proficiency..................  300.324(a)(2)(ii).
  Determination of knowledge or special expertise..  300.321(c).
  Discipline procedures (see Sec.  Sec.
 300.530(e), 300.531).
  Manifestation determination......................  300.530(e).
  Other individuals who have knowledge or special    300.321(a)(6).
 expertise (At parent or agency discretion).
  Participation by private school (public agency     300.325(a).
 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'').
 

[[Page 151]]

 
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).
  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 through 5..  300.712(d).
  Definition of ``Indian''.........................  300.21(a).
  Definition of ``Indian tribe''...................  300.21(b).
  Early intervening services.......................  300.711.
  Payments and use of amounts for:
    Ο Education and services for children aged 3     300.712(a).
     through 5.
    Ο Education of Indian children.................  300.707.
  Plan for coordination of services................  300.713.
  Submission of information by Secretary of          300.708.
 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).
    Ο For ward of State............................  300.300(a)(2).
    Ο Not construed as consent for initial           300.300(a)(1)(ii).
     placement.
    Ο 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:
    Ο SEA coordination with........................  300.172(c).
    Ο 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 agreements).....  300.103(a).
  LRE (Children in public/private institutions)....  300.114(a)(2)(i).
  Methods of ensuring services.....................  300.154(a).

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  SEA responsibility for general supervision.......  300.149.
  Secretary of Interior--with Health and Human       300.708(i)(1).
 Services Secretary.
    Ο Cooperative agreements (BIA and other          300.712(d).
     agencies).
 
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:
    Ο Civil action (see Sec.  Sec.
     300.504(c)(12), 300.514(d), 300.516).
    Ο 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).
    Ο Reallocation of funds (If LEA is adequately    300.705(c).
     providing FAPE).
  Charter schools and LEAs (See ``Charter
 schools'').
  Child count--LEAs:
    Ο Parentally-placed private school children      300.133(c).
     with disabilities.
    Ο Procedures for counting all children served    300.645.
     (Annual report).
    Ο See also ``Child count''.
  Child find--LEAs:
    Ο Parentally-placed private school children      300.131.
     with disabilities.
    Ο See also ``Child find''......................
  Compliance (LEA and State agency)................  300.222.
  Consistency of LEA policies with State policies..  300.201.
 
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 or        300.227.
 unwilling to serve CWDs, etc.).
  Discipline and LEAs (See ``Discipline'').
  Eligibility of LEA:

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    Ο Condition of assistance (see Sec.  Sec.
     300.200 through 300.213).
    Ο Exception for prior local plans..............  300.220.
    Ο Ineligibility of LEA (Notice by SEA).........  300.221.
    Ο SEA hearings on LEA eligibility..............  300.155.
  Excess cost requirement--LEA:....................  300.202(b).
    Ο Use of amounts for excess costs..............  300.202(a)(2).
    Ο 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 two or      300.202(b)(3).
 more LEAs).
    Ο See also Sec.  Sec.   300.223, 300.224.......
  LEA and State agency compliance..................  300.222.
  LEA policies (Modification of)...................  300.220(b).
    Ο 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 (Linkage      300.213.
 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 assist LEAs   300.704(b)(4)(vii).
 in meeting).
  Public information (By LEA)......................  300.212.
 
LEA (R-T)
  Reallocation of LEA funds (If LEA is adequately    300.705(c).
 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 services...  300.227.
  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 to B)....  300.124(c).
 
LEA (U-Z)
  Use of amounts (by LEA)..........................  300.202.
    Ο (See ``Permissive use of funds'').
  Use of SEA allocations (Regarding LEAs)..........  300.704.
    Ο For capacity-building, etc. (see Sec.
     300.704(b)(4)(viii)).
    Ο To assist in meeting personnel shortages (see
     Sec.   300.704(b)(4)(vii)).
 
LEA ELIGIBILITY (A-I)
  Adjustment to local fiscal efforts in certain      300.205.
 fiscal years.
  Charter schools--public:

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    Ο Rights of children with disabilities who       300.209(a).
     attend public charter schools.
    Ο That are public schools of the LEA...........  300.209(b).
    Ο That are LEAs................................  300.209(c).
    Ο That are not an LEA or a school that is part   300.209(d).
     of an LEA.
    Ο Treatment of charter schools and their         300.209.
     students.
    Ο See also ``Charter schools''.
  Condition of assistance..........................  300.200.
    Ο 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.
    Ο Exception to.................................  300.204.
  Migratory children with disabilities--records      300.213.
 regarding.
  Permissive use of funds..........................  300.208.
    Ο Administrative case management...............  300.208(b).
    Ο Early intervening services...................  300.208(a)(2).
    Ο High cost special education and related        300.208(a)(3).
     services.
    Ο Services and aids that also benefit            300.208(a)(1).
     nondisabled children.
  Personnel development............................  300.207.
  Records regarding migratory children with          300.213.
 disabilities.
  State prohibition (If LEA is unable to establish/  300.205(c).
 maintain programs of FAPE).
  Treatment of charter schools and their students..  300.209.
 
LEAD POISONING (Other health impairment)...................  300.8(c)(9)(i).
 
LEAST RESTRICTIVE ENVIRONMENT (LRE)
  Children in public or private institutions.......  300.118.
  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 mechanism..  300.114(b).
  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 determination..  300.306(b)(1)(iii).
  In development, review, and revision of IEP......  300.324(a)(2)(ii).
  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.

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  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 are not MOE  300.154(g)(2).
    Ο See ``Methods of ensuring services''.
 
MAINTENANCE OF EFFORT (MOE-LEA) (S-Z)
  SEA flexibility..................................  300.230(a).
  State enforcement (SEA must prohibit LEA from      300.608.
 reducing MOE).
 
MAINTENANCE OF STATE FINANCIAL SUPPORT.....................  300.163.
  Reduction of funds for failure to maintain         300.163(b).
 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 supervision         300.149(a)(3).
 (Regarding homeless children).
  State advisory panel (Membership)................  300.168(a)(5).
  Surrogate parents (Homeless child's rights         300.519(a)(4).
 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 parents and      300.506(b)(2).
 schools.
  Disputes (Resolve through mediation).............  300.506(a).
  Legally binding agreement........................  300.506(b)(6).
  Mediation procedures (By public agency to allow    300.506(a).
 parties to resolve disputes).
  Mediators:.......................................
    Ο Impartiality of..............................  300.506(c).
    Ο List of......................................  300.506(b)(3)(i).
    Ο 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 insurance.  300.154(d)(1).
  Construction (Nothing alters requirements imposed  300.154(h).
 under Titles XIX or XXI).
  Financial responsibility of each non-educational   300.154(a)(1).
 public agency (e.g., State Medicaid).
  LEA high cost fund (Disbursements not medical      300.704(c)(8).
 assistance under State Medicaid).
  Medicaid reimbursement not disqualified because    300.154(b)(1)(ii).
 service in school context.

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  Methods of ensuring services (see Sec.
 300.154(a)(1), (b)(1)(ii), (d), (g)(2), (h)).
  Proceeds from public or private insurance........  300.154(g)(1).
  Public agency may use Medicaid...................  300.154(a)(1).
  State Medicaid, etc., must precede financial       300.154(a)(1).
 responsibility of LEA.
 
MEDICAL (A-L)
  Assistance under other Federal programs..........  300.186.
  Assistive technology device (Does not include a    300.5.
 surgically implanted medical device).
  LEA high cost fund (Disbursements not medical      300.704(c)(8).
 assistance under State Medicaid).
 
MEDICAL (M-Q)
  Medical services in (``Related services''):
    Ο Audiology (Referral for).....................  300.34(c)(1)(ii).
    Ο Definition of................................  300.34(c)(5).
    Ο For diagnostic purposes......................  300.34(a).
    Ο Speech-language pathology (Referral for).....  300.34(c)(15)(iii).
  Medical supplies, etc. (Memo of agreement between  300.708(i)(2).
 HHS and Interior).
  Non-medical (Residential placement)..............  300.104.
 
MEDICAL (R-Z)
  Referral for medical services:
    Ο Audiology....................................  300.34(c)(1)(ii).
    Ο Speech-language pathology services...........  300.34(c)(15)(iii).
  Related services: Exception; surgically implanted  300.34(b).
 devices (``Cochlear implants'').
  Routine checking of hearing aids and other         300.113.
 devices.
  SLD: Educationally relevant medical findings, if   300.311(a)(4).
 any.
 
MEDICATION
  Prohibition on mandatory medication..............  300.174.
 
MEETING(S)
  Alternative means of meeting participation.......  300.328.
  Consolidation of IEP Team meetings...............  300.324(a)(5).
  Equitable services determined (Parentally-placed   300.137.
 private school CWDs).
  IEP Team meetings (See ``IEP'').
  Mediation (Opportunity to meet)..................  300.506(b)(2).
  Opportunity to examine records; participation in   300.501.
 IEP Team meetings.
  Parent participation in meetings (see Sec.
 300.506(b)(2), (b)(4)).
  Private school placements by public agencies.....  300.325.
  Reviewing and revising IEPs (Private school        300.325(b).
 placements).
  Services plan for private school children          300.137(c)(1).
 (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 (Linkage      300.213.
 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 public       300.147(a).
 agencies.

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  Implementation by SEA............................  300.147(a).
  LRE (SEA monitoring activities)..................  300.120.
  Monitoring activities (LRE)......................  300.120.
  Monitoring--Enforcement (Subpart F)..............  300.600.
    Ο Rule of construction (Use any authority under  300.609.
     GEPA to monitor).
    Ο Secretary's review and determination           300.603(b)(1).
     regarding State performance.
    Ο State exercise of general supervision........  300.600(d)(2).
    Ο 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 supervision.......  300.149(b).
  Secretary of the Interior........................  300.708.
  State advisory panel functions (Advise SEA on      300.169(d).
 corrective action plans).
  Use of SEA allocations for monitoring............  300.704(b)(3)(i).
  Waiver (State's procedures for monitoring).......  300.164(c)(2)(ii)(B).
    Ο 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 language).  300.304(c)(1)(ii).
  Notice to parents: Confidentiality (In native      300.612(a)(1).
 language).
  Prior notice:
    Ο Notice in native language....................  300.503(c)(1)(ii).
    Ο Notice translated orally.....................  300.503(c)(2)(i).
    Ο 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 (Equal     300.107(a).
 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.

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  Placement........................................  300.116.
  Program options..................................  300.110.
 
NONDISABLED (Children; students) (R-Z)
  Regular physical education.......................  300.108(b).
  Services and aids that also benefit nondisabled    300.208(a)(1).
 children.
  Special education (Definition: In definition of    300.39(b)(1).
 ``at no cost'').
  Supplementary aids and services..................  300.42.
  Suspension and expulsion rates...................  300.170(a)(2).
 
NONEDUCATIONAL (Public agency)
  Medicaid service (May not be disqualified because  300.154(b)(1)(ii).
 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 children aged   300.202(b)(1)(ii).
 3 through 5 and 18 through 21).
  LEA nonsupplanting...............................  300.202(b)(1)(ii).
  SEA flexibility..................................  300.230(a).
  State-level activities (Inapplicability of         300.704(d).
 certain provisions).
  State-level nonsupplanting.......................  300.162(c).
  Waiver of requirement............................  300.164.
 
NOTICES: By parents or parties
  Attorneys' fees: When court reduces fee award      300.517(c)(4)(iv).
 regarding due process request notice.
  Children enrolled by parents in private schools    300.148(d)(1)(i).
 when FAPE is at issue.
  Due process complaint (Notice before a hearing on  300.508(c).
 a complaint).
  Private school placement by parents (When FAPE is  300.148(d)(1)(i).
 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.
    Ο 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 with        300.184.
 eligibility determination.
  LEA and State agency compliance..................  300.222.
    Ο 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 ineligible.......  300.179.
  Notice in understandable language................  300.503(c).
  Notification of LEA in case of ineligibility.....  300.221(b).
  Parent participation in meetings.................  300.501(b)(2).
  Prior notice by public agency....................  300.503.
  Private school placement by parents when FAPE is   300.148(d)(2).
 at issue (Public agency notice).

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  Procedural safeguards notice.....................  300.504.
  Public attention.................................  300.606.
  Public participation (Notice of hearings)........  300.165(a).
 
NOTICES: Public agency (Q-Z)
  Secretary of the Interior (Submission of           300.708(g).
 information).
  Secretary's review and determination of State      300.603(b)(2).
 performance.
  Transfer of parental rights......................  300.520(a)(1)(i).
  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:
    Ο Freely associated States.....................  300.717(a).
    Ο Outlying areas...............................  300.717(b).
  Definition of ``State'' (Includes ``Outlying       300.40.
 areas'').
  Outlying areas and freely associated States......  300.701.
  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 and review   300.613(c).
 records).
  Consent (See ``Consent'')
  Counseling and training (Definition).............  300.34(c)(8).
  Definition of ``Parent''.........................  300.30.
    Ο Foster parent................................  300.30(a)(2).
    Ο Grandparent or stepparent....................  300.30(a)(4).
    Ο Guardian.....................................  300.30(a)(3).
 
PARENT: RIGHTS AND PROTECTIONS (H-N)
  Independent educational evaluation...............  300.502.
    Ο Parent-initiated evaluations.................  300.502(c).
    Ο Parent right to evaluation at public expense.  300.502(b).
  IEP and parent involvement:
    Ο Copy of child's IEP..........................  300.322(f).
    Ο Informed of child's progress.................  300.320(a)(3)(ii).
    Ο Option to invite other individuals...........  300.321(a)(6).
    Ο Participation in meetings....................  300.322.
    Ο Team member..................................  300.321(a)(1).
  Informed consent (Accessing private insurance)...  300.154(e)(1).
  Involvement in placement decisions...............  300.501(c).
  Meetings (Participation in)......................  300.501(b).
  Notice to public agency:
    Ο Before a hearing on a due process complaint..  300.508(c).
    Ο Before removing child from public school.....  300.148(d)(1)(ii).

[[Page 160]]

 
    Ο Timeline for requesting a hearing............  300.511(e).
          Exceptions to timeline...................  300.511(f).
    Ο 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 evaluation...  300.502(b).
 
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 complaints......  300.140.
  Equitable services determined....................  300.137.
    Ο Equitable services provided..................  300.138.
  Expenditures.....................................  300.133.
    Ο Formula......................................  300.133(a).
 
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES
 (F-R)
  No individual right to special education and       300.137(a).
 related services.
  Property, equipment, and supplies................  300.144.
  Proportionate share of funds.....................  300.134(b).
    Ο 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 private       300.141.
 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.
    Ο For each child served under Sec.  Sec.         300.137(c).
     300.130 through 300.144.
    Ο 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:
    Ο Private school personnel.....................  300.142(b).
    Ο Public school personnel......................  300.142(a).
  Written affirmation..............................  300.135.
  Written explanation by LEA regarding services....  300.134(e).
 
PARTICIPATING AGENCY
  Confidentiality provisions:
    Ο Definition of participating agency...........  300.611(c).
    Ο See also Sec.  Sec.   300.613(c), 300.614,
     300.616, 300.618, 300.623
  IEP requirements (Transition services)...........  300.324(c).
 

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PENDENCY (Stay put)
  Child's status during due process proceedings....  300.518.
  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.
  State monitoring and enforcement.................  300.600(c).
  State performance plans and data collection......  300.601.
 
PERFORMANCE; PERFORMANCE PLANS (STATE)
  Enforcement......................................  300.604.
  Public reporting and privacy.....................  300.602(b).
  Secretary's review and determination regarding     300.603.
 State performance.
  State performance plans and data collection......  300.601.
  State performance report.........................  300.602(b)(2).
  State use of targets and reporting...............  300.602.
    Ο Public reporting.............................  300.602(b)(1).
    Ο 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 nondisabled    300.208(a)(1).
 children.
PERSONALLY IDENTIFIABLE (PI) INFORMATION (A-H)
  Confidentiality of (State eligibility              300.123.
 requirement).
  Consent (confidentiality)........................  300.622(a).
  Data collection (State performance plans)........  300.601(b)(3).
  Definition of ``personally identifiable''........  300.32.
  Department use of information....................  300.627.
  Destruction:
    Ο Definition of................................  300.611(a).
    Ο Destruction of information...................  300.624.
  Hearing decisions to advisory panel and the        300.513(d).
 public.
 
PERSONALLY IDENTIFIABLE (PI) INFORMATION (I-Z)
  Notice to parents (Confidentiality):
    Ο Children on whom PI information is maintained  300.612(a)(2).
    Ο 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)

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  Adult prisons (CWDs in):
    Ο Last educational placement before              300.102(a)(2)(i).
     incarceration.
    Ο Modifications to IEPs and placements.........  300.324(d)(2).
  Alternative means of meeting participation         300.328.
 (Regarding ``Placement meetings'').
  Change in placement: Graduation..................  300.102(a)(3)(iii).
  Child's placement during pendency of any           300.504(c)(7).
 complaint.
    Ο See also ``Pendency'' (Child's status during   300.518.
     proceedings).
  Children with disabilities in adult prisons:
 Placements regarding (see Sec.  Sec.   300.102(a)(2)(i),
 300.324(d)(2)).
  Continuum of alternative placements (Continuum--   300.115.
 LRE).
 
PLACEMENT(S) (Cu-L)
  Current placement (see Sec.   300.530(b)((2),
 (d))
  Current ``Educational placement:''
    Ο Change of placements because of disciplinary   300.536.
     removals.
    Ο 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 group that  300.327.
 makes placement decisions).
  Graduation: A change in placement (Exception to    300.102(a)(3)(iii).
 FAPE).
  Last educational placement (Before incarceration)  300.102(a)(2)(i).
  Least restrictive environment (LRE) (see Sec.
 Sec.   300.114 through 300.120)
  Notification: LEA must notify parents of decision  300.530(h).
 to change placement.
 
PLACEMENT(S) (O-Z)
  Pendency (Child's status during proceedings).....  300.518.
Placement of children by parents if FAPE is at issue.......  300.148.
  Placements (LRE).................................  300.116.
  Requirements for unilateral placement by parents   300.504(c)(9).
 of CWDs in private schools (In ``Procedural safeguards
 notice'').
  State funding mechanism (Must not result in        300.114(b)(1).
 placements that violate LRE).
 
POLICY: POLICIES AND PROCEDURES
  Condition of assistance (LEA eligibility)........  300.200.
    Ο Consistency with State policies..............  300.201.
    Ο See also Sec.  Sec.   300.200 through 300.213
  Eligibility for assistance (State)...............  300.100.
  Exception for prior policies on file:
    Ο With the SEA.................................  300.220.
    Ο With the Secretary...........................  300.176(a).
  FAPE policy......................................  300.101(a).
  Joint establishment of eligibility (Requirements)  300.223.
  Modifications of:
    Ο LEA or State agency policies.................  300.220(b).
    Ο Required by Secretary........................  300.176(c).
    Ο State policies (By a State)..................  300.176(b).
  Public participation.............................  300.165.
  Secretary of the Interior........................  300.708.
    Ο Public participation.........................  300.709.
    Ο Submission of information....................  300.708.
 

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PREPONDERANCE OF EVIDENCE
  Civil action.....................................  300.516(c)(3).
 
PRESCHOOL GRANTS
  Allocations to LEAs..............................  300.816.
    Ο Subgrants to LEAs............................  300.815.
  Other State-level activities.....................  300.814.
    Ο Provide early intervention services in         300.814(e).
     accordance with Part C of the Act.
    Ο Service coordination or case management......  300.814(f).
  State administration.............................  300.813.
  Use of funds for administration of Part C........  300.813(b).
 
PRIOR NOTICE
  By public agency.................................  300.503.
  Notice required before a hearing on a due process  300.508(c).
 complaint.
  Procedural safeguards notice.....................  300.504.
 
PRISONS (See ``Adult prisons'')
 
PRIVATE INSURANCE
  Children with disabilities who are covered by....  300.154(e).
    Ο Proceeds from public benefits or insurance or  300.154(g).
     private insurance.
    Ο Use of Part B funds..........................  300.154(f).
 
PRIVATE SCHOOLS AND FACILITIES
  Applicability of this part to State and local
 agencies:
    Ο CWDs placed in private schools by parents      300.2(c)(2).
     under Sec.   300.148.
    Ο 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 FAPE is at   300.148.
 issue.
  See ``Parentally-placed private school children
 with disabilities''
 
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (A-D)
  Applicability of this part to private schools....  300.2(c)(1).
  Applicable standards (SEA to disseminate to        300.147(b).
 private schools involved).
 
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (E-Z)
  Implementation by SEA (Must monitor, provide       300.147.
 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 business   300.512(b).
 days before hearing).
  Agency responsible for conducting hearing........  300.511(b).
  Appeal of hearing decisions; impartial review....  300.514(b).
  Attorneys' fees..................................  300.517.
  Child's status during proceedings................  300.518.
  Civil action.....................................  300.516.
  Consent (Definition).............................  300.9.
  Court (See ``Court(s)'')
 

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PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (D-H)
  Electronic mail (Parent may elect to receive       300.505.
 notices by).
  Evaluation (Definition)..........................  300.15.
  Evaluations: Hearing officer requests for........  300.502(d).
  Finality of decision; appeal; impartial review...  300.514.
  Findings and decision to advisory panel and        300.513(d).
 public.
  Hearing rights...................................  300.512.
 
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.
    Ο Definition...................................  300.502(a)(3)(i).
  Jurisdiction of district courts..................  300.516(d).
    Ο See ``Court(s)''
  Mediation........................................  300.506.
    Ο Opportunity to meet with a disinterested       300.506(b)(2).
     party.
  Model form to assist parties in filing a due       300.509.
 process or State complaint.
  Notice required before a hearing on a due process  300.508(c).
 complaint.
  Opportunity to examine records...................  300.501(a).
  Parental consent.................................  300.300.
  Parent-initiated evaluations.....................  300.502(c).
  Parent involvement in placement decisions........  300.501(c).
  Parent participation in meetings.................  300.501(b).
  Parental rights at hearings......................  300.512(c).
  Parent right to evaluation at public expense.....  300.502(b).
    Ο 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 undisclosed         300.512(a)(3).
 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 majority...  300.520.
 
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).
 

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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'')
 
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 a notice   300.606.
 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 inspect)........  300.613.
    Ο Fees for records.............................  300.617.
    Ο Records on more than one child...............  300.615.
  Civil action (Court shall receive records).......  300.516(c)(1).
  Conducting IEP Team meetings without parents       300.322(d).
 (Records of attempts to convince parents).
Confidentiality (See ``Confidentiality'')
  Consent to release records.......................  300.622(b).
Disciplinary records:
    Ο Determination that behavior not manifestation  300.530(e).
    Ο Disciplinary information.....................  300.229(c).
    Ο 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 (LEA to   300.132(c).
 SEA).
  Opportunity to examine records...................  300.501(a).
  Procedural safeguards notice (Access to education  300.504(c)(4).
 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).
 

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REEVALUATION
  Frequency of occurrence..........................  300.303(b).
  Parental consent required before conducting......  300.300(c)(1).
    Ο If parent fails to consent...................  300.300(c)(1)(ii).
  Parental consent not required for:
    Ο Administering a test that all children take..  300.300(d)(1)(ii).
    Ο 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 reevaluation)........  300.324(b)(1)(ii).
 
REFERRAL (A-M)
  Discipline:
    Ο Referral to and action by law enforcement and  300.535.
     judicial authorities.
    Ο Protections for children not determined        300.534.
     eligible.
  Enforcement (Referral for).......................  300.604(b)(2)(vi).
  Indian children (Referral for services or further  300.712(d)(2).
 diagnosis).
  Medical attention (Referral for):
    Ο Audiology....................................  300.34(c)(1)(ii).
    Ο 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 for          300.503(b)(4).
 evaluation).
  Private school placement when FAPE is at issue     300.148(c).
 (Reimbursement when no referral by public agency).
  Procedural safeguards notice (Upon initial         300.504(a)(1).
 referral for evaluation).
  Referral to and action by law enforcement and      300.535.
 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).
    Ο Behavioral interventions.....................  300.324(a)(3)(i).
    Ο Supplementary aids and services..............  300.324(a)(3)(ii).
 
REGULATIONS
  Applicable regulations (Secretary of the           300.716.
 Interior).
  Applicability of this part to State, local, and    300.2.
 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:
    Ο Definition...................................  300.34(c)(12).
    Ο 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:
    Ο Limitation on reimbursement..................  300.148(d).
    Ο Reimbursement for private school placement...  300.148(c).

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    Ο Subject to due process procedures............  300.148(b).
  Reimbursement by non-educational public agency...  300.154(b)(2).
  Reimbursement by SEA to LEA......................  300.704(c)(7).
 
RELATED SERVICES
  Definition.......................................  300.34.
  Observations by teachers and related services      300.305(a)(1)(iii).
 providers regarding existing evaluation data.
 
RELATION OF PART B TO OTHER FEDERAL PROGRAMS...............  300.186.
 
RELIGIOUS SCHOOLS
  Child find for parentally-placed private school    300.131(a).
 children.
  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.
    Ο See also Sec.  Sec.   300.641 through 300.646
  Annual report to Secretary of Interior by          300.715(a).
 advisory board on Indian children.
  Biennial report (Indian tribes)..................  300.712(e).
  Child count (Annual report of children served)...  300.641.
 
REPORTS (D-Z)
  Evaluation reports to parents....................  300.306(a)(2).
  Monitoring compliance of publicly placed children  300.147(a).
 in private schools (e.g., written reports).
  Monitoring reports (Waiver of nonsupplanting       300.164(c)(3).
 requirement).
  Performance goals (Progress reports).............  300.157(c).
  Secretary's report to States regarding 25% of      300.812(b).
 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

[[Page 168]]

 
  For all education programs.......................  300.149.
  For direct services..............................  300.227.
  For each parentally-placed private school child    300.132(b).
 designated to receive services.
  For impartial review.............................  300.514(b)(2).
  Prohibition of LEA from reducing maintenance of    300.608.
 effort.
 
SECRETARY
  Determination that a State is eligible...........  300.178.
  Notice and hearing before determining that a       300.179.
 State is not eligible.
  Waiver of nonsupplanting requirement.............  300.164.
 
SECRETARY OF THE INTERIOR
  Advisory board establishment.....................  300.714.
    Ο Annual report by advisory board..............  300.715.
  Biennial report (By tribe or tribal organization)  300.712(e).
  Eligibility (see Sec.  Sec.   300.708 through
 300.716)
  Payments for:
    Ο Children aged 3 through 5....................  300.712.
    Ο Child find and screening.....................  300.712(d).
  Plan for coordination of services................  300.713.
  Use of funds for early intervening services......  300.711.
 
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 associated     300.701(a)(3).
 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

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  Definition.......................................  300.8(c)(10).
  Evaluation requirements and report (see Sec.
 Sec.   300.306(a), 300.307 through 300.311)
  Other alternative research-based procedures......  300.307(a)(3).
  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:
    Ο Definition...................................  300.35.
    Ο Enforcement..................................  300.604(a)(1)(ii).
  Severe discrepancy...............................  300.307(a)(1).
 
SPEECH-LANGUAGE PATHOLOGY SERVICES
  Definition.......................................  300.34(b)(15).
  Speech or language impairment (Definition).......  300.8(c)(11).
 
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 has       300.164(c)(4).
 consulted with advisory panel regarding provision of FAPE).
 
STATE AGENCIES
  Applicability of Part B to other State agencies..  300.2(b)(1)(iii).
  Compliance (LEA and State agency)................  300.222.
  Eligibility (LEA and State agency):
    Ο General conditions (see Sec.  Sec.   300.200
     through 300.213)
  Notification of LEA or State agency in case of     300.221.
 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 Secretary)..  300.178.
  General conditions...............................  300.100.
  Notice and hearing before determining that a       300.179.
 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.
 

[[Page 170]]

 
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 for          300.2(b)(1)(iii).
 children with deafness or blindness.
 
STATE VOCATIONAL REHABILITATION AGENCY (See
 ``Rehabilitation'')
 
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 teacher    300.324(a)(3)(ii).
 (IEP).
  Services that also benefit nondisabled children..  300.208(a)(1).
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 expelled....  300.704(b)(4)(ix).
  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 (Between Oct. 1   300.641(a).
 and Dec. 1).
  Annual count of parentally-placed private school   300.133(c).
 children (Between Oct. 1 and Dec. 1).

[[Page 171]]

 
  Assignment of surrogate parent (Not more than 30   300.519(h).
 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).
    Ο 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)):
    Ο Conducted within 20 school days; decision      300.532(c)(2).
     within 10 school days.
    Ο Decision within 45 days after expiration of    300.515(a).
     30 day period.
    Ο Disclose evaluations before hearings (5        300.512(a)(3).
     business days).
 
TIMELINES (E-H)
  Hearing procedures (State eligibility: 30 days)..  300.179(b)(3).
  Hearing rights:
    Ο Disclosure of evaluations (At least 5          300.512(b)(1).
     business days before hearing).
    Ο Prohibit introduction of evidence not          300.512(a)(3).
     disclosed (At least 5 business days before hearing).
    Ο 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 (At least   300.148(d)(2).
 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 and reviews  300.515.
 
TIMELINES--DISCIPLINE (A-P)
  Authority of hearing officer (May order change of  300.532(b)(2)(ii).
 placement for not more than 45 school days).
  Authority of school personnel:
    Ο Change of placement for not more than 45       300.530(g).
     consecutive days for weapons or drugs.
    Ο Removal of a child for not more than 10        300.530(b).
     school days.
  Change of placement for disciplinary removals:
    Ο Of more than 10 consecutive school days......  300.536(a)(1).
    Ο 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:
    Ο Conducted within 20 days.....................  300.532(c)(2).
    Ο Decision within 10 days......................  300.532(c)(3)(i).
  Hearing officer (Order change of placement for     300.532(b)(2)(ii).
 not more than 45 days).
  Manifestation determination review (Conducted in   300.530(e).
 no more than 10 school days).
  Placement during appeals (Not longer than 45       300.532(b)(2)(ii).
 days).
 
TIMELINES--DISCIPLINE (Q-Z)
  Removals for not more than:
    Ο 10 school days (By school personnel).........  300.530(b).
    Ο 45 days (To interim alternative educational    300.532(b)(2)(ii).
     setting).

[[Page 172]]

 
        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 using        300.623(c).
 personally identifiable information must receive training).
  Parent counseling and training...................  300.34(b)(8).
  Technical assistance and training for teachers     300.119.
 and administrators.
  Travel training (see Sec.   300.39(a)(2)(ii),
 (b)(4))
 
TRANSFER DURING ACADEMIC YEAR
  Assessments coordinated between public agencies..  300.304(c)(5).
  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)
    Ο Transition service needs.....................  300.320(b).
    Ο 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.
 

[[Page 173]]

 
USE OF FUNDS BY STATES (SEAs) (A-C)
  Administering Part B State activities............  300.704(a)(1).
  Administering Part C (If SEA is Lead Agency).....  300.704(a)(4).
  Administrative costs of monitoring and complaint   300.704(b)(3)(i).
 investigations.
  Allowable costs..................................  300.704(b)(3).
  Amount for State administration..................  300.704(a)
  Annual description of use of Part B funds........  300.171.
  Assist LEAs in meeting personnel shortages.......  300.704(b)(4)(vii).
  Complaint investigations.........................  300.704(b)(3)(i).
  Coordination of activities with other programs...  300.704(b)(1).
USE OF FUNDS BY STATES (SEAs) (D-Z)
  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:
    Ο To LEAs......................................  300.704(b)(4)(xi).
    Ο 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:
    Ο For child find for children aged 3 throught 5  300.712(d).
    Ο 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 prohibit      300.704(d).
 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 circumstances   300.163(c).
 (State maintenance of effort).
  ``In whole or in part''..........................  300.164(e).
  Public benefits or insurance (Risk of loss of      300.154(d)(2)(iii)(D).
 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).

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  See ``Surrogate parents''........................  300.519(a)(3).
 
WEAPON (Definition)........................................  300.530(i)(4).
 
WHEN IEPS MUST BE IN EFFECT................................  300.323.
 


[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007. 
Redesignated at 80 FR 23667, Apr. 28, 2015]



PART 303_EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH DISABILITIES

                            Subpart A_General

                   Purpose and Applicable Regulations

Sec.
303.1 Purpose of the early intervention program for infants and toddlers 
          with disabilities.
303.2 Eligible recipients of an award and applicability of this part.
303.3 Applicable regulations.

                      Definitions Used in This Part

303.4 Act.
303.5 At-risk infant or toddler.
303.6 Child.
303.7 Consent.
303.8 Council.
303.9 Day.
303.10 Developmental delay.
303.11 Early intervention service program.
303.12 Early intervention service provider.
303.13 Early intervention services.
303.14 Elementary school.
303.15 Free appropriate public education.
303.16 Health services.
303.17 Homeless children.
303.18 Include; including.
303.19 Indian; Indian tribe.
303.20 Individualized family service plan.
303.21 Infant or toddler with a disability.
303.22 Lead agency.
303.23 Local educational agency.
303.24 Multidisciplinary.
303.25 Native language.
303.26 Natural environments.
303.27 Parent.
303.28 Parent training and information center.
303.29 Personally identifiable information.
303.30 Public agency.
303.31 Qualified personnel.
303.32 [Reserved]
303.33 Secretary.
303.34 Service coordination services (case management).
303.35 State.
303.36 State educational agency.
303.37 Ward of the State.

Subpart B_State Eligibility for a Grant and Requirements for a Statewide 
                                 System

                    General Authority and Eligibility

303.100 General authority.
303.101 State eligibility--requirements for a grant under this part.

    State Conformity With Part C of the Act and Abrogation of State 
                           Sovereign Immunity

303.102 State conformity with Part C of the Act.
303.103 Abrogation of State sovereign immunity.

                       Equipment and Construction

303.104 Acquisition of equipment and construction or alteration of 
          facilities.

   Positive Efforts To Employ and Advance Qualified Individuals With 
                              Disabilities

303.105 Positive efforts to employ and advance qualified individuals 
          with disabilities.

                Minimum Components of a Statewide System

303.110 Minimum components of a statewide system.
303.111 State definition of developmental delay.
303.112 Availability of early intervention services.
303.113 Evaluation, assessment, and nondiscriminatory procedures.
303.114 Individualized family service plan (IFSP).
303.115 Comprehensive child find system.
303.116 Public awareness program.
303.117 Central directory.
303.118 Comprehensive system of personnel development (CSPD).
303.119 Personnel standards.
303.120 Lead agency role in supervision, monitoring, funding, 
          interagency coordination, and other responsibilities.
303.121 Policy for contracting or otherwise arranging for services.
303.122 Reimbursement procedures.
303.123 Procedural safeguards.
303.124 Data collection.
303.125 State interagency coordinating council.
303.126 Early intervention services in natural environments.

[[Page 175]]

               Subpart C_State Application and Assurances

                                 General

303.200 State application and assurances.

                        Application Requirements

303.201 Designation of lead agency.
303.202 Certification regarding financial responsibility.
303.203 Statewide system and description of services.
303.204 Application's definition of at-risk infants and toddlers and 
          description of services.
303.205 Description of use of funds.
303.206 Referral policies for specific children.
303.207 Availability of resources.
303.208 Public participation policies and procedures.
303.209 Transition to preschool and other programs.
303.210 Coordination with Head Start and Early Head Start, early 
          education, and child care programs.
303.211 State option to make services under this part available to 
          children ages three and older.
303.212 Additional information and assurances.

                               Assurances

303.220 Assurances satisfactory to the Secretary.
303.221 Expenditure of funds.
303.222 Payor of last resort.
303.223 Control of funds and property.
303.224 Reports and records.
303.225 Prohibition against supplanting; indirect costs.
303.226 Fiscal control.
303.227 Traditionally underserved groups.

 Subsequent Applications and Modifications, Eligibility Determinations, 
                       and Standard of Disapproval

303.228 Subsequent State application and modifications of application.
303.229 Determination by the Secretary that a State is eligible.
303.230 Standard for disapproval of an application.

                          Department Procedures

303.231 Notice and hearing before determining that a State is not 
          eligible.
303.232 Hearing Official or Panel.
303.233 Hearing procedures.
303.234 Initial decision; final decision.
303.235 Filing requirements.
303.236 Judicial review.

 Subpart D_Child Find, Evaluations and Assessments, and Individualized 
                          Family Service Plans

                                 General

303.300 General.

 Pre-Referral Procedures--Public Awareness Program and Child Find System

303.301 Public awareness program--information for parents.
303.302 Comprehensive child find system.

                           Referral Procedures

303.303 Referral procedures.
303.304-303.309 [Reserved]

   Post-Referral Procedures--Screenings, Evaluations, and Assessments

303.310 Post-referral timeline (45 days).
303.311-303.319 [Reserved]
303.320 Screening procedures (optional).
303.321 Evaluation of the child and assessment of the child and family.
303.322 Determination that a child is not eligible.

                Individualized Family Service Plan (IFSP)

303.340 Individualized family service plan--general.
303.341 [Reserved]
303.342 Procedures for IFSP development, review, and evaluation.
303.343 IFSP Team meeting and periodic review.
303.344 Content of an IFSP.
303.345 Interim IFSPs--provision of services before evaluations and 
          assessments are completed.
303.346 Responsibility and accountability.

                     Subpart E_Procedural Safeguards

                                 General

303.400 General responsibility of lead agency for procedural safeguards.

    Confidentiality of Personally Identifiable Information and Early 
                          Intervention Records

303.401 Confidentiality and opportunity to examine records.
303.402 Confidentiality.
303.403 Definitions.
303.404 Notice to parents.
303.405 Access rights.
303.406 Record of access.
303.407 Records on more than one child.
303.408 List of types and locations of information.
303.409 Fees for records.
303.410 Amendment of records at a parent's request.

[[Page 176]]

303.411 Opportunity for a hearing.
303.412 Result of hearing.
303.413 Hearing procedures.
303.414 Consent prior to disclosure or use.
303.415 Safeguards.
303.416 Destruction of information.
303.417 Enforcement.

                       Parental Consent and Notice

303.420 Parental consent and ability to decline services.
303.421 Prior written notice and procedural safeguards notice.

                            Surrogate Parents

303.422 Surrogate parents.

                       Dispute Resolution Options

303.430 State dispute resolution options.

                                Mediation

303.431 Mediation.

                       State Complaint Procedures

303.432 Adoption of State complaint procedures.
303.433 Minimum State complaint procedures.
303.434 Filing a complaint.

 States That Choose To Adopt the Part C Due Process Hearing Procedures 
                      Under Section 639 of the Act

303.435 Appointment of an impartial due process hearing officer.
303.436 Parental rights in due process hearing proceedings.
303.437 Convenience of hearings and timelines.
303.438 Civil action.

 States That Choose To Adopt the Part B Due Process Hearing Procedures 
                      Under Section 615 of the Act

303.440 Filing a due process complaint.
303.441 Due process complaint.
303.442 Resolution process.
303.443 Impartial due process hearing.
303.444 Hearing rights.
303.445 Hearing decisions.
303.446 Finality of decision; appeal; impartial review.
303.447 Timelines and convenience of hearings and reviews.
303.448 Civil action.
303.449 State enforcement mechanisms.

             Subpart F_Use of Funds and Payor of Last Resort

                                 General

303.500 Use of funds, payor of last resort and system of payments.

                              Use of Funds

303.501 Permissive use of funds by the lead agency.

                Payor of Last Resort--General Provisions

303.510 Payor of last resort.
303.511 Methods to ensure the provision of, and financial responsibility 
          for, Part C services.

Payor of Last Resort & System of Payments Provisions--Use of Insurance, 
                 Benefits, Systems of Payments, and Fees

303.520 Policies related to use of insurance to pay for Part C services.
303.521 System of payments and fees.

            Subpart G_State Interagency Coordinating Council

303.600 Establishment of Council.
303.601 Composition.
303.602 Meetings.
303.603 Use of funds by the Council.
303.604 Functions of the Council--required duties.
303.605 Authorized activities by the Council.

  Subpart H_-State Monitoring and Enforcement; Federal Monitoring and 
             Enforcement; Reporting; and Allocation of Funds

              Federal and State Monitoring and Enforcement

303.700 State monitoring and enforcement.
303.701 State performance plans and data collection.
303.702 State use of targets and reporting.
303.703 Secretary's review and determination regarding State 
          performance.
303.704 Enforcement.
303.705 Withholding funds.
303.706 Public attention.
303.707 Rule of construction.
303.708 State enforcement.

                      Reports--Program Information

303.720 Data requirements--general.
303.721 Annual report of children served--report requirement.
303.722 Data reporting.
303.723 Annual report of children served--certification.
303.724 Annual report of children served--other responsibilities of the 
          lead agency.

                           Allocation of Funds

303.730 Formula for State allocations.
303.731 Payments to Indians.
303.732 State allotments.
303.733 Reallotment of funds.
303.734 Reservation for State incentive grants.

[[Page 177]]


Appendix A to Part 303--Index for IDEA Part C Regulations

    Authority: 20 U.S.C. 1431 through 1444, unless otherwise noted.

    Source: 76 FR 60244, Sept. 28, 2011, unless otherwise noted.

                            Subpart A_General

                   Purpose and Applicable Regulations

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) Develop and implement a statewide, comprehensive, coordinated, 
multidisciplinary, interagency system that provides 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 State 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;
    (d) Enhance the capacity of State and local agencies and service 
providers to identify, evaluate, and meet the needs of all children, 
including historically underrepresented populations, particularly 
minority, low-income, inner-city, and rural children, and infants and 
toddlers in foster care; and
    (e) Encourage States to expand opportunities for children under 
three years of age who would be at risk of having substantial 
developmental delay if they did not receive early intervention services.

(Authority: 20 U.S.C. 1400(d)(2), 1431(a)(5), 1431(b))

Sec.  303.2  Eligible recipients of an award and applicability of this 
          part.

    (a) 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 United States Virgin Islands, and the Commonwealth 
of the Northern Mariana Islands.
    (b) Applicability of this part. (1) The provisions of this part 
apply to--
    (i) The State lead agency and any EIS provider that is part of the 
statewide system of early intervention, regardless of whether that EIS 
provider receives funds under part C of the Act; and
    (ii) All children referred to the part C program, including infants 
and toddlers with disabilities consistent with the definitions in 
Sec. Sec.  303.6 and 303.21, and their families.
    (2) The provisions of this part do not apply to any child with a 
disability receiving a free appropriate public education or FAPE under 
34 CFR part 300.

(Authority: 20 U.S.C. 1401(31), 1434, 1435(a)(10)(A))

Sec.  303.3  Applicable regulations.

    (a) The following regulations apply to this part:
    (1) The regulations in this part 303.
    (2) EDGAR, including 34 CFR parts 76 (except for Sec.  76.103), 77, 
79, 81, 82, 84, and 86.
    (3) The Uniform Administrative Requirements, Cost Principles, and 
Audit Requirements for Federal Awards in 2 CFR part 200, as adopted in 
part 3474, and the OMB Guidelines to Agencies on Governmentwide 
Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted 
in 2 CFR part 3485.
    (b) In applying the regulations cited in paragraph (a)(2) of this 
section, any reference to--
    (1) State educational agency means the lead agency under this part; 
and
    (2) Education records or records means early intervention records.

(Authority: 20 U.S.C. 1221(b), 1221e-3, 1431-1444)

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014

                      Definitions Used in This Part

Sec.  303.4  Act.

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

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

[[Page 178]]

Sec.  303.5  At-risk infant or toddler.

    At-risk infant or toddler means an individual under three years of 
age who would be at risk of experiencing a substantial developmental 
delay if early intervention services were not provided to the 
individual. At the State's discretion, at-risk infant or toddler may 
include an infant or toddler who is at risk of experiencing 
developmental delays because of biological or environmental factors that 
can be identified (including low birth weight, respiratory distress as a 
newborn, lack of oxygen, brain hemorrhage, infection, nutritional 
deprivation, a history of abuse or neglect, and being directly affected 
by illegal substance abuse or withdrawal symptoms resulting from 
prenatal drug exposure).

(Authority: 20 U.S.C. 1432(1), 1432(5)(B)(i) and 1437(a)(6))

Sec.  303.6  Child.

    Child means an individual under the age of six and may include an 
infant or toddler with a disability, as that term is defined in Sec.  
303.21.

(Authority: 20 U.S.C. 1432(5))

Sec.  303.7  Consent.

    Consent means that--
    (a) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in the parent's native 
language, as defined in Sec.  303.25;
    (b) The parent understands and agrees in writing to the carrying out 
of the activity for which the parent's consent is sought, and the 
consent form describes that activity and lists the early intervention 
records (if any) that will be released and to whom they will be 
released; 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 apply to an action that occurred before the consent 
was revoked).

(Authority: 20 U.S.C. 1439)

Sec.  303.8  Council.

    Council means the State Interagency Coordinating Council that meets 
the requirements of subpart G of this part.

(Authority: 20 U.S.C. 1432(2))

Sec.  303.9  Day.

    Day means calendar day, unless otherwise indicated.

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

Sec.  303.10  Developmental delay.

    Developmental delay, when used with respect to a child residing in a 
State, has the meaning given that term by the State under Sec.  303.111.

(Authority: 20 U.S.C. 1432(3))

Sec.  303.11  Early intervention service program.

    Early intervention service program or EIS program means an entity 
designated by the lead agency for reporting under Sec. Sec.  303.700 
through 303.702.

(Authority: 20 U.S.C. 1416, 1431-1444)

Sec.  303.12  Early intervention service provider.

    (a) Early intervention service provider or EIS provider means an 
entity (whether public, private, or nonprofit) or an individual that 
provides early intervention services under part C of the Act, whether or 
not the entity or individual receives Federal funds under part C of the 
Act, and may include, where appropriate, the lead agency and a public 
agency responsible for providing early intervention services to infants 
and toddlers with disabilities in the State under part C of the Act.
    (b) An EIS provider is responsible for--
    (1) Participating in the multidisciplinary individualized family 
service plan (IFSP) Team's ongoing assessment of an infant or toddler 
with a disability and a family-directed assessment of the resources, 
priorities, and concerns of the infant's or toddler's family, as related 
to the needs of the infant or toddler, in the development of integrated 
goals and outcomes for the IFSP;
    (2) Providing early intervention services in accordance with the 
IFSP of the infant or toddler with a disability; and

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    (3) Consulting with and training parents and others regarding the 
provision of the early intervention services described in the IFSP of 
the infant or toddler with a disability.

(Authority: 20 U.S.C. 1431-1444)

Sec.  303.13  Early intervention services.

    (a) General. Early intervention services means developmental 
services that--
    (1) Are provided under public supervision;
    (2) Are selected in collaboration with the parents;
    (3) Are provided at no cost, except, subject to Sec. Sec.  303.520 
and 303.521, where Federal or State law provides for a system of 
payments by families, including a schedule of sliding fees;
    (4) Are designed to meet the developmental needs of an infant or 
toddler with a disability and the needs of the family to assist 
appropriately in the infant's or toddler's development, as identified by 
the IFSP Team, in any one or more of the following areas, including--
    (i) Physical development;
    (ii) Cognitive development;
    (iii) Communication development;
    (iv) Social or emotional development; or
    (v) Adaptive development;
    (5) Meet the standards of the State in which the early intervention 
services are provided, including the requirements of part C of the Act;
    (6) Include services identified under paragraph (b) of this section;
    (7) Are provided by qualified personnel (as that term is defined in 
Sec.  303.31), including the types of personnel listed in paragraph (c) 
of this section;
    (8) To the maximum extent appropriate, are provided in natural 
environments, as defined in Sec.  303.26 and consistent with Sec. Sec.  
303.126 and 303.344(d); and
    (9) Are provided in conformity with an IFSP adopted in accordance 
with section 636 of the Act and Sec.  303.20.
    (b) Types of early intervention services. Subject to paragraph (d) 
of this section, early intervention services include the following 
services defined in this paragraph:
    (1) Assistive technology device and service are defined as follows:
    (i) 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 infant or toddler with a disability. 
The term does not include a medical device that is surgically implanted, 
including a cochlear implant, or the optimization (e.g., mapping), 
maintenance, or replacement of that device.
    (ii) Assistive technology service means any service that directly 
assists an infant or toddler with a disability in the selection, 
acquisition, or use of an assistive technology device. The term 
includes--
    (A) The evaluation of the needs of an infant or toddler with a 
disability, including a functional evaluation of the infant or toddler 
with a disability in the child's customary environment;
    (B) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by infants or toddlers 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 an infant or toddler 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) or other 
individuals who provide services to, or are otherwise substantially 
involved in the major life functions of, infants and toddlers with 
disabilities.
    (2) Audiology services include--
    (i) Identification of children with auditory impairments, 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

[[Page 180]]

or rehabilitation of an infant or toddler with a disability who has an 
auditory impairment;
    (iv) Provision of auditory training, aural rehabilitation, speech 
reading and listening devices, orientation and training, and other 
services;
    (v) Provision of services for prevention of hearing loss; and
    (vi) Determination of the child's 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 an infant or toddler with a 
disability in understanding the special needs of the child and enhancing 
the child's development.
    (4) Health services has the meaning given the term in Sec.  303.16.
    (5) Medical services means services provided by a licensed physician 
for diagnostic or evaluation purposes to determine a child's 
developmental status and need for early intervention services.
    (6) Nursing services include--
    (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) The provision of nursing care to prevent health problems, 
restore or improve functioning, and promote optimal health and 
development; and
    (iii) The administration of medications, treatments, and regimens 
prescribed by a licensed physician.
    (7) Nutrition services include--
    (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 (b)(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 an infant or toddler with a disability 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 children 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 include--
    (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

[[Page 181]]

    (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 has the meaning given the term in 
Sec.  303.34.
    (12) Sign language and cued language services include teaching sign 
language, cued language, and auditory/oral language, providing oral 
transliteration services (such as amplification), and providing sign and 
cued language interpretation.
    (13) Social work services include--
    (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 
infant or toddler 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 infant or toddler and parents;
    (iv) Working with those problems in the living situation (home, 
community, and any center where early intervention services are 
provided) of an infant or toddler with a disability and the family of 
that child that affect the child's maximum utilization of early 
intervention services; and
    (v) Identifying, mobilizing, and coordinating community resources 
and services to enable the infant or toddler with a disability and the 
family to receive maximum benefit from early intervention services.
    (14) Special instruction includes--
    (i) The design of learning environments and activities that promote 
the infant's or toddler'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 IFSP for the infant or toddler with a disability;
    (iii) Providing families with information, skills, and support 
related to enhancing the skill development of the child; and
    (iv) Working with the infant or toddler with a disability to enhance 
the child's development.
    (15) Speech-language pathology services include--
    (i) Identification of children with communication or language 
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 communication or 
language disorders and delays in development of communication skills; 
and
    (iii) Provision of services for the habilitation, rehabilitation, or 
prevention of communication or language disorders and delays in 
development of communication skills.
    (16) Transportation and related costs include the cost of travel and 
other costs that are necessary to enable an infant or toddler with a 
disability and the child's family to receive early intervention 
services.
    (17) Vision services mean--
    (i) Evaluation and assessment of visual functioning, including the 
diagnosis and appraisal of specific visual disorders, delays, and 
abilities that affect early childhood development;
    (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, and additional training 
necessary to activate visual motor abilities.
    (c) Qualified personnel. The following are the types of qualified 
personnel who provide early intervention services under this part:
    (1) Audiologists.
    (2) Family therapists.
    (3) Nurses.
    (4) Occupational therapists.
    (5) Orientation and mobility specialists.
    (6) Pediatricians and other physicians for diagnostic and evaluation 
purposes.
    (7) Physical therapists.
    (8) Psychologists.
    (9) Registered dieticians.

[[Page 182]]

    (10) Social workers.
    (11) Special educators, including teachers of children with hearing 
impairments (including deafness) and teachers of children with visual 
impairments (including blindness).
    (12) Speech and language pathologists.
    (13) Vision specialists, including ophthalmologists and 
optometrists.
    (d) Other services. The services and personnel identified and 
defined in paragraphs (b) and (c) of this section do not comprise 
exhaustive lists of the types of services that may constitute early 
intervention services or the types of qualified personnel that may 
provide early intervention services. Nothing in this section prohibits 
the identification in the IFSP of another type of service as an early 
intervention service provided that the service meets the criteria 
identified in paragraph (a) of this section or of another type of 
personnel that may provide early intervention services in accordance 
with this part, provided such personnel meet the requirements in Sec.  
303.31.

(Authority: 20 U.S.C. 1432(4))

Sec.  303.14  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.  303.15  Free appropriate public education.

    Free appropriate public education or FAPE, as used in Sec. Sec.  
303.211, 303.501, and 303.521, 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 State educational agency (SEA), 
including the requirements of part B of the Act;
    (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 34 CFR 300.320 through 
300.324.

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

Sec.  303.16  Health services.

    (a) Health services mean services necessary to enable an otherwise 
eligible child to benefit from the other early intervention services 
under this part during the time that the child is eligible to receive 
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 infants and toddlers with 
disabilities that will need to be addressed in the course of providing 
other early intervention services.
    (c) The term does not include--
    (1) Services that are--
    (i) Surgical in nature (such as cleft palate surgery, surgery for 
club foot, or the shunting of hydrocephalus);
    (ii) Purely medical in nature (such as hospitalization for 
management of congenital heart ailments, or the prescribing of medicine 
or drugs for any purpose); or
    (iii) Related to the implementation, optimization (e.g., mapping), 
maintenance, or replacement of a medical device that is surgically 
implanted, including a cochlear implant.
    (A) Nothing in this part limits the right of an infant or toddler 
with a disability with a surgically implanted device (e.g., cochlear 
implant) to receive the early intervention services that are identified 
in the child's IFSP as being needed to meet the child's developmental 
outcomes.
    (B) Nothing in this part prevents the EIS provider from routinely 
checking that either the hearing aid or the external components of a 
surgically implanted device (e.g., cochlear implant) of an infant or 
toddler with a disability are functioning properly;
    (2) Devices (such as heart monitors, respirators and oxygen, and 
gastrointestinal feeding tubes and pumps) necessary to control or treat 
a medical condition; and
    (3) Medical-health services (such as immunizations and regular 
``well-

[[Page 183]]

baby'' care) that are routinely recommended for all children.

(Authority: 20 U.S.C. 1432(4))

Sec.  303.17  Homeless children.

    Homeless children means children who meet the definition 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.  303.18  Include; including.

    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. 1221e-3)

Sec.  303.19  Indian; 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)-(13))

Sec.  303.20  Individualized family service plan.

    Individualized family service plan or IFSP means a written plan for 
providing early intervention services to an infant or toddler with a 
disability under this part and the infant's or toddler's family that--
    (a) Is based on the evaluation and assessment described in Sec.  
303.321;
    (b) Includes the content specified in Sec.  303.344;
    (c) Is implemented as soon as possible once parental consent for the 
early intervention services in the IFSP is obtained (consistent with 
Sec.  303.420); and
    (d) Is developed in accordance with the IFSP procedures in 
Sec. Sec.  303.342, 303.343, and 303.345.

(Authority: 20 U.S.C. 1401(15), 1435(a)(4), 1436)

Sec.  303.21  Infant or toddler with a disability.

    (a) Infant or toddler with a disability means an individual under 
three years of age who needs early intervention services because the 
individual--
    (1) Is experiencing a developmental delay, 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) Has a diagnosed physical or mental condition that--
    (i) Has a high probability of resulting in developmental delay; and
    (ii) Includes conditions such as chromosomal abnormalities; genetic 
or congenital disorders; sensory impairments; inborn errors of 
metabolism; disorders reflecting disturbance of the development of the 
nervous system; congenital infections; severe attachment disorders; and 
disorders secondary to exposure to toxic substances, including fetal 
alcohol syndrome.
    (b) Infant or toddler with a disability may include, at a State's 
discretion, an at-risk infant or toddler (as defined in Sec.  303.5).
    (c) Infant or toddler with a disability may include, at a State's 
discretion, a child with a disability who is eligible for services under 
section 619 of the Act and who previously received services under this 
part until the child enters, or is eligible under State law to enter, 
kindergarten or elementary school, as appropriate, provided that any 
programs under this part must include--
    (1) An educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills for children 
ages three

[[Page 184]]

and older who receive part C services pursuant to Sec.  303.211; and
    (2) A written notification to parents of a child with a disability 
who is eligible for services under section 619 of the Act and who 
previously received services under this part of their rights and 
responsibilities in determining whether their child will continue to 
receive services under this part or participate in preschool programs 
under section 619 of the Act.

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

Sec.  303.22  Lead agency.

    Lead agency means the agency designated by the State's Governor 
under section 635(a)(10) of the Act and Sec.  303.120 that receives 
funds under section 643 of the Act to administer the State's 
responsibilities under part C of the Act.

(Authority: 20 U.S.C. 1435(a)(10))

Sec.  303.23  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 schools 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 the following:
    (1) Educational service agency, defined as a regional public 
multiservice agency--
    (i) Authorized by State law to develop, manage, and provide services 
or programs to LEAs; and
    (ii) 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.
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary school or secondary school, 
including a public charter school that is established as an LEA under 
State law.
    (3) Entities that meet the definition of intermediate educational 
unit or IEU in section 602(23) of the Act, as in effect prior to June 4, 
1997. Under that definition an intermediate educational unit or IEU 
means any public authority other than an LEA that--
    (i) Is under the general supervision of a State educational agency;
    (ii) Is established by State law for the purpose of providing FAPE 
on a regional basis; and
    (iii) Provides special education and related services to children 
with disabilities within the State.
    (c) BIE-funded schools. The term includes an elementary school or 
secondary school funded by the Bureau of Indian Education, and not 
subject to the jurisdiction of any SEA other than the Bureau of Indian 
Education, 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(5), 1401(19))

Sec.  303.24  Multidisciplinary.

    Multidisciplinary means the involvement of two or more separate 
disciplines or professions and with respect to--
    (a) Evaluation of the child in Sec. Sec.  303.113 and 
303.321(a)(1)(i) and assessments of the child and family in Sec.  
303.321(a)(1)(ii), may include one individual who is qualified in more 
than one discipline or profession; and
    (b) The IFSP Team in Sec.  303.340 must include the involvement of 
the parent and two or more individuals from separate disciplines or 
professions and one of these individuals must be the service coordinator 
(consistent with Sec.  303.343(a)(1)(iv)).

(Authority: 20 U.S.C. 1221e-3, 1435(a)(3), 1436(a)(1), 1436(a)(3))

[[Page 185]]

Sec.  303.25  Native language.

    (a) Native language, when used with respect to an individual who is 
limited English proficient or LEP (as that term is defined in section 
602(18) of the Act), means--
    (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; and
    (2) For evaluations and assessments conducted pursuant to Sec.  
303.321(a)(5) and (a)(6), the language normally used by the child, if 
determined developmentally appropriate for the child by qualified 
personnel conducting the evaluation or assessment.
    (b) Native language, when used with respect to an individual who is 
deaf or hard of hearing, blind or visually impaired, or for an 
individual with no written language, means the mode of communication 
that is normally used by the individual (such as sign language, braille, 
or oral communication).

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

Sec.  303.26  Natural environments.

    Natural environments means settings that are natural or typical for 
a same-aged infant or toddler without a disability, may include the home 
or community settings, and must be consistent with the provisions of 
Sec.  303.126.

(Authority: 20 U.S.C. 1432, 1435, 1436)

Sec.  303.27  Parent.

    (a) Parent means--
    (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 early intervention, educational, health or 
developmental 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.  303.422 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 or 
early intervention service decisions for the child.
    (2) If a judicial decree or order identifies a specific person or 
persons under paragraphs (a)(1) through (a)(4) of this section to act as 
the ``parent'' of a child or to make educational or early intervention 
service decisions on behalf of a child, then the person or persons must 
be determined to be the ``parent'' for purposes of part C of the Act, 
except that if an EIS provider or a public agency provides any services 
to a child or any family member of that child, that EIS provider or 
public agency may not act as the parent for that child.

(Authority: 20 U.S.C. 1401(23), 1439(a)(5))

Sec.  303.28  Parent training and information center.

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

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

Sec.  303.29  Personally identifiable information.

    Personally identifiable information means personally identifiable 
information as defined in 34 CFR 99.3, as amended, except that the term 
``student'' in the definition of personally identifiable information in 
34 CFR 99.3 means ``child'' as used in this part and any reference to 
``school'' means ``EIS provider'' as used in this part.

(Authority: 20 U.S.C. 1415, 1439)

Sec.  303.30  Public agency.

    As used in this part, public agency means the lead agency and any 
other

[[Page 186]]

agency or political subdivision of the State.

(Authority: 20 U.S.C. 1435(a)(10))

Sec.  303.31  Qualified personnel.

    Qualified personnel means personnel who have met State approved or 
recognized certification, licensing, registration, or other comparable 
requirements that apply to the areas in which the individuals are 
conducting evaluations or assessments or providing early intervention 
services.

(Authority: 20 U.S.C. 1432(4)(F))

Sec.  303.32  [Reserved]

Sec.  303.33  Secretary.

    Secretary means the Secretary of Education.

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

Sec.  303.34  Service coordination services (case management).

    (a) General. (1) As used in this part, service coordination services 
mean services provided by a service coordinator to assist and enable an 
infant or toddler with a disability and the child's family to receive 
the services and rights, including procedural safeguards, required under 
this part.
    (2) Each infant or toddler with a disability and the child's family 
must be provided with one service coordinator who is responsible for--
    (i) Coordinating all services required under this part across agency 
lines; and
    (ii) Serving as the single point of contact for carrying out the 
activities described in paragraphs (a)(3) and (b) of this section.
    (3) Service coordination is an active, ongoing process that 
involves--
    (i) Assisting parents of infants and toddlers with disabilities in 
gaining access to, and coordinating the provision of, the early 
intervention services required under this part; and
    (ii) Coordinating the other services identified in the IFSP under 
Sec.  303.344(e) that are needed by, or are being provided to, the 
infant or toddler with a disability and that child's family.
    (b) Specific service coordination services. Service coordination 
services include--
    (1) Assisting parents of infants and toddlers with disabilities in 
obtaining access to needed early intervention services and other 
services identified in the IFSP, including making referrals to providers 
for needed services and scheduling appointments for infants and toddlers 
with disabilities and their families;
    (2) Coordinating the provision of early intervention services and 
other services (such as educational, social, and medical services that 
are not provided for diagnostic or evaluative purposes) that the child 
needs or is being provided;
    (3) Coordinating evaluations and assessments;
    (4) Facilitating and participating in the development, review, and 
evaluation of IFSPs;
    (5) Conducting referral and other activities to assist families in 
identifying available EIS providers;
    (6) Coordinating, facilitating, and monitoring the delivery of 
services required under this part to ensure that the services are 
provided in a timely manner;
    (7) Conducting follow-up activities to determine that appropriate 
part C services are being provided;
    (8) Informing families of their rights and procedural safeguards, as 
set forth in subpart E of this part and related resources;
    (9) Coordinating the funding sources for services required under 
this part; and
    (10) Facilitating the development of a transition plan to preschool, 
school, or, if appropriate, to other services.
    (c) Use of the term service coordination or service coordination 
services. The lead agency's or an EIS provider's use of the term service 
coordination or service coordination services does not preclude 
characterization of the services as case management or any other service 
that is covered by another payor of last resort (including Title XIX of 
the Social Security Act--Medicaid), for purposes of claims in compliance 
with the requirements of Sec. Sec.  303.501 through 303.521 (Payor of 
last resort provisions).

(Authority: 20 U.S.C. 1432(4), 1435(a)(4), 1436(d)(7), 1440)

[[Page 187]]

Sec.  303.35  State.

    Except as provided in Sec.  303.732(d)(3) (regarding State 
allotments under this part), State means each of the 50 States, the 
Commonwealth of Puerto Rico, the District of Columbia, and the four 
outlying areas and jurisdictions of Guam, American Samoa, the United 
States Virgin Islands, and the Commonwealth of the Northern Mariana 
Islands.

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

Sec.  303.36  State educational agency.

    (a) State educational agency or SEA means the State board of 
education or other agency or officer primarily responsible for the State 
supervision of 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.
    (b) The term includes the agency that receives funds under sections 
611 and 619 of the Act to administer the State's responsibilities under 
part B of the Act.

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

Sec.  303.37  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.  
303.27.

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

Subpart B_State Eligibility for a Grant and Requirements for a Statewide 
                                 System

                    General Authority and Eligibility

Sec.  303.100  General authority.

    The Secretary, in accordance with part C of the Act, makes grants to 
States (from their allotments under section 643 of the Act) to assist 
each State to maintain and implement a statewide, comprehensive, 
coordinated, multidisciplinary, interagency system to provide early 
intervention services for infants and toddlers with disabilities and 
their families.

(Authority: 20 U.S.C. 1433)

Sec.  303.101  State eligibility--requirements for a grant under this 
          part.

    In order to be eligible for a grant under part C of the Act for any 
fiscal year, a State must meet the following conditions:
    (a) Assurances regarding early intervention services and a statewide 
system. The State must provide assurances to the Secretary that--
    (1) The State has adopted a policy that appropriate early 
intervention services, as defined in Sec.  303.13, are available to all 
infants and toddlers with disabilities in the State and their families, 
including--
    (i) Indian infants and toddlers with disabilities and their families 
residing on a reservation geographically located in the State;
    (ii) Infants and toddlers with disabilities who are homeless 
children and their families; and
    (iii) Infants and toddlers with disabilities who are wards of the 
State; and
    (2) The State has in effect a statewide system of early intervention 
services that meets the requirements of section 635 of the Act, 
including policies and procedures that address, at a minimum, the 
components required in Sec. Sec.  303.111 through 303.126.
    (b) State application and assurances. The State must provide 
information and assurances to the Secretary, in accordance with subpart 
C of this part, including--
    (1) Information that shows that the State meets the State 
application requirements in Sec. Sec.  303.200 through 303.212; and
    (2) Assurances that the State also meets the requirements in 
Sec. Sec.  303.221 through 303.227.
    (c) Approval before implementation. The State must obtain approval 
by the Secretary before implementing any

[[Page 188]]

policy or procedure required to be submitted as part of the State's 
application in Sec. Sec.  303.203, 303.204, 303.206, 303.207, 303.208, 
303.209, and 303.211.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1434, 1435, 1437)

    State Conformity With Part C of the Act and Abrogation of State 
                           Sovereign Immunity

Sec.  303.102  State conformity with Part C of the Act.

    Each State that receives funds under part C of the Act must ensure 
that any State rules, regulations, and policies relating to this part 
conform to the purposes and requirements of this part.

(Authority: 20 U.S.C. 1407(a)(1))

Sec.  303.103  Abrogation of State sovereign immunity.

    (a) General. A State is not immune under the 11th amendment of the 
Constitution of the United States from suit in Federal court for a 
violation of part C of the Act.
    (b) Remedies. In a suit against a State for a violation of part C of 
the Act, remedies (including remedies both at law and in equity) are 
available for such a violation to the same extent as those remedies are 
available for such a violation in a suit against any public entity other 
than a State.
    (c) Effective date. Paragraphs (a) and (b) of this section apply 
with respect to violations that occur in whole or part after October 30, 
1990, the date of enactment of the Education of the Handicapped Act 
Amendments of 1990.

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

                       Equipment and Construction

Sec.  303.104  Acquisition of equipment and construction or alteration 
          of facilities.

    (a) General. If the Secretary determines that a program authorized 
under part C 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 Act Accessibility 
Guidelines 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)

   Positive Efforts To Employ and Advance Qualified Individuals With 
                              Disabilities

Sec.  303.105  Positive efforts to employ and advance qualified 
          individuals with disabilities.

    Each recipient of assistance under part C of the Act must make 
positive efforts to employ and advance in employment, qualified 
individuals with disabilities in programs assisted under part C of the 
Act.

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

                Minimum Components of a Statewide System

Sec.  303.110  Minimum components of a statewide system.

    Each statewide system (system) must include, at a minimum, the 
components described in Sec. Sec.  303.111 through 303.126.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a))

Sec.  303.111  State definition of developmental delay.

    Each system must include the State's rigorous definition of 
developmental delay, consistent with Sec. Sec.  303.10 and 303.203(c), 
that will be used by the State in carrying out programs under part C of 
the Act in order to appropriately identify infants and toddlers with 
disabilities who are in need of services under part C of the Act. The 
definition must--
    (a) Describe, for each of the areas listed in Sec.  303.21(a)(1), 
the evaluation

[[Page 189]]

and assessment procedures, consistent with Sec.  303.321, that will be 
used to measure a child's development; and
    (b) Specify the level of developmental delay in functioning or other 
comparable criteria that constitute a developmental delay in one or more 
of the developmental areas identified in Sec.  303.21(a)(1).

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(1))

Sec.  303.112  Availability of early intervention services.

    Each system must include a State policy that is in effect and that 
ensures that appropriate early intervention services are based on 
scientifically based research, to the extent practicable, and are 
available to all infants and toddlers with disabilities and their 
families, including--
    (a) Indian infants and toddlers with disabilities and their families 
residing on a reservation geographically located in the State; and
    (b) Infants and toddlers with disabilities who are homeless children 
and their families.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(2))

Sec.  303.113  Evaluation, assessment, and nondiscriminatory procedures.

    (a) Subject to paragraph (b) of this section, each system must 
ensure the performance of--
    (1) A timely, comprehensive, multidisciplinary evaluation of the 
functioning of each infant or toddler with a disability in the State; 
and
    (2) A family-directed identification of the needs of the family of 
the infant or toddler to assist appropriately in the development of the 
infant or toddler.
    (b) The evaluation and family-directed identification required in 
paragraph (a) of this section must meet the requirements of Sec.  
303.321.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(3))

Sec.  303.114  Individualized family service plan (IFSP).

    Each system must ensure, for each infant or toddler with a 
disability and his or her family in the State, that an IFSP, as defined 
in Sec.  303.20, is developed and implemented that meets the 
requirements of Sec. Sec.  303.340 through 303.345, and that includes 
service coordination services, as defined in Sec.  303.34.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(4))

Sec.  303.115  Comprehensive child find system.

    Each system must include a comprehensive child find system that 
meets the requirements in Sec. Sec.  303.302 and 303.303.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(5))

Sec.  303.116  Public awareness program.

    Each system must include a public awareness program that--
    (a) Focuses on the early identification of infants and toddlers with 
disabilities; and
    (b) Provides information to parents of infants and toddlers through 
primary referral sources in accordance with Sec.  303.301.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(6))

Sec.  303.117  Central directory.

    Each system must include a central directory that is accessible to 
the general public (i.e., through the lead agency's Web site and other 
appropriate means) and includes accurate, up-to-date information about--
    (a) Public and private early intervention services, resources, and 
experts available in the State;
    (b) Professional and other groups (including parent support, and 
training and information centers, such as those funded under the Act) 
that provide assistance to infants and toddlers with disabilities 
eligible under part C of the Act and their families; and
    (c) Research and demonstration projects being conducted in the State

[[Page 190]]

relating to infants and toddlers with disabilities.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(7))

Sec.  303.118  Comprehensive system of personnel development (CSPD).

    Each system must include a comprehensive system of personnel 
development, including the training of paraprofessionals and the 
training of primary referral sources with respect to the basic 
components of early intervention services available in the State. A 
comprehensive system of personnel development--
    (a) Must include--
    (1) Training personnel to implement innovative strategies and 
activities for the recruitment and retention of EIS providers;
    (2) Promoting the preparation of EIS providers who are fully and 
appropriately qualified to provide early intervention services under 
this part; and
    (3) Training personnel to coordinate transition services for infants 
and toddlers with disabilities who are transitioning from an early 
intervention service program under part C of the Act to a preschool 
program under section 619 of the Act, Head Start, Early Head Start, an 
elementary school program under part B of the Act, or another 
appropriate program.
    (b) May include--
    (1) Training personnel to work in rural and inner-city areas;
    (2) Training personnel in the emotional and social development of 
young children; and
    (3) Training personnel to support families in participating fully in 
the development and implementation of the child's IFSP; and
    (4) Training personnel who provide services under this part using 
standards that are consistent with early learning personnel development 
standards funded under the State Advisory Council on Early Childhood 
Education and Care established under the Head Start Act, if applicable.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(8))

Sec.  303.119  Personnel standards.

    (a) General. Each system must include policies and procedures 
relating to the establishment and maintenance of qualification standards 
to ensure that personnel necessary to carry out the purposes of this 
part are appropriately and adequately prepared and trained.
    (b) Qualification standards. The policies and procedures required in 
paragraph (a) of this section must provide for the establishment and 
maintenance of qualification standards that are consistent with any 
State-approved or State-recognized certification, licensing, 
registration, or other comparable requirements that apply to the 
profession, discipline, or area in which personnel are providing early 
intervention services.
    (c) Use of paraprofessionals and assistants. Nothing in part C of 
the Act may be construed to prohibit the use of paraprofessionals and 
assistants who are appropriately trained and supervised in accordance 
with State law, regulation, or written policy to assist in the provision 
of early intervention services under part C of the Act to infants and 
toddlers with disabilities.
    (d) Policy to address shortage of personnel. 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 infants and toddlers with disabilities, 
including, in a geographic area of the State where there is a shortage 
of such personnel, the most qualified individuals available who are 
making satisfactory progress toward completing applicable course work 
necessary to meet the standards described in paragraphs (a) and (b) of 
this section.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(9), 1435(b))

Sec.  303.120  Lead agency role in supervision, monitoring, funding, 
          interagency coordination, and other responsibilities.

    Each system must include a single line of responsibility in a lead 
agency

[[Page 191]]

designated or established by the Governor that is responsible for the 
following:
    (a)(1) The general administration and supervision of programs and 
activities administered by agencies, institutions, organizations, and 
EIS providers receiving assistance under part C of the Act.
    (2) The monitoring of programs and activities used by the State to 
carry out part C of the Act (whether or not the programs or activities 
are administered by agencies, institutions, organizations, and EIS 
providers that are receiving assistance under part C of the Act), to 
ensure that the State complies with part C of the Act, including--
    (i) Monitoring agencies, institutions, organizations, and EIS 
providers used by the State to carry out part C of the Act;
    (ii) Enforcing any obligations imposed on those agencies, 
institutions, organizations, and EIS providers under part C of the Act 
and these regulations;
    (iii) Providing technical assistance, if necessary, to those 
agencies, institutions, organizations, and EIS providers;
    (iv) Correcting any noncompliance identified through monitoring as 
soon as possible and in no case later than one year after the lead 
agency's identification of the noncompliance; and
    (v) Conducting the activities in paragraphs (a)(2)(i) through 
(a)(2)(iv) of this section, consistent with Sec. Sec.  303.700 through 
303.707, and any other activities required by the State under those 
sections.
    (b) The identification and coordination of all available resources 
for early intervention services within the State, including those from 
Federal, State, local, and private sources, consistent with subpart F of 
this part.
    (c) The assignment of financial responsibility in accordance with 
subpart F of this part.
    (d) The development of procedures in accordance with subpart F of 
this part to ensure that early intervention services are provided to 
infants and toddlers with disabilities and their families under part C 
of the Act in a timely manner, pending the resolution of any disputes 
among public agencies or EIS providers.
    (e) The resolution of intra- and interagency disputes in accordance 
with subpart F of this part.
    (f) The entry into formal interagency agreements or other written 
methods of establishing financial responsibility, consistent with Sec.  
303.511, that define the financial responsibility of each agency for 
paying for early intervention services (consistent with State law) and 
procedures for resolving disputes and that include all additional 
components necessary to ensure meaningful cooperation and coordination 
as set forth in subpart F of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442)

Sec.  303.121  Policy for contracting or otherwise arranging for 
          services.

    Each system must include a policy pertaining to the contracting or 
making of other arrangements with public or private individuals or 
agency service providers to provide early intervention services in the 
State, consistent with the provisions of part C of the Act, including 
the contents of the application, and the conditions of the contract or 
other arrangements. The policy must--
    (a) Include a requirement that all early intervention services must 
meet State standards and be consistent with the provisions of this part; 
and
    (b) Be consistent with 2 CFR part 200, as adopted at 2 CFR part 
3474.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(11))

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

Sec.  303.122  Reimbursement procedures.

    Each system must include procedures for securing the timely 
reimbursement of funds used under part C of the Act, in accordance with 
subpart F of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(12), 1440(a))

[[Page 192]]

Sec.  303.123  Procedural safeguards.

    Each system must include procedural safeguards that meet the 
requirements of subpart E of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(13), 1439)

Sec.  303.124  Data collection.

    (a) Each statewide system must include a system for compiling and 
reporting timely and accurate data that meets the requirements in 
paragraph (b) of this section and Sec. Sec.  303.700 through 303.702 and 
303.720 through 303.724.
    (b) The data system required in paragraph (a) of this section must 
include a description of the process that the State uses, or will use, 
to compile data on infants or toddlers with disabilities receiving early 
intervention services under this part, including a description of the 
State's sampling methods, if sampling is used, for reporting the data 
required by the Secretary under sections 616 and 618 of the Act and 
Sec. Sec.  303.700 through 303.707 and 303.720 through 303.724.

(Approved by Office of Management and Budget under control number 1820-
0550, 1820-0557 and 1820-0578)

(Authority: 20 U.S.C. 1416, 1418(a)-(c), 1435(a)(14), 1442)

Sec.  303.125  State interagency coordinating council.

    Each system must include a State Interagency Coordinating Council 
(Council) that meets the requirements of subpart G of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(15))

Sec.  303.126  Early intervention services in natural environments.

    Each system must include policies and procedures to ensure, 
consistent with Sec. Sec.  303.13(a)(8) (early intervention services), 
303.26 (natural environments), and 303.344(d)(1)(ii) (content of an 
IFSP), that early intervention services for infants and toddlers with 
disabilities are provided--
    (a) To the maximum extent appropriate, in natural environments; and
    (b) In settings other than the natural environment that are most 
appropriate, as determined by the parent and the IFSP Team, only when 
early intervention services cannot be achieved satisfactorily in a 
natural environment.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(16))

               Subpart C_State Application and Assurances

                                 General

Sec.  303.200  State application and assurances.

    Each application must contain--
    (a) The specific State application requirements (including 
certifications, descriptions, methods, and policies and procedures) 
required in Sec. Sec.  303.201 through 303.212; and
    (b) The assurances required in Sec. Sec.  303.221 through 303.227.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437)

                        Application Requirements

Sec.  303.201  Designation of lead agency.

    Each application must include the name of the State lead agency, as 
designated under Sec.  303.120, that will be responsible for the 
administration of funds provided under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(1))

Sec.  303.202  Certification regarding financial responsibility.

    Each application must include a certification to the Secretary that 
the arrangements to establish financial responsibility for the provision 
of part C services among appropriate public agencies under Sec.  303.511 
and the lead agency's contracts with EIS providers regarding financial 
responsibility for the provision of part C services both meet the 
requirements in subpart F of this part (Sec. Sec.  303.500 through 
303.521) and

[[Page 193]]

are current as of the date of submission of the certification.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(2))

Sec.  303.203  Statewide system and description of services.

    Each application must include --
    (a) A description of services to be provided under this part to 
infants and toddlers with disabilities and their families through the 
State's system;
    (b) The State's policies and procedures regarding the identification 
and coordination of all available resources within the State from 
Federal, State, local, and private sources as required under subpart F 
of this part and including--
    (1) Policies or procedures adopted by the State as its system of 
payments that meet the requirements in Sec. Sec.  303.510, 303.520 and 
303.521 (regarding the use of public insurance or benefits, private 
insurance, or family costs or fees); and
    (2) Methods used by the State to implement the requirements in Sec.  
303.511(b)(2) and (b)(3); and
    (c) The State's rigorous definition of developmental delay as 
required under Sec. Sec.  303.10 and 303.111.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 1432(4)(C), 1435(a)(1), 
1435(a)(10)(B), 1437(a)(3), 1440)

Sec.  303.204  Application's definition of at-risk infants and toddlers 
          and description of services.

    If the State provides services under this part to at-risk infants 
and toddlers through the statewide system, the application must 
include--
    (a) The State's definition of at-risk infants and toddlers with 
disabilities who are eligible in the State for services under part C of 
the Act (consistent with Sec. Sec.  303.5 and 303.21(b)); and
    (b) A description of the early intervention services provided under 
this part to at-risk infants and toddlers with disabilities who meet the 
State's definition described in paragraph (a) of this section.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(4))

Sec.  303.205  Description of use of funds.

    (a) General. Each State application must include a description of 
the uses for funds under this part for the fiscal year or years covered 
by the application. The description must be presented separately for the 
lead agency and the Council and include the information required in 
paragraphs (b) through (e) of this section.
    (b) State administration funds including administrative positions. 
For lead agencies other than State educational agencies (SEAs), each 
application must include the total--
    (1) Amount of funds retained by the lead agency for administration 
purposes, including the amount in paragraph (b)(2) of this section; and
    (2) Number of full-time equivalent administrative positions to be 
used to implement part C of the Act, and the total amount of salaries 
(including benefits) for those positions.
    (c) Maintenance and implementation activities. Each application must 
include a description of the nature and scope of each major activity to 
be carried out under this part, consistent with Sec.  303.501, and the 
approximate amount of funds to be spent for each activity.
    (d) Direct services. Each application must include a description of 
any direct services that the State expects to provide to infants and 
toddlers with disabilities and their families with funds under this 
part, consistent with Sec.  303.501, and the approximate amount of funds 
under this part to be used for the provision of each direct service.
    (e) Activities by other public agencies. If other public 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

[[Page 194]]

    (3) A summary of the purposes for which the funds will be used.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(10)(F), 1437(a)(3), 
1437(a)(5))

Sec.  303.206  Referral policies for specific children.

    Each application must include the State's policies and procedures 
that require the referral for early intervention services under this 
part of specific children under the age of three, as described in Sec.  
303.303(b).

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

Sec.  303.207  Availability of resources.

    Each application must include a description of the procedure used by 
the State to ensure that resources are made available under this part 
for all geographic areas within the State.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(a)(7))

Sec.  303.208  Public participation policies and procedures.

    (a) Application. At least 60 days prior to being submitted to the 
Department, each application for funds under this part (including any 
policies, procedures, descriptions, methods, certifications, assurances 
and other information required in the application) must be published in 
a manner that will ensure circulation throughout the State for at least 
a 60-day period, with an opportunity for public comment on the 
application for at least 30 days during that period.
    (b) State Policies and Procedures. Each application must include a 
description of the policies and procedures used by the State to ensure 
that, before adopting any new policy or procedure (including any 
revision to an existing policy or procedure) needed to comply with part 
C of the Act and these regulations, the lead agency--
    (1) Holds public hearings on the new policy or procedure (including 
any revision to an existing policy or procedure);
    (2) Provides notice of the hearings held in accordance with 
paragraph (b)(1) of this section at least 30 days before the hearings 
are conducted to enable public participation; and
    (3) Provides an opportunity for the general public, including 
individuals with disabilities, parents of infants and toddlers with 
disabilities, EIS providers, and the members of the Council, to comment 
for at least 30 days on the new policy or procedure (including any 
revision to an existing policy or procedure) needed to comply with part 
C of the Act and these regulations.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1231d, 1221e-3, 1437(a)(8))

Sec.  303.209  Transition to preschool and other programs.

    (a) Application requirements. Each State must include the following 
in its application:
    (1) A description of the policies and procedures it will use to 
ensure a smooth transition for infants and toddlers with disabilities 
under the age of three and their families from receiving early 
intervention services under this part to--
    (i) Preschool or other appropriate services (for toddlers with 
disabilities); or
    (ii) Exiting the program for infants and toddlers with disabilities.
    (2) A description of how the State will meet each of the 
requirements in paragraphs (b) through (f) of this section.
    (3)(i)(A) If the lead agency is not the SEA, an interagency 
agreement between the lead agency and the SEA; or
    (B) If the lead agency is the SEA, an intra-agency agreement between 
the program within that agency that administers part C of the Act and 
the program within the agency that administers section 619 of the Act.
    (ii) To ensure a seamless transition between services under this 
part and under part B of the Act, an interagency agreement under 
paragraph (a)(3)(i)(A) of this section or an intra-agency agreement 
under paragraph (a)(3)(i)(B) of this section must address how the lead 
agency and the SEA will meet the

[[Page 195]]

requirements of paragraphs (b) through (f) of this section (including 
any policies adopted by the lead agency under Sec.  303.401(d) and (e)), 
Sec.  303.344(h), and 34 CFR 300.101(b), 300.124, 300.321(f), and 
300.323(b).
    (4) Any policy the lead agency has adopted under Sec.  303.401(d) 
and (e).
    (b) Notification to the SEA and appropriate LEA. (1) The State lead 
agency must ensure that--
    (i) Subject to paragraph (b)(2) of this section, not fewer than 90 
days before the third birthday of the toddler with a disability if that 
toddler may be eligible for preschool services under part B of the Act, 
the lead agency notifies the SEA and the LEA for the area in which the 
toddler resides that the toddler on his or her third birthday will reach 
the age of eligibility for services under part B of the Act, as 
determined in accordance with State law;
    (ii) Subject to paragraph (b)(2) of this section, if the lead agency 
determines that the toddler is eligible for early intervention services 
under part C of the Act more than 45 but less than 90 days before that 
toddler's third birthday and if that toddler may be eligible for 
preschool services under part B of the Act, the lead agency, as soon as 
possible after determining the child's eligibility, notifies the SEA and 
the LEA for the area in which the toddler with a disability resides that 
the toddler on his or her third birthday will reach the age of 
eligibility for services under part B of the Act, as determined in 
accordance with State law; or
    (iii) Subject to paragraph (b)(2) of this section, if a toddler is 
referred to the lead agency fewer than 45 days before that toddler's 
third birthday and that toddler may be eligible for preschool services 
under part B of the Act, the lead agency, with parental consent required 
under Sec.  303.414, refers the toddler to the SEA and the LEA for the 
area in which the toddler resides; but, the lead agency is not required 
to conduct an evaluation, assessment, or an initial IFSP meeting under 
these circumstances.
    (2) The State must ensure that the notification required under 
paragraphs (b)(1)(i) and (b)(1)(ii) of this section is consistent with 
any policy that the State has adopted, under Sec.  303.401(e), 
permitting a parent to object to disclosure of personally identifiable 
information.
    (c) Conference to discuss services. The State lead agency must 
ensure that--
    (1) If a toddler with a disability may be eligible for preschool 
services under part B of the Act, the lead agency, with the approval of 
the family of the toddler, convenes a conference, among the lead agency, 
the family, and the LEA not fewer than 90 days--and, at the discretion 
of all parties, not more than 9 months--before the toddler's third 
birthday to discuss any services the toddler may receive under part B of 
the Act; and.
    (2) If the lead agency determines that a toddler with a disability 
is not potentially eligible for preschool services under part B of the 
Act, the lead agency, with the approval of the family of that toddler, 
makes reasonable efforts to convene a conference among the lead agency, 
the family, and providers of other appropriate services for the toddler 
to discuss appropriate services that the toddler may receive.
    (d) Transition plan. The State lead agency must ensure that for all 
toddlers with disabilities--
    (1)(i) It reviews the program options for the toddler with a 
disability for the period from the toddler's third birthday through the 
remainder of the school year; and
    (ii) Each family of a toddler with a disability who is served under 
this part is included in the development of the transition plan required 
under this section and Sec.  303.344(h);
    (2) It establishes a transition plan in the IFSP not fewer than 90 
days--and, at the discretion of all parties, not more than 9 months--
before the toddler's third birthday; and
    (3) The transition plan in the IFSP includes, consistent with Sec.  
303.344(h), as appropriate--
    (i) Steps for the toddler with a disability and his or her family to 
exit from the part C program; and
    (ii) Any transition services that the IFSP Team identifies as needed 
by that toddler and his or her family.
    (e) Transition conference and meeting to develop transition plan. 
Any conference conducted under paragraph (c) of this section or meeting 
to develop

[[Page 196]]

the transition plan under paragraph (d) of this section (which 
conference and meeting may be combined into one meeting) must meet the 
requirements in Sec. Sec.  303.342(d) and (e) and 303.343(a).
    (f) Applicability of transition requirements. (1) The transition 
requirements in paragraphs (b)(1)(i) and (b)(1)(ii), (c)(1), and (d) of 
this section apply to all toddlers with disabilities receiving services 
under this part before those toddlers turn age three, including any 
toddler with a disability under the age of three who is served by a 
State that offers services under Sec.  303.211.
    (2) In a State that offers services under Sec.  303.211, for 
toddlers with disabilities identified in Sec.  303.209(b)(1)(i), the 
parent must be provided at the transition conference conducted under 
paragraph (c)(1) of this section:
    (i) An explanation, consistent with Sec.  303.211(b)(1)(ii), of the 
toddler's options to continue to receive early intervention services 
under this part or preschool services under section 619 of the Act.
    (ii) The initial annual notice referenced in Sec.  303.211(b)(1).
    (3) For children with disabilities age three and older who receive 
services pursuant to Sec.  303.211, the State must ensure that it 
satisfies the separate transition requirements in Sec.  
303.211(b)(6)(ii).

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1412(a)(3) and (a)(9), 1436(a)(3), 1437(a)(9))

Sec.  303.210  Coordination with Head Start and Early Head Start, early 
          education, and child care programs.

    (a) Each application must contain a description of State efforts to 
promote collaboration among Head Start and Early Head Start programs 
under the Head Start Act (42 U.S.C. 9801, et seq., as amended), early 
education and child care programs, and services under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

    (b) The State lead agency must participate, consistent with section 
642B(b)(1)(C)(viii) of the Head Start Act, on the State Advisory Council 
on Early Childhood Education and Care established under the Head Start 
Act.

(Authority: 20 U.S.C. 1437(a)(10))

Sec.  303.211  State option to make services under this part available 
          to children ages three and older.

    (a) General. (1) Subject to paragraphs (a)(2) and (b) of this 
section, a State may elect to include in its application for a grant 
under this part a State policy, developed and implemented jointly by the 
lead agency and the SEA, under which a parent of a child with a 
disability who is eligible for preschool services under section 619 of 
the Act and who previously received early intervention services under 
this part, may choose the continuation of early intervention services 
under this part for his or her child after the child turns three until 
the child enters, or is eligible under State law to enter, kindergarten 
or elementary school.
    (2) A State that adopts the policy described in paragraph (a)(1) of 
this section may determine whether it applies to children with 
disabilities--
    (i) From age three until the beginning of the school year following 
the child's third birthday;
    (ii) From age three until the beginning of the school year following 
the child's fourth birthday; or
    (iii) From age three until the beginning of the school year 
following the child's fifth birthday.
    (3) In no case may a State provide services under this section 
beyond the age at which the child actually enters, or is eligible under 
State law to enter, kindergarten or elementary school in the State.
    (b) Requirements. If a State's application for a grant under this 
part includes the State policy described in paragraph (a) of this 
section, the system must ensure the following:
    (1) Parents of children with disabilities who are eligible for 
services under section 619 of the Act and who previously received early 
intervention services under this part will be provided an annual notice 
that contains--
    (i) A description of the rights of the parents to elect to receive 
services pursuant to this section or under part B of the Act; and

[[Page 197]]

    (ii) An explanation of the differences between services provided 
pursuant to this section and services provided under part B of the Act, 
including--
    (A) The types of services and the locations at which the services 
are provided;
    (B) The procedural safeguards that apply; and
    (C) Possible costs (including the costs or fees to be charged to 
families as described in Sec. Sec.  303.520 and 303.521), if any, to 
parents of children eligible under this part.
    (2) Consistent with Sec.  303.344(d), services provided pursuant to 
this section will include an educational component that promotes school 
readiness and incorporates preliteracy, language, and numeracy skills.
    (3) The State policy ensures that any child served pursuant to this 
section has the right, at any time, to receive FAPE (as that term is 
defined at Sec.  303.15) under part B of the Act instead of early 
intervention services under part C of the Act.
    (4) The lead agency must continue to provide all early intervention 
services identified in the toddler with a disability's IFSP under Sec.  
303.344 (and consented to by the parent under Sec.  303.342(e)) beyond 
age three until that toddler's initial eligibility determination under 
part B of the Act is made under 34 CFR 300.306. This provision does not 
apply if the LEA has requested parental consent for the initial 
evaluation under 34 CFR 300.300(a) and the parent has not provided that 
consent.
    (5) The lead agency must obtain informed consent from the parent of 
any child with a disability for the continuation of early intervention 
services pursuant to this section for that child. Consent must be 
obtained before the child reaches three years of age, where practicable.
    (6)(i) For toddlers with disabilities under the age of three in a 
State that offers services under this section, the lead agency ensures 
that the transition requirements in Sec.  303.209(b)(1)(i) and 
(b)(1)(ii), (c)(1), and (d) are met.
    (ii) For toddlers with disabilities age three and older in a State 
that offers services under this section, the lead agency ensures a 
smooth transition from services under this section to preschool, 
kindergarten or elementary school by--
    (A) Providing the SEA and LEA where the child resides, consistent 
with any State policy adopted under Sec.  303.401(e), the information 
listed in Sec.  303.401(d)(1) not fewer than 90 days before the child 
will no longer be eligible under paragraph (a)(2) of this section to 
receive, or will no longer receive, early intervention services under 
this section;
    (B) With the approval of the parents of the child, convening a 
transition conference, among the lead agency, the parents, and the LEA, 
not fewer than 90 days--and, at the discretion of all parties, not more 
than 9 months--before the child will no longer be eligible under 
paragraph (a)(2) of this section to receive, or no longer receives, 
early intervention services under this section, to discuss any services 
that the child may receive under part B of the Act; and
    (C) Establishing a transition plan in the IFSP not fewer than 90 
days--and, at the discretion of all parties, not more than 9 months--
before the child will no longer be eligible under paragraph (a)(2) of 
this section to receive, or no longer receives, early intervention 
services under this section.
    (7) In States that adopt the option to make services under this part 
available to children ages three and older pursuant to this section, 
there will be a referral to the part C system, dependent upon parental 
consent, of a child under the age of three who directly experiences a 
substantiated case of trauma due to exposure to family violence, as 
defined in section 320 of the Family Violence Prevention and Services 
Act, 42 U.S.C. 10401, et seq.
    (c) Reporting requirement. If a State includes in its application a 
State policy described in paragraph (a) of this section, the State must 
submit to the Secretary, in the State's report under Sec.  303.124, the 
number and percentage of children with disabilities who are eligible for 
services under section 619 of the Act but whose parents choose for their 
children to continue to receive early intervention services under this 
part.

[[Page 198]]

    (d) Available funds. The State policy described in paragraph (a) of 
this section must describe the funds--including an identification as 
Federal, State, or local funds--that will be used to ensure that the 
option described in paragraph (a) of this section is available to 
eligible children and families who provide the consent described in 
paragraph (b)(5) of this section, including fees, if any, to be charged 
to families as described in Sec. Sec.  303.520 and 303.521.
    (e) Rules of construction. (1) If a statewide system includes a 
State policy described in paragraph (a) of this section, a State that 
provides services in accordance with this section to a child with a 
disability who is eligible for services under section 619 of the Act 
will not be required to provide the child FAPE under part B of the Act 
for the period of time in which the child is receiving services under 
this part.
    (2) Nothing in this section may be construed to require a provider 
of services under this part to provide a child served under this part 
with FAPE.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1435(c), 1437(a)(11))

Sec.  303.212  Additional information and assurances.

    Each application must contain--
    (a) A description of the steps the State is taking to ensure 
equitable access to, and equitable participation in, the part C 
statewide system as required by section 427(b) of GEPA; and
    (b) Other information and assurances as the Secretary may reasonably 
require.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1228a(b), 1437(a)(11))

                               Assurances

Sec.  303.220  Assurances satisfactory to the Secretary.

    Each application must contain assurances satisfactory to the 
Secretary that the State has met the requirements in Sec. Sec.  303.221 
through 303.227.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b))

Sec.  303.221  Expenditure of funds.

    The State must ensure that Federal funds made available to the State 
under section 643 of the Act will be expended in accordance with the 
provisions of this part, including Sec. Sec.  303.500 and 303.501.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(1))

Sec.  303.222  Payor of last resort.

    The State must ensure that it will comply with the requirements in 
Sec. Sec.  303.510 and 303.511 in subpart F of this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(2))

Sec.  303.223  Control of funds and property.

    The State must ensure 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 Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(3))

Sec.  303.224  Reports and records.

    The State must ensure that it will--
    (a) Make reports in the form and containing the information that the 
Secretary may require; and
    (b) Keep records and afford access to those records as the Secretary 
may find necessary to ensure 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 Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(4))

Sec.  303.225  Prohibition against supplanting; indirect costs.

    (a) Each application must provide satisfactory assurance that the 
Federal funds made available under section 643 of the Act to the State:

[[Page 199]]

    (1) Will not be commingled with State funds; and
    (2) Will be used so as to supplement the level of State and local 
funds expended for infants and toddlers with disabilities 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) A decrease in the number of infants and toddlers 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.
    (c) Requirement regarding indirect costs. (1) Except as provided in 
paragraph (c)(2) of this section, a lead agency under this part may not 
charge indirect costs to its part C grant.
    (2) If approved by the lead agency's cognizant Federal agency or by 
the Secretary, the lead agency must charge indirect costs through 
either--
    (i) A restricted indirect cost rate that meets the requirements in 
34 CFR 76.560 through 76.569; or
    (ii) A cost allocation plan that meets the non-supplanting 
requirements in paragraph (b) of this section and 34 CFR part 76 of 
EDGAR.
    (3) In charging indirect costs under paragraph (c)(2)(i) and 
(c)(2)(ii) of this section, the lead agency may not charge rent, 
occupancy, or space maintenance costs directly to the part C grant, 
unless those costs are specifically approved in advance by the 
Secretary.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(5))

Sec.  303.226  Fiscal control.

    The State must ensure that fiscal control and fund accounting 
procedures will be adopted as necessary to ensure proper disbursement 
of, and accounting for, Federal funds paid under this part.

(Approved by Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1437(b)(6))

Sec.  303.227  Traditionally underserved groups.

    The State must ensure that policies and practices have been adopted 
to ensure--
    (a) That traditionally underserved groups, including minority, low-
income, homeless, and rural families and children with disabilities who 
are wards of the State, 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 Office of Management and Budget under control number 1820-
0550)

(Authority: 20 U.S.C. 1231d, 1437(b)(7))

 Subsequent Applications and Modifications, Eligibility Determinations, 
                       and Standard of Disapproval

Sec.  303.228  Subsequent State application and modifications of 
          application.

    (a) Subsequent State application. If a State has on file with the 
Secretary a policy, procedure, method, or assurance that demonstrates 
that the State meets an application requirement in this part, including 
any policy, procedure, method, or assurance filed under this part (as in 
effect before the date of enactment of the Act, December 3, 2004), the 
Secretary considers the State to have met that requirement for purposes 
of receiving a grant under this part.
    (b) Modification of application. An application submitted by a State 
that meets the requirements of this part remains in effect until the 
State submits to the Secretary such modifications as the State 
determines necessary. This section applies to a modification of an 
application to the same extent and in

[[Page 200]]

the same manner as this paragraph applies to the original application.
    (c) Modifications required by the Secretary. 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 Federal regulation 
issued under the Act;
    (2) A new interpretation of the Act is made 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. 1437(d)-(f))

Sec.  303.229  Determination by the Secretary that a State is eligible.

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

(Authority: 20 U.S.C. 1437)

Sec.  303.230  Standard for disapproval of an application.

    The Secretary does not disapprove an application under this part 
unless the Secretary determines, after notice and opportunity for a 
hearing in accordance with the procedures in Sec. Sec.  303.231 through 
303.236, that the application fails to comply with the requirements of 
this part.

(Authority: 20 U.S.C. 1437(c))

                          Department Procedures

Sec.  303.231  Notice and hearing before determining that a State is not 
          eligible.

    (a) General. (1) The Secretary does not make a final determination 
that a State is not eligible to receive a grant under part C of the Act 
until providing the State--
    (i) Reasonable notice; and
    (ii) An opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the 
Secretary sends a written notice to the lead agency by certified mail 
with a 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 lead agency that it may request a hearing and that 
the request for a hearing must be made not later than 30 days after it 
receives the notice of the proposed final determination that the State 
is not eligible; and
    (4) Provides the lead agency with information about the hearing 
procedures that will be followed.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.232  Hearing Official or Panel.

    (a) If the lead 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.
    (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. 1437(c))

Sec.  303.233  Hearing procedures.

    (a) As used in Sec. Sec.  303.231 through 303.235, the term party or 
parties means any of the following:
    (1) A lead agency 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.

[[Page 201]]

    (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 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 an 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 an estimation of time for each 
presentation; and
    (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 (c)(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 the parties to 
state their positions and to provide all or part of their evidence in 
writing.
    (e) The Hearing Official or Hearing Panel may require the parties to 
present testimony through affidavits and to conduct cross-examination 
through interrogatories.
    (f) The Hearing Official or Hearing Panel may direct the parties to 
exchange relevant documents, information, and lists of witnesses, and to 
send copies to the Hearing Official or Hearing 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 must 
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.

[[Page 202]]

    (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. 1437(c))

Sec.  303.234  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 lead agency under Sec.  303.231, including any 
amendments to or further clarification of the issues under Sec.  
303.233(c).
    (b) The initial decision of a Hearing Panel is made by a majority of 
Hearing 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 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, 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.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.235  Filing requirements.

    (a) Any written submission by a party under Sec. Sec.  303.230 
through 303.236 must be filed with the Secretary by hand-delivery, by 
mail, or by facsimile

[[Page 203]]

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

(Authority: 20 U.S.C. 1437(c))

Sec.  303.236  Judicial review.

    If a State is dissatisfied with the Secretary's final decision with 
respect to the eligibility of the State under part C 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 action was based, as provided in 28 U.S.C. 2112.

(Authority: 20 U.S.C. 1437(c))

 Subpart D_Child Find, Evaluations and Assessments, and Individualized 
                          Family Service Plans

Sec.  303.300  General.

    The statewide comprehensive, coordinated, multidisciplinary 
interagency system to provide early intervention services for infants 
and toddlers with disabilities and their families referenced in Sec.  
303.100 must include the following components:
    (a) Pre-referral policies and procedures that include--
    (1) A public awareness program as described in Sec.  303.301; and
    (2) A comprehensive child find system as described in Sec.  303.302.
    (b) Referral policies and procedures as described in Sec.  303.303.
    (c) Post-referral policies and procedures that ensure compliance 
with the timeline requirements in Sec.  303.310 and include--
    (1) Screening, if applicable, as described in Sec.  303.320;
    (2) Evaluations and assessments as described in Sec. Sec.  303.321 
and 303.322; and
    (3) Development, review, and implementation of IFSPs as described in 
Sec. Sec.  303.340 through 303.346.

 Pre-Referral Procedures--Public Awareness Program and Child Find System

Sec.  303.301  Public awareness program--information for parents.

    (a) Preparation and dissemination. In accordance with Sec.  303.116, 
each system must include a public awareness program that requires the 
lead agency to--
    (1)(i) Prepare information on the availability of early intervention 
services under this part, and other services, as described in paragraph 
(b) of this section; and
    (ii) Disseminate to all primary referral sources (especially 
hospitals and physicians) the information to be given to parents of 
infants and toddlers, especially parents with premature infants or 
infants with other physical risk factors associated with learning or 
developmental complications; and
    (2) Adopt procedures for assisting the primary referral sources 
described in Sec.  303.303(c) in disseminating the information described 
in paragraph (b) of this section to parents of infants and toddlers with 
disabilities.
    (b) Information to be provided. The information required to be 
prepared and disseminated under paragraph (a) of this section must 
include--
    (1) A description of the availability of early intervention services 
under this part;
    (2) A description of the child find system and how to refer a child 
under the

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age of three for an evaluation or early intervention services; and
    (3) A central directory, as described in Sec.  303.117.
    (c) Information specific to toddlers with disabilities. Each public 
awareness program also must include a requirement that the lead agency 
provide for informing parents of toddlers with disabilities of the 
availability of services under section 619 of the Act not fewer than 90 
days prior to the toddler's third birthday.

(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))

Sec.  303.302  Comprehensive child find system.

    (a) General. Each system must include a comprehensive child find 
system that--
    (1) Is consistent with part B of the Act (see 34 CFR 300.111);
    (2) Includes a system for making referrals to lead agencies or EIS 
providers under this part that--
    (i) Includes timelines; and
    (ii) Provides for participation by the primary referral sources 
described in Sec.  303.303(c);
    (3) Ensures rigorous standards for appropriately identifying infants 
and toddlers with disabilities for early intervention services under 
this part that will reduce the need for future services; and
    (4) Meets the requirements in paragraphs (b) and (c) of this section 
and Sec. Sec.  303.303, 303.310, 303.320, and 303.321.
    (b) Scope of child find. The lead agency, as part of the child find 
system, must ensure that--
    (1) All infants and toddlers with disabilities in the State who are 
eligible for early intervention services under this part are identified, 
located, and evaluated, including--
    (i) Indian infants and toddlers with disabilities residing on a 
reservation geographically located in the State (including coordination, 
as necessary, with tribes, tribal organizations, and consortia to 
identify infants and toddlers with disabilities in the State based, in 
part, on the information provided by them to the lead agency under Sec.  
303.731(e)(1)); and
    (ii) Infants and toddlers with disabilities who are homeless, in 
foster care, and wards of the State; and
    (iii) Infants and toddlers with disabilities that are referenced in 
Sec.  303.303(b); and
    (2) An effective method is developed and implemented to identify 
children who are in need of early intervention services.
    (c) Coordination. (1) The lead agency, with the assistance of the 
Council, as defined in Sec.  303.8, must ensure that the child find 
system under this part--
    (i) Is coordinated with all other major efforts to locate and 
identify children by other State agencies responsible for administering 
the various education, health, and social service programs relevant to 
this part, including Indian tribes that receive payments under this 
part, and other Indian tribes, as appropriate; and
    (ii) Is coordinated with the efforts of the--
    (A) Program authorized under part B of the Act;
    (B) Maternal and Child Health program, including the Maternal, 
Infant, and Early Childhood Home Visiting Program, under Title V of the 
Social Security Act, as amended, (MCHB or Title V) (42 U.S.C. 701(a));
    (C) Early Periodic Screening, Diagnosis, and Treatment (EPSDT) under 
Title XIX of the Social Security Act (42 U.S.C. 1396(a)(43) and 
1396(a)(4)(B));
    (D) Programs under the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
    (E) Head Start Act (including Early Head Start programs under 
section 645A of the Head Start Act) (42 U.S.C. 9801 et seq.);
    (F) Supplemental Security Income program under Title XVI of the 
Social Security Act (42 U.S.C. 1381);
    (G) Child protection and child welfare programs, including programs 
administered by, and services provided through, the foster care agency 
and the State agency responsible for administering the Child Abuse 
Prevention and Treatment Act (CAPTA) (42 U.S.C. 5106(a));
    (H) Child care programs in the State;
    (I) The programs that provide services under the Family Violence 
Prevention and Services Act (42 U.S.C. 10401 et seq.);

[[Page 205]]

    (J) Early Hearing Detection and Intervention (EHDI) systems (42 
U.S.C. 280g-1) administered by the Centers for Disease Control (CDC); 
and
    (K) Children's Health Insurance Program (CHIP) authorized under 
Title XXI of the Social Security Act (42 U.S.C. 1397aa et seq.).
    (2) The lead agency, with the advice and assistance of the Council, 
must take steps to ensure that--
    (i) There will not be unnecessary duplication of effort by the 
programs identified in paragraph (c)(1)(ii) of this section; and
    (ii) The State will make use of the resources available through each 
public agency and EIS provider in the State to implement the child find 
system in an effective manner.

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

                           Referral Procedures

Sec.  303.303  Referral procedures.

    (a) General. (1) The lead agency's child find system described in 
Sec.  303.302 must include the State's procedures for use by primary 
referral sources for referring a child under the age of three to the 
part C program.
    (2) The procedures required in paragraph (a)(1) of this section 
must--
    (i) Provide for referring a child as soon as possible, but in no 
case more than seven days, after the child has been identified; and
    (ii) Meet the requirements in paragraphs (b) and (c) of this 
section.
    (b) Referral of specific at-risk infants and toddlers. The 
procedures required in paragraph (a) of this section must provide for 
requiring the referral of a child under the age of three who--
    (1) Is the subject of a substantiated case of child abuse or 
neglect; or
    (2) Is identified as directly affected by illegal substance abuse or 
withdrawal symptoms resulting from prenatal drug exposure.
    (c) Primary referral sources. As used in this subpart, primary 
referral sources include--
    (1) Hospitals, including prenatal and postnatal care facilities;
    (2) Physicians;
    (3) Parents, including parents of infants and toddlers;
    (4) Child care programs and early learning programs;
    (5) LEAs and schools;
    (6) Public health facilities;
    (7) Other public health or social service agencies;
    (8) Other clinics and health care providers;
    (9) Public agencies and staff in the child welfare system, including 
child protective service and foster care;
    (10) Homeless family shelters; and
    (11) Domestic violence shelters and agencies.

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(a)(6), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

Sec. Sec.  303.304-303.309  [Reserved]

   Post-Referral Procedures--Screenings, Evaluations, and Assessments

Sec.  303.310  Post-referral timeline (45 days).

    (a) Except as provided in paragraph (b) of this section, any 
screening under Sec.  303.320 (if the State has adopted a policy and 
elects, and the parent consents, to conduct a screening of a child); the 
initial evaluation and the initial assessments of the child and family 
under Sec.  303.321; and the initial IFSP meeting under Sec.  303.342 
must be completed within 45 days from the date the lead agency or EIS 
provider receives the referral of the child.
    (b) Subject to paragraph (c) of this section, the 45-day timeline 
described in paragraph (a) of this section does not apply for any period 
when--
    (1) The child or parent is unavailable to complete the screening (if 
applicable), the initial evaluation, the initial assessments of the 
child and family, or the initial IFSP meeting due to exceptional family 
circumstances that are documented in the child's early intervention 
records; or
    (2) The parent has not provided consent for the screening (if 
applicable), the initial evaluation, or the initial assessment of the 
child, despite documented, repeated attempts by the lead agency or EIS 
provider to obtain parental consent.

[[Page 206]]

    (c) The lead agency must develop procedures to ensure that in the 
event the circumstances described in (b)(1) or (b)(2) of this section 
exist, the lead agency or EIS provider must--
    (1) Document in the child's early intervention records the 
exceptional family circumstances or repeated attempts by the lead agency 
or EIS provider to obtain parental consent;
    (2) Complete the screening (if applicable), the initial evaluation, 
the initial assessments (of the child and family), and the initial IFSP 
meeting as soon as possible after the documented exceptional family 
circumstances described in paragraph (b)(1) of this section no longer 
exist or parental consent is obtained for the screening (if applicable), 
the initial evaluation, and the initial assessment of the child; and
    (3) Develop and implement an interim IFSP, to the extent appropriate 
and consistent with Sec.  303.345.
    (d) The initial family assessment must be conducted within the 45-
day timeline in paragraph (a) of this section if the parent concurs and 
even if other family members are unavailable.

(Authority: 20 U.S.C. 1433, 1435(a), 1436(c))

Sec. Sec.  303.311-303.319  [Reserved]

Sec.  303.320  Screening procedures (optional).

    (a) General. (1) The lead agency may adopt procedures, consistent 
with the requirements of this section, to screen children under the age 
of three who have been referred to the part C program to determine 
whether they are suspected of having a disability under this part. If 
the lead agency or EIS provider proposes to screen a child, it must--
    (i) Provide the parent notice under Sec.  303.421 of its intent to 
screen the child to identify whether the child is suspected of having a 
disability and include in that notice a description of the parent's 
right to request an evaluation under Sec.  303.321 at any time during 
the screening process; and
    (ii) Obtain parental consent as required in Sec.  303.420(a)(1) 
before conducting the screening procedures.
    (2) If the parent consents to the screening and the screening or 
other available information indicates that the child is--
    (i) Suspected of having a disability, after notice is provided under 
Sec.  303.421 and once parental consent is obtained as required in Sec.  
303.420, an evaluation and assessment of the child must be conducted 
under Sec.  303.321; or
    (ii) Not suspected of having a disability, the lead agency or EIS 
provider must ensure that notice of that determination is provided to 
the parent under Sec.  303.421, and that the notice describes the 
parent's right to request an evaluation.
    (3) If the parent of the child requests and consents to an 
evaluation at any time during the screening process, evaluation of the 
child must be conducted under Sec.  303.321, even if the lead agency or 
EIS provider has determined under paragraph (a)(2)(ii) of this section 
that the child is not suspected of having a disability.
    (b) Definition of screening procedures. Screening procedures--
    (1) Means activities under paragraphs (a)(1) and (a)(2) of this 
section that are carried out by, or under the supervision of, the lead 
agency or EIS provider to identify, at the earliest possible age, 
infants and toddlers suspected of having a disability and in need of 
early intervention services; and
    (2) Includes the administration of appropriate instruments by 
personnel trained to administer those instruments.
    (c) Condition for evaluation or early intervention services. For 
every child under the age of three who is referred to the part C program 
or screened in accordance with paragraph (a) of this section, the lead 
agency is not required to--
    (1) Provide an evaluation of the child under Sec.  303.321 unless 
the child is suspected of having a disability or the parent requests an 
evaluation under paragraph (a)(3) of this section; or
    (2) Make early intervention services available under this part to 
the child unless a determination is made that the child meets the 
definition of infant or toddler with a disability under Sec.  303.21.

(Authority: 20 U.S.C. 1432(4)(E)(ix), 1434(1), 1435(a)(2), 1435(a)(5) 
and (a)(6), 1435(c)(2)(G), 1437(a)(6), 1439(a)(6))

[[Page 207]]

Sec.  303.321  Evaluation of the child and assessment of the child and 
          family.

    (a) General. (1) The lead agency must ensure that, subject to 
obtaining parental consent in accordance with Sec.  303.420(a)(2), each 
child under the age of three who is referred for evaluation or early 
intervention services under this part and suspected of having a 
disability, receives--
    (i) A timely, comprehensive, multidisciplinary evaluation of the 
child in accordance with paragraph (b) of this section unless 
eligibility is established under paragraph (a)(3)(i) of this section; 
and
    (ii) If the child is determined eligible as an infant or toddler 
with a disability as defined in Sec.  303.21--
    (A) A multidisciplinary assessment of the unique strengths and needs 
of that infant or toddler and the identification of services appropriate 
to meet those needs;
    (B) A family-directed assessment of 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 that infant or toddler. The assessments of the 
child and family are described in paragraph (c) of this section and 
these assessments may occur simultaneously with the evaluation, provided 
that the requirements of paragraph (b) of this section are met.
    (2) As used in this part--
    (i) Evaluation means the procedures used by qualified personnel to 
determine a child's initial and continuing eligibility under this part, 
consistent with the definition of infant or toddler with a disability in 
Sec.  303.21. An initial evaluation refers to the child's evaluation to 
determine his or her initial eligibility under this part;
    (ii) Assessment means the ongoing procedures used by qualified 
personnel to identify the child's unique strengths and needs and the 
early intervention services appropriate to meet those needs throughout 
the period of the child's eligibility under this part and includes the 
assessment of the child, consistent with paragraph (c)(1) of this 
section and the assessment of the child's family, consistent with 
paragraph (c)(2) of this section; and
    (iii) Initial assessment refers to the assessment of the child and 
the family assessment conducted prior to the child's first IFSP meeting.
    (3)(i) A child's medical and other records may be used to establish 
eligibility (without conducting an evaluation of the child) under this 
part if those records indicate that the child's level of functioning in 
one or more of the developmental areas identified in Sec.  303.21(a)(1) 
constitutes a developmental delay or that the child otherwise meets the 
criteria for an infant or toddler with a disability under Sec.  303.21. 
If the child's part C eligibility is established under this paragraph, 
the lead agency or EIS provider must conduct assessments of the child 
and family in accordance with paragraph (c) of this section.
    (ii) Qualified personnel must use informed clinical opinion when 
conducting an evaluation and assessment of the child. In addition, the 
lead agency must ensure that informed clinical opinion may be used as an 
independent basis to establish a child's eligibility under this part 
even when other instruments do not establish eligibility; however, in no 
event may informed clinical opinion be used to negate the results of 
evaluation instruments used to establish eligibility under paragraph (b) 
of this section.
    (4) All evaluations and assessments of the child and family must be 
conducted by qualified personnel, in a nondiscriminatory manner, and 
selected and administered so as not to be racially or culturally 
discriminatory.
    (5) Unless clearly not feasible to do so, all evaluations and 
assessments of a child must be conducted in the native language of the 
child, in accordance with the definition of native language in Sec.  
303.25.
    (6) Unless clearly not feasible to do so, family assessments must be 
conducted in the native language of the family members being assessed, 
in accordance with the definition of native language in Sec.  303.25.
    (b) Procedures for evaluation of the child. In conducting an 
evaluation, no single procedure may be used as the sole criterion for 
determining a child's eligibility under this part. Procedures must 
include--

[[Page 208]]

    (1) Administering an evaluation instrument;
    (2) Taking the child's history (including interviewing the parent);
    (3) Identifying the child's level of functioning in each of the 
developmental areas in Sec.  303.21(a)(1);
    (4) Gathering information from other sources such as family members, 
other care-givers, medical providers, social workers, and educators, if 
necessary, to understand the full scope of the child's unique strengths 
and needs; and
    (5) Reviewing medical, educational, or other records.
    (c) Procedures for assessment of the child and family. (1) An 
assessment of each infant or toddler with a disability must be conducted 
by qualified personnel in order to identify the child's unique strengths 
and needs and the early intervention services appropriate to meet those 
needs. The assessment of the child must include the following--
    (i) A review of the results of the evaluation conducted under 
paragraph (b) of this section;
    (ii) Personal observations of the child; and
    (iii) The identification of the child's needs in each of the 
developmental areas in Sec.  303.21(a)(1).
    (2) A family-directed assessment must be conducted by qualified 
personnel in order to identify the family's resources, priorities, and 
concerns and the supports and services necessary to enhance the family's 
capacity to meet the developmental needs of the family's infant or 
toddler with a disability. The family-directed assessment must--
    (i) Be voluntary on the part of each family member participating in 
the assessment;
    (ii) Be based on information obtained through an assessment tool and 
also through an interview with those family members who elect to 
participate in the assessment; and
    (iii) Include the family's description of its resources, priorities, 
and concerns related to enhancing the child's development.

(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 1436(a)(1)-(2))

Sec.  303.322  Determination that a child is not eligible.

    If, based on the evaluation conducted under Sec.  303.321, the lead 
agency determines that a child is not eligible under this part, the lead 
agency must provide the parent with prior written notice required in 
Sec.  303.421, and include in the notice information about the parent's 
right to dispute the eligibility determination through dispute 
resolution mechanisms under Sec.  303.430, such as requesting a due 
process hearing or mediation or filing a State complaint.

(Authority: 20 U.S.C. 1439(a)(6))

                Individualized Family Service Plan (IFSP)

Sec.  303.340  Individualized family service plan--general.

    For each infant or toddler with a disability, the lead agency must 
ensure the development, review, and implementation of an individualized 
family service plan or IFSP developed by a multidisciplinary team, which 
includes the parent, that--
    (a) Is consistent with the definition of that term in Sec.  303.20; 
and
    (b) Meets the requirements in Sec. Sec.  303.342 through 303.346 of 
this subpart.

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.341  [Reserved]

Sec.  303.342  Procedures for IFSP development, review, and evaluation.

    (a) Meeting to develop initial IFSP--timelines. For a child referred 
to the part C program and determined to be eligible under this part as 
an infant or toddler with a disability, a meeting to develop the initial 
IFSP must be conducted within the 45-day time period described in Sec.  
303.310.
    (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 results or 
outcomes identified in the IFSP is being made; and

[[Page 209]]

    (ii) Whether modification or revision of the results, outcomes, or 
early intervention services identified in the IFSP is necessary.
    (2) The review may be carried out by a meeting or by another means 
that is acceptable to the parents and other participants.
    (c) Annual meeting to evaluate the IFSP. A meeting must be conducted 
on at least an annual basis to evaluate and revise, as appropriate, the 
IFSP for a child and the child's family. The results of any current 
evaluations and other information available from the assessments of the 
child and family conducted under Sec.  303.321 must be used in 
determining the early intervention services that 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 for the family; 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, as described in 
Sec.  303.7, must be obtained, as required in Sec.  303.420(a)(3), prior 
to the provision of early intervention services described in the IFSP. 
Each early intervention service must be provided as soon as possible 
after the parent provides consent for that service, as required in Sec.  
303.344(f)(1).

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.343  IFSP Team meeting and periodic review.

    (a) Initial and annual IFSP Team meeting. (1) Each initial meeting 
and each annual IFSP Team 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 designated by the public agency to be 
responsible for implementing the IFSP.
    (v) A person or persons directly involved in conducting the 
evaluations and assessments in Sec.  303.321.
    (vi) As appropriate, persons who will be providing early 
intervention services under this part 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 one of the following:
    (i) Participating in a telephone conference call.
    (ii) Having a knowledgeable authorized representative attend the 
meeting.
    (iii) Making pertinent records available at the meeting.
    (b) Periodic review. Each periodic review under Sec.  303.342(b) 
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.

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.344  Content of an IFSP.

    (a) Information about the child's status. The IFSP must include a 
statement of the infant or toddler with a disability's present levels of 
physical development (including vision, hearing, and health status), 
cognitive development, communication development, social or emotional 
development, and adaptive development based on the information from that 
child's evaluation and assessments conducted under Sec.  303.321.
    (b) Family information. With the concurrence of the family, the IFSP 
must include a statement of the family's resources, priorities, and 
concerns related to enhancing the development of the child as identified 
through the assessment of the family under Sec.  303.321(c)(2).
    (c) Results or outcomes. The IFSP must include a statement of the 
measurable results or measurable outcomes expected to be achieved for 
the child

[[Page 210]]

(including pre-literacy and language skills, as developmentally 
appropriate for the child) and family, and the criteria, procedures, and 
timelines used to determine--
    (1) The degree to which progress toward achieving the results or 
outcomes identified in the IFSP is being made; and
    (2) Whether modifications or revisions of the expected results or 
outcomes, or early intervention services identified in the IFSP are 
necessary.
    (d) Early intervention services. (1) The IFSP must include a 
statement of the specific early intervention services, based on peer-
reviewed research (to the extent practicable), that are necessary to 
meet the unique needs of the child and the family to achieve the results 
or outcomes identified in paragraph (c) of this section, including--
    (i) The length, duration, frequency, intensity, and method of 
delivering the early intervention services;
    (ii)(A) A statement that each early intervention service is provided 
in the natural environment for that child or service to the maximum 
extent appropriate, consistent with Sec. Sec.  303.13(a)(8), 303.26 and 
303.126, or, subject to paragraph (d)(1)(ii)(B) of this section, a 
justification as to why an early intervention service will not be 
provided in the natural environment.
    (B) The determination of the appropriate setting for providing early 
intervention services to an infant or toddler with a disability, 
including any justification for not providing a particular early 
intervention service in the natural environment for that infant or 
toddler with a disability and service, must be--
    (1) Made by the IFSP Team (which includes the parent and other team 
members);
    (2) Consistent with the provisions in Sec. Sec.  303.13(a)(8), 
303.26, and 303.126; and
    (3) Based on the child's outcomes that are identified by the IFSP 
Team in paragraph (c) of this section;
    (iii) The location of the early intervention 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, and whether the service is provided on an 
individual or group basis;
    (ii) Method means how a service is provided;
    (iii) Length means the length of time the service is provided during 
each session of that service (such as an hour or other specified time 
period); and
    (iv) Duration means projecting when a given service will no longer 
be provided (such as when the child is expected to achieve the results 
or outcomes in his or her IFSP).
    (3) As used in paragraph (d)(1)(iii) of this section, location means 
the actual place or places where a service will be provided.
    (4) For children who are at least three years of age, the IFSP must 
include an educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills.
    (e) Other services. To the extent appropriate, the IFSP also must--
    (1) Identify medical and other services that the child or family 
needs or is receiving through other sources, but that are neither 
required nor funded under this part; and
    (2) If those services are not currently being provided, include a 
description of the steps the service coordinator or family may take to 
assist the child and family in securing those other services.
    (f) Dates and duration of services. The IFSP must include--
    (1) The projected date for the initiation of each early intervention 
service in paragraph (d)(1) of this section, which date must be as soon 
as possible after the parent consents to the service, as required in 
Sec. Sec.  303.342(e) and 303.420(a)(3); and
    (2) The anticipated duration of each service.
    (g) Service coordinator. (1) The IFSP must include the name of the 
service coordinator from the profession most 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 implementing the early intervention services identified in a child's 
IFSP, including transition services,

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and coordination with other agencies and persons.
    (2) In meeting the requirements 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 and services to be taken to support the smooth transition of the 
child, in accordance with Sec. Sec.  303.209 and 303.211(b)(6), from 
part C services to--
    (i) Preschool services under part B of the Act, to the extent that 
those services are appropriate;
    (ii) Part C services under Sec.  303.211; or
    (iii) Other appropriate services.
    (2) The steps required in paragraph (h)(1) of this section must 
include--
    (i) Discussions with, and training of, parents, as appropriate, 
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;
    (iii) Confirmation that child find information about the child has 
been transmitted to the LEA or other relevant agency, in accordance with 
Sec.  303.209(b) (and any policy adopted by the State under Sec.  
303.401(e)) and, with parental consent if required under Sec.  303.414, 
transmission of additional information needed by the LEA to ensure 
continuity of services from the part C program to the part B program, 
including a copy of the most recent evaluation and assessments of the 
child and the family and most recent IFSP developed in accordance with 
Sec. Sec.  303.340 through 303.345; and
    (iv) Identification of transition services and other activities that 
the IFSP Team determines are necessary to support the transition of the 
child.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(16), 1436(a)(3), 1436(d), 
1437(a)(9)-(10), 1440)

Sec.  303.345  Interim IFSPs--provision of services before evaluations 
          and assessments are completed.

    Early intervention services for an eligible child and the child's 
family may commence before the completion of the evaluation and 
assessments in Sec.  303.321, 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 implementing the interim IFSP and 
coordinating with other agencies and persons; and
    (2) The early intervention services that have been determined to be 
needed immediately by the child and the child's family.
    (c) Evaluations and assessments are completed within the 45-day 
timeline in Sec.  303.310.

(Authority: 20 U.S.C. 1436(c))

Sec.  303.346  Responsibility and accountability.

    Each public agency or EIS provider 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 public agency or EIS provider be held accountable if an 
eligible child does not achieve the growth projected in the child's 
IFSP.

(Authority: 20 U.S.C. 1436)

                     Subpart E_Procedural Safeguards

                                 General

Sec.  303.400  General responsibility of lead agency for procedural 
          safeguards.

    Subject to paragraph (c) of this section, each lead agency must--
    (a) Establish or adopt the procedural safeguards that meet the 
requirements of this subpart, including the provisions on 
confidentiality in Sec. Sec.  303.401 through 303.417, parental consent 
and notice in Sec. Sec.  303.420 and 303.421, surrogate parents in Sec.  
303.422, and dispute resolution procedures in Sec.  303.430;
    (b) Ensure the effective implementation of the safeguards by each 
participating agency (including the lead agency and EIS providers) in 
the statewide system that is involved in the provision of early 
intervention services under this part; and

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    (c) Make available to parents an initial copy of the child's early 
intervention record, at no cost to the parents.

(Authority: 20 U.S.C. 1439(a))

    Confidentiality of Personally Identifiable Information and Early 
                          Intervention Records

Sec.  303.401  Confidentiality and opportunity to examine records.

    (a) General. Each State must ensure that the parents of a child 
referred under this part are afforded the right to confidentiality of 
personally identifiable information, including the right to written 
notice of, and written consent to, the exchange of that information 
among agencies, consistent with Federal and State laws.
    (b) Confidentiality procedures. As required under sections 617(c) 
and 642 of the Act, the regulations in Sec. Sec.  303.401 through 
303.417 ensure the protection of the confidentiality of any personally 
identifiable data, information, and records collected or maintained 
pursuant to this part by the Secretary and by participating agencies, 
including the State lead agency and EIS providers, in accordance with 
the protections under the Family Educational Rights and Privacy Act 
(FERPA) in 20 U.S.C. 1232g and 34 CFR part 99. Each State must have 
procedures in effect to ensure that--
    (1) Participating agencies (including the lead agency and EIS 
providers) comply with the part C confidentiality procedures in 
Sec. Sec.  303.401 through 303.417; and
    (2) The parents of infants or toddlers who are referred to, or 
receive services under this part, are afforded the opportunity to 
inspect and review all part C early intervention records about the child 
and the child's family that are collected, maintained, or used under 
this part, including records related to evaluations and assessments, 
screening, eligibility determinations, development and implementation of 
IFSPs, provision of early intervention services, individual complaints 
involving the child, or any part of the child's early intervention 
record under this part.
    (c) Applicability and timeframe of procedures. The confidentiality 
procedures described in paragraph (b) of this section apply to the 
personally identifiable information of a child and the child's family 
that--
    (1) Is contained in early intervention records collected, used, or 
maintained under this part by the lead agency or an EIS provider; and
    (2) Applies from the point in time when the child is referred for 
early intervention services under this part until the later of when the 
participating agency is no longer required to maintain or no longer 
maintains that information under applicable Federal and State laws.
    (d) Disclosure of information. (1) Subject to paragraph (e) of this 
section, the lead agency must disclose to the SEA and the LEA where the 
child resides, in accordance with Sec.  303.209(b)(1)(i) and (b)(1)(ii), 
the following personally identifiable information under the Act:
    (i) A child's name.
    (ii) A child's date of birth.
    (iii) Parent contact information (including parents' names, 
addresses, and telephone numbers).
    (2) The information described in paragraph (d)(1) of this section is 
needed to enable the lead agency, as well as LEAs and SEAs under part B 
of the Act, to identify all children potentially eligible for services 
under Sec.  303.211 and part B of the Act.
    (e) Option to inform a parent about intended disclosure. (1) A lead 
agency, through its policies and procedures, may require EIS providers, 
prior to making the limited disclosure described in paragraph (d)(1) of 
this section, to inform parents of a toddler with a disability of the 
intended disclosure and allow the parents a specified time period to 
object to the disclosure in writing.
    (2) If a parent (in a State that has adopted the policy described in 
paragraph (e)(1) of this section) objects during the time period 
provided by the State, the lead agency and EIS provider are not 
permitted to make such a disclosure under paragraph (d) of this section 
and Sec.  303.209(b)(1)(i) and (b)(1)(ii).

(Authority: 20 U.S.C. 1412(a)(8), 1412(a)(9), 1417(c), 1435(a)(5), 
1437(a)(9), 1439(a)(2), 1439(a)(4), 1439(a)(6), 1442)

[[Page 213]]

Sec.  303.402  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, 
maintained, or used by the Secretary and by lead agencies and EIS 
providers pursuant to part C of the Act, and consistent with Sec. Sec.  
303.401 through 303.417. The regulations in Sec. Sec.  303.401 through 
303.417 ensure the protection of the confidentiality of any personally 
identifiable data, information, and records collected or maintained 
pursuant to this part by the Secretary and by participating agencies, 
including the State lead agency and EIS providers, in accordance with 
the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, 
and 34 CFR part 99.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.403  Definitions.

    The following definitions apply to Sec. Sec.  303.402 through 
303.417 in addition to the definition of personally identifiable 
information in Sec.  303.29 and disclosure in 34 CFR 99.3:
    (a) Destruction means physical destruction of the record or ensuring 
that personal identifiers are removed from a record so that the record 
is no longer personally identifiable under Sec.  303.29.
    (b) Early intervention records mean all records regarding a child 
that are required to be collected, maintained, or used under part C of 
the Act and the regulations in this part.
    (c) Participating agency means any individual, agency, entity, or 
institution that collects, maintains, or uses personally identifiable 
information to implement the requirements in part C of the Act and the 
regulations in this part with respect to a particular child. A 
participating agency includes the lead agency and EIS providers and any 
individual or entity that provides any part C services (including 
service coordination, evaluations and assessments, and other part C 
services), but does not include primary referral sources, or public 
agencies (such as the State Medicaid or CHIP program) or private 
entities (such as private insurance companies) that act solely as 
funding sources for part C services.

(Authority: 20 U.S.C. 1221e-3, 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.404  Notice to parents.

    The lead agency must give notice when a child is referred under part 
C of the Act that is adequate to fully inform parents about the 
requirements in Sec.  303.402, including--
    (a) 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;
    (b) 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;
    (c) A description of all the rights of parents and children 
regarding this information, including their rights under the part C 
confidentiality provisions in Sec. Sec.  303.401 through 303.417; and
    (d) A description of the extent that the notice is provided in the 
native languages of the various population groups in the State.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.405  Access rights.

    (a) Each participating agency must permit parents to inspect and 
review any early intervention records relating to their children that 
are collected, maintained, or used by the agency under this part. The 
agency must comply with a parent's request to inspect and review records 
without unnecessary delay and before any meeting regarding an IFSP, or 
any hearing pursuant to Sec. Sec.  303.430(d) and 303.435 through 
303.439, and in no case more than 10 days after the request has been 
made.
    (b) The right to inspect and review early intervention records under 
this section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the early 
intervention records;

[[Page 214]]

    (2) The right to request that the participating agency provide 
copies of the early intervention 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 early intervention 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 provided documentation that the parent does not have the authority 
under applicable State laws governing such matters as custody, foster 
care, guardianship, separation, and divorce.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.406  Record of access.

    Each participating agency must keep a record of parties obtaining 
access to early intervention records collected, maintained, or used 
under part C of the Act (except access by parents and authorized 
representatives and 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 early intervention records.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.407  Records on more than one child.

    If any early intervention 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. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.408  List of types and locations of information.

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

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.409  Fees for records.

    (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, except as provided in paragraph (c) of this 
section.
    (b) A participating agency may not charge a fee to search for or to 
retrieve information under this part.
    (c) A participating agency must provide at no cost to parents, a 
copy of each evaluation, assessment of the child, family assessment, and 
IFSP as soon as possible after each IFSP meeting.

(Authority: 20 U.S.C. 1417(c), 1432(4)(B), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.410  Amendment of records at a parent's request.

    (a) A parent who believes that information in the early intervention 
records collected, maintained, or used under this part is inaccurate, 
misleading, or violates the privacy or other rights of the child or 
parent may request that the participating agency that maintains the 
information amend the information.
    (b) The participating 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 participating agency refuses 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.  303.411.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.411  Opportunity for a hearing.

    The participating agency must, on request, provide parents with the 
opportunity for a hearing to challenge information in their child's 
early intervention records to ensure that it is not inaccurate, 
misleading, or otherwise in violation of the privacy or other rights of 
the child or parents. A parent may request a due process hearing under 
the procedures in Sec.  303.430(d)(1) provided that such hearing 
procedures meet the

[[Page 215]]

requirements of the hearing procedures in Sec.  303.413 or may request a 
hearing directly under the State's procedures in Sec.  303.413 (i.e., 
procedures that are consistent with the FERPA hearing requirements in 34 
CFR 99.22).

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.412  Result of hearing.

    (a) If, as a result of the hearing, the participating agency decides 
that the information is inaccurate, misleading or in violation of the 
privacy or other rights of the child or parent, 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 in violation of the 
privacy or other rights of the child or parent, it must inform the 
parent of the right to place in the early intervention records it 
maintains on the child a statement commenting on the information or 
setting forth any reasons for disagreeing with the decision of the 
agency.
    (c) Any explanation placed in the early intervention records of the 
child under this section must--
    (1) Be maintained by the agency as part of the early intervention 
records of the child as long as the record or contested portion is 
maintained by the agency; and
    (2) If the early intervention records of the child or the contested 
portion are disclosed by the agency to any party, the explanation must 
also be disclosed to the party.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.413  Hearing procedures.

    A hearing held under Sec.  303.411 must be conducted according to 
the procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.414  Consent prior to disclosure or use.

    (a) Except as provided in paragraph (b) of this section, prior 
parental consent must be obtained before personally identifiable 
information is--
    (1) Disclosed to anyone other than authorized representatives, 
officials, or employees of participating agencies collecting, 
maintaining, or using the information under this part, subject to 
paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of this 
part.
    (b) A lead agency or other participating agency may not disclose 
personally identifiable information, as defined in Sec.  303.29, to any 
party except participating agencies (including the lead agency and EIS 
providers) that are part of the State's part C system without parental 
consent unless authorized to do so under--
    (1) Sections 303.401(d), 303.209(b)(1)(i) and (b)(1)(ii), and 
303.211(b)(6)(ii)(A); or
    (2) One of the exceptions enumerated in 34 CFR 99.31 (where 
applicable to part C), which are expressly adopted to apply to part C 
through this reference. In applying the exceptions in 34 CFR 99.31 to 
this part, participating agencies must also comply with the pertinent 
conditions in 34 CFR 99.32, 99.33, 99.34, 99.35, 99.36, 99.38, and 
99.39; in applying these provisions in 34 CFR part 99 to part C, the 
reference to--
    (i) 34 CFR 99.30 means Sec.  303.414(a);
    (ii) ``Education records'' means early intervention records under 
Sec.  303.403(b);
    (iii) ``Educational'' means early intervention under this part;
    (iv) ``Educational agency or institution'' means the participating 
agency under Sec.  303.404(c);
    (v) ``School officials and officials of another school or school 
system'' means qualified personnel or service coordinators under this 
part;
    (vi) ``State and local educational authorities'' means the lead 
agency under Sec.  303.22; and
    (vii) ``Student'' means child under this part.
    (c) The lead agency must provide policies and procedures to be used 
when a parent refuses to provide consent under this section (such as a 
meeting to explain to parents how their failure to consent affects the 
ability of their child to receive services under this part), provided 
that those procedures do not override a parent's right to refuse consent 
under Sec.  303.420.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[[Page 216]]

Sec.  303.415  Safeguards.

    (a) Each participating agency must protect the confidentiality of 
personally identifiable information at the collection, maintenance, use, 
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. Sec.  303.401 through 303.417 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. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.416  Destruction of information.

    (a) The participating agency must inform parents when personally 
identifiable information collected, maintained, or used under this part 
is no longer needed to provide services to the child under Part C of the 
Act, the GEPA provisions in 20 U.S.C. 1232f, EDGAR, 34 CFR part 76, and 
2 CFR part 200, as adopted in 2 CFR part 3474.
    (b) Subject to paragraph (a) of this section, the information must 
be destroyed at the request of the parents. However, a permanent record 
of a child's name, date of birth, parent contact information (including 
address and phone number), names of service coordinator(s) and EIS 
provider(s), and exit data (including year and age upon exit, and any 
programs entered into upon exiting) may be maintained without time 
limitation.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

Sec.  303.417  Enforcement.

    The lead agency must have in effect the policies and procedures, 
including sanctions and the right to file a complaint under Sec. Sec.  
303.432 through 303.434, that the State uses to ensure that its policies 
and procedures, consistent with Sec. Sec.  303.401 through 303.417, are 
followed and that the requirements of the Act and the regulations in 
this part are met.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

                       Parental Consent and Notice

Sec.  303.420  Parental consent and ability to decline services.

    (a) The lead agency must ensure parental consent is obtained 
before--
    (1) Administering screening procedures under Sec.  303.320 that are 
used to determine whether a child is suspected of having a disability;
    (2) All evaluations and assessments of a child are conducted under 
Sec.  303.321;
    (3) Early intervention services are provided to the child under this 
part;
    (4) Public benefits or insurance or private insurance is used if 
such consent is required under Sec.  303.520; and
    (5) Disclosure of personally identifiable information consistent 
with Sec.  303.414.
    (b) If a parent does not give consent under paragraph (a)(1), 
(a)(2), or (a)(3) of this section, the lead agency must make reasonable 
efforts to ensure that the parent--
    (1) Is fully aware of the nature of the evaluation and assessment of 
the child or early intervention services that would be available; and
    (2) Understands that the child will not be able to receive the 
evaluation, assessment, or early intervention service unless consent is 
given.
    (c) The lead agency may not use the due process hearing procedures 
under this part or part B of the Act to challenge a parent's refusal to 
provide any consent that is required under paragraph (a) of this 
section.
    (d) The parents of an infant or toddler with a disability--
    (1) Determine whether they, their infant or toddler with a 
disability, or other family members will accept or decline any early 
intervention service under this part at any time, in accordance with 
State law; and
    (2) May decline a service after first accepting it, without 
jeopardizing

[[Page 217]]

other early intervention services under this part.

(Authority: 20 U.S.C. 1436(e), 1439(a)(3))

Sec.  303.421  Prior written notice and procedural safeguards notice.

    (a) General. Prior written notice must be provided to parents a 
reasonable time before the lead agency or an EIS provider proposes, or 
refuses, to initiate or change the identification, evaluation, or 
placement of their infant or toddler, or the provision of early 
intervention services to the infant or toddler with a disability and 
that infant's or toddler's family.
    (b) Content of notice. The notice must be in sufficient detail to 
inform parents about--
    (1) The action that is being proposed or refused;
    (2) The reasons for taking the action; and
    (3) All procedural safeguards that are available under this subpart, 
including a description of mediation in Sec.  303.431, how to file a 
State complaint in Sec. Sec.  303.432 through 303.434 and a due process 
complaint in the provisions adopted under Sec.  303.430(d), and any 
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, as defined in Sec.  303.25, 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 or designated EIS 
provider must 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.

(Authority: 20 U.S.C. 1439(a)(6)-(7))

                            Surrogate Parents

Sec.  303.422  Surrogate parents.

    (a) General. Each lead agency or other public agency must ensure 
that the rights of a child are protected when--
    (1) No parent (as defined in Sec.  303.27) can be identified;
    (2) The lead agency or other public agency, after reasonable 
efforts, cannot locate 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. (1) 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 assignment process must include a method for--
    (i) Determining whether a child needs a surrogate parent; and
    (ii) Assigning a surrogate parent to the child.
    (2) In implementing the provisions under this section for children 
who are wards of the State or placed in foster care, the lead agency 
must consult with the public agency that has been assigned care of the 
child.
    (c) Wards of the State. In the case of a child who is a ward of the 
State, the surrogate parent, instead of being appointed by the lead 
agency under paragraph (b)(1) of this section, may be appointed by the 
judge overseeing the infant or toddler's case provided that the 
surrogate parent meets the requirements in paragraphs (d)(2)(i) and (e) 
of this section.
    (d) Criteria for selection of surrogate parents. (1) The lead agency 
or other 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 lead agency or any other public agency 
or EIS provider that provides early intervention services, education, 
care, or other services to the child or any family member of the child;

[[Page 218]]

    (ii) Has no personal or professional interest that conflicts with 
the interest of the child he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (e) Non-employee requirement; compensation. A person who is 
otherwise qualified 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) Surrogate parent responsibilities. The surrogate parent has the 
same rights as a parent for all purposes under this part.
    (g) Lead agency responsibility. The lead agency 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. 1439(a)(5))

                       Dispute Resolution Options

Sec.  303.430  State dispute resolution options.

    (a) General. Each statewide system must include written procedures 
for the timely administrative resolution of complaints through 
mediation, State complaint procedures, and due process hearing 
procedures, described in paragraphs (b) through (e) of this section.
    (b) Mediation. Each lead agency must make available to parties to 
disputes involving any matter under this part the opportunity for 
mediation that meets the requirements in Sec.  303.431.
    (c) State complaint procedures. Each lead agency must adopt written 
State complaint procedures to resolve any State complaints filed by any 
party regarding any violation of this part that meet the requirements in 
Sec. Sec.  303.432 through 303.434.
    (d) Due process hearing procedures. Each lead agency must adopt 
written due process hearing procedures to resolve complaints with 
respect to a particular child regarding any matter identified in Sec.  
303.421(a), by either adopting--
    (1) The part C due process hearing procedures under section 639 of 
the Act that--
    (i) Meet the requirements in Sec. Sec.  303.435 through 303.438; and
    (ii) Provide a means of filing a due process complaint regarding any 
matter listed in Sec.  303.421(a); or
    (2) The part B due process hearing procedures under section 615 of 
the Act and Sec. Sec.  303.440 through 303.449 (with either a 30-day or 
45-day timeline for resolving due process complaints, as provided in 
Sec.  303.440(c)).
    (e) Status of a child during the pendency of a due process 
complaint. (1) During the pendency of any proceeding involving a due 
process complaint under paragraph (d) of this section, unless the lead 
agency and parents of an infant or toddler with a disability otherwise 
agree, the child must continue to receive the appropriate early 
intervention services in the setting identified in the IFSP that is 
consented to by the parents.
    (2) If the due process complaint under paragraph (d) of this section 
involves an application for initial services under part C of the Act, 
the child must receive those services that are not in dispute.

(Approved by Office of Management and Budget under control number 1820-
0678 and 1820-NEW)

(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 1415(f)(3)(A)-(D), 1439)

                                Mediation

Sec.  303.431  Mediation.

    (a) General. Each lead 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 
at any time.
    (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, 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.

[[Page 219]]

    (2)(i) The State must maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of early intervention services.
    (ii) The lead agency must select mediators on a random, rotational, 
or other impartial basis.
    (3) The State must bear the cost of the mediation process, including 
the costs of meetings described in paragraph (d) of this section.
    (4) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (5) 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 lead 
agency who has the authority to bind such agency.
    (6) 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.
    (7) 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 lead agency or an EIS provider 
that is involved in the provision of early intervention services or 
other services to 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 a lead agency or an early intervention provider solely 
because he or she is paid by the agency or provider to serve as a 
mediator.
    (d) Meeting to encourage mediation. A lead agency may establish 
procedures to offer to parents and EIS providers 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--
    (1) Who is under contract with an appropriate alternative dispute 
resolution entity, or a parent training and information center or 
community parent resource center in the State established under section 
671 or 672 of the Act; and
    (2) Who would explain the benefits of, and encourage the use of, the 
mediation process to the parents.

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

(Authority: 20 U.S.C. 1415(e), 1439(a)(8))

                       State Complaint Procedures

Sec.  303.432  Adoption of State complaint procedures.

    (a) General. Each lead agency 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 in Sec.  303.434 by providing for the filing of a complaint 
with the lead agency; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
Protection and Advocacy (P&A) agencies, and other appropriate entities, 
the State procedures under Sec. Sec.  303.432 through 303.434.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which the lead agency has found a failure to provide 
appropriate services, the lead agency, pursuant to its general 
supervisory authority under part C of the Act, must address--
    (1) The failure to provide appropriate services, including 
corrective actions appropriate to address the needs of the infant or 
toddler with a disability who is the subject of the complaint and the 
infant's or toddler's family (such as compensatory services or monetary 
reimbursement); and

[[Page 220]]

    (2) Appropriate future provision of services for all infants and 
toddlers with disabilities and their families.

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

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.433  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each lead agency must include in 
its complaint procedures a time limit of 60 days after a complaint is 
filed under Sec.  303.434 to--
    (1) Carry out an independent on-site investigation, if the lead 
agency 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 lead agency, public agency, or EIS provider with an 
opportunity to respond to the complaint, including, at a minimum--
    (i) At the discretion of the lead agency, a proposal to resolve the 
complaint; and
    (ii) An opportunity for a parent who has filed a complaint and the 
lead agency, public agency, or EIS provider to voluntarily engage in 
mediation, consistent with Sec. Sec.  303.430(b) and 303.431;
    (4) Review all relevant information and make an independent 
determination as to whether the lead agency, public agency, or EIS 
provider is violating a requirement of part C 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 lead agency's final decision.
    (b) Time extension; final decision; 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--
    (i) Exceptional circumstances exist with respect to a particular 
complaint; or
    (ii) The parent (or individual or organization, if mediation is 
available to the individual or organization under State procedures) and 
the lead agency, public agency or EIS provider involved agree to extend 
the time to engage in mediation pursuant to paragraph (a)(3)(ii) of this 
section; 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.  303.430(d). (1) If a written complaint is received that is 
also the subject of a due process hearing under Sec.  303.430(d), 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 hearing 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 lead agency must inform the complainant to that effect.
    (3) A complaint alleging a lead agency, public agency, or EIS 
provider's failure to implement a due process hearing decision must be 
resolved by the lead agency.

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

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.434  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Sec. Sec.  303.432 and 
303.433.
    (b) The complaint must include--
    (1) A statement that the lead agency, public agency, or EIS provider 
has violated a requirement of part C of the Act;
    (2) The facts on which the statement is based;

[[Page 221]]

    (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 EIS provider serving the child;
    (iii) A description of the nature of the problem of the child, 
including facts relating to the problem; and
    (iv) 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.  303.432.
    (d) The party filing the complaint must forward a copy of the 
complaint to the public agency or EIS provider serving the child at the 
same time the party files the complaint with the lead agency.

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

(Authority: 20 U.S.C. 1439(a)(1))

 States That Choose To Adopt the Part C Due Process Hearing Procedures 
                      Under Section 639 of the Act

Sec.  303.435  Appointment of an impartial due process hearing officer.

    (a) Qualifications and duties. Whenever a due process complaint is 
received under Sec.  303.430(d), a due process hearing officer 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 early intervention services available for, infants and toddlers 
with disabilities and their families; and
    (2) Perform the following duties:
    (i)(A) Listen to the presentation of relevant viewpoints about the 
due process complaint.
    (B) Examine all information relevant to the issues.
    (C) Seek to reach a timely resolution of the due process complaint.
    (ii) Provide a record of the proceedings, including a written 
decision.
    (b) Definition of impartial. (1) Impartial means that the due 
process hearing officer appointed to implement the due process hearing 
under this part--
    (i) Is not an employee of the lead agency or an EIS provider 
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 due process hearing procedures or 
mediation procedures under this part.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.436  Parental rights in due process hearing proceedings.

    (a) General. Each lead agency must ensure that the parents of a 
child referred to part C are afforded the rights in paragraph (b) of 
this section in the due process hearing carried out under Sec.  
303.430(d).
    (b) Rights. Any parent involved in a due process hearing 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 infants and toddlers with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to the parent at least five days before the 
hearing;
    (4) Obtain a written or electronic verbatim transcription of the 
hearing at no cost to the parent; and
    (5) Receive a written copy of the findings of fact and decisions at 
no cost to the parent.

(Authority: 20 U.S.C. 1439(a))

Sec.  303.437  Convenience of hearings and timelines.

    (a) Any due process hearing conducted under this subpart must be 
carried out at a time and place that is reasonably convenient to the 
parents.

[[Page 222]]

    (b) Each lead agency must ensure that, not later than 30 days after 
the receipt of a parent's due process complaint, the due process hearing 
required under this subpart is completed and a written decision mailed 
to each of the parties.
    (c) A hearing officer may grant specific extensions of time beyond 
the period set out in paragraph (b) of this section at the request of 
either party.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.438  Civil action.

    Any party aggrieved by the findings and decision issued pursuant to 
a due process complaint has the right to bring a civil action in State 
or Federal court under section 639(a)(1) of the Act.

(Authority: 20 U.S.C. 1439(a)(1))

 States That Choose To Adopt the Part B Due Process Hearing Procedures 
                      Under Section 615 of the Act

Sec.  303.440  Filing a due process complaint.

    (a) General. (1) A parent, EIS provider, or a lead agency may file a 
due process complaint on any of the matters described in Sec.  
303.421(a), relating to the identification, evaluation, or placement of 
a child, or the provision of early intervention services to the infant 
or toddler with a disability and his or her family under part C of the 
Act.
    (2) The due process complaint must allege a violation that occurred 
not more than two years before the date the parent or EIS provider 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.  303.443(f) apply to the timeline in this 
section.
    (b) Information for parents. The lead 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 EIS provider files a due process complaint under 
this section.
    (c) Timeline for Resolution. The lead agency may adopt a 30- or 45-
day timeline, subject to Sec.  303.447(a), for the resolution of due 
process complaints and must specify in its written policies and 
procedures under Sec.  303.123 and in its prior written notice under 
Sec.  303.421, the specific timeline it has adopted.

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

(Authority: 20 U.S.C. 1415(b)(6), 1439)

Sec.  303.441  Due process complaint.

    (a) General. (1) The lead 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 lead agency.
    (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 EIS provider serving the child;
    (4) In the case of a homeless child (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 EIS provider serving the child;
    (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

[[Page 223]]

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 in 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.  303.442; 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.  303.442(a) and the time period to 
resolve in Sec.  303.442(b) begin again with the filing of the amended 
due process complaint.
    (e) Lead agency response to a due process complaint. (1) If the lead 
agency has not sent a prior written notice under Sec.  303.421 to the 
parent regarding the subject matter contained in the parent's due 
process complaint, the lead agency or EIS provider must, within 10 days 
of receiving the due process complaint, send to the parent a response 
that includes--
    (i) An explanation of why the lead agency or EIS provider proposed 
or refused to take the action raised in the due process complaint;
    (ii) A description of other options that the IFSP Team considered 
and the reasons why those options were rejected;
    (iii) A description of each evaluation procedure, assessment, 
record, or report the lead agency or EIS provider 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 or EIS provider's proposed or refused action.
    (2) A response by the lead agency under paragraph (e)(1) of this 
section does not preclude the lead agency 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), 1439)

Sec.  303.442  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.  303.443, the lead agency must convene a 
meeting with the parent and the relevant member or members of the IFSP 
Team who have specific knowledge of the facts identified in the due 
process complaint that--
    (i) Includes a representative of the lead agency who has decision-
making authority on behalf of that agency; and
    (ii) May not include an attorney of the lead agency unless the 
parent is accompanied by an attorney.
    (2) The purpose of the resolution 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 lead agency has the 
opportunity to resolve the dispute that is the basis for the due process 
complaint.
    (3) The meeting described in paragraphs (a)(1) and (a)(2) of this 
section need not be held if--
    (i) The parent and lead agency agree in writing to waive the 
meeting; or
    (ii) The parent and lead agency agree to use the mediation process 
described in Sec.  303.431.
    (4) The parent and the lead agency must determine the relevant 
members of the IFSP Team to attend the meeting.

[[Page 224]]

    (b) Resolution period. (1) If the lead agency has not resolved the 
due process complaint to the satisfaction of the parties 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.  303.447 begins at the 
expiration of the 30-day period in paragraph (b)(1) of this section.
    (3) Except where the parties have jointly agreed to waive the 
resolution process or to use mediation, notwithstanding paragraphs 
(b)(1) and (b)(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 lead agency is unable to obtain the participation of the 
parent in the resolution meeting after reasonable efforts have been 
made, including documenting its efforts, the lead agency may, at the 
conclusion of the 30-day period, request that the hearing officer 
dismiss the parent's due process complaint.
    (5) If the lead agency 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 30- or 45-day 
timeline adopted by the lead agency under Sec.  303.440(c) for the due 
process hearing described in Sec.  303.447(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 lead 
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 (a)(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 lead 
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 lead agency, if the 
State has other mechanisms or procedures that permit parties to seek 
enforcement of resolution agreements pursuant to this section.
    (e) Agreement review period. If the parties execute an agreement 
pursuant to paragraph (d) of this section, a party may void the 
agreement within three business days of the agreement's execution.

(Authority: 20 U.S.C. 1415(f)(1)(B), 1439)

Sec.  303.443  Impartial due process hearing.

    (a) General. Whenever a due process complaint is received consistent 
with Sec.  303.440, the parents or the EIS provider involved in the 
dispute must have an opportunity for an impartial due process hearing, 
consistent with the procedures in Sec. Sec.  303.440 through 303.442.
    (b) Agency responsible for conducting the due process hearing. The 
hearing described in paragraph (a) of this section must be conducted by 
the lead agency directly responsible for the early intervention services 
of the infant or toddler, as determined under State statute, State 
regulation, or a written policy of the lead agency.
    (c) Impartial hearing officer. (1) At a minimum, a hearing officer--
    (i) Must not be--
    (A) An employee of the lead agency or the EIS provider that is 
involved in the early intervention services or care of the infant or 
toddler; 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

[[Page 225]]

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 lead 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.  
303.441(b), unless the other party agrees otherwise.
    (e) Timeline for requesting a hearing. A parent, lead agency, or EIS 
provider must request an impartial hearing on their due process 
complaint within two years of the date the parent, lead agency, or EIS 
provider 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 lead agency or EIS provider 
that it had resolved the problem forming the basis of the due process 
complaint; or
    (2) The lead agency's or EIS provider's failure to provide the 
parent information that was required under this part to be provided to 
the parent.

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

(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D), 1439)

Sec.  303.444  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to Sec. Sec.  
303.440 through 303.445, or an appeal conducted pursuant to Sec.  
303.446, 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 infants or 
toddlers with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least 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.  303.443(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--
    (1) Be given the right to open the hearing to the public; and
    (2) Receive a copy of the record of the hearing and the findings of 
fact and decisions described in paragraphs (a)(4) and (a)(5) of this 
section at no cost.

(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 1439)

Sec.  303.445  Hearing decisions.

    (a) Decision of hearing officer. (1) Subject to paragraph (a)(2) of 
this section, a hearing officer's determination of whether an infant or 
toddler was appropriately identified, evaluated, or placed, or whether 
the infant or toddler with a disability and his or her family were 
appropriately provided early intervention services under part C of

[[Page 226]]

the Act, must be based on substantive grounds.
    (2) In matters alleging a procedural violation, a hearing officer 
may find that a child was not appropriately identified, evaluated, 
placed, or provided early intervention services under part C of the Act 
only if the procedural inadequacies--
    (i) Impeded the child's right to identification, evaluation, and 
placement or provision of early intervention services for the child and 
that child's family under part C of the Act;
    (ii) Significantly impeded the parent's opportunity to participate 
in the decision-making process regarding identification, evaluation, 
placement or provision of early intervention services for the child and 
that child's family under part C of the Act; or
    (iii) Caused a deprivation of educational or developmental benefit.
    (3) Nothing in paragraph (a) of this section precludes a hearing 
officer from ordering the lead agency or EIS provider to comply with 
procedural requirements under Sec. Sec.  303.400 through 303.449.
    (b) Construction clause. Nothing in Sec. Sec.  303.440 through 
303.445 affects the right of a parent to file an appeal of the due 
process hearing decision with the lead agency under Sec.  303.446(b), if 
the lead agency level appeal is available.
    (c) Separate due process complaint. Nothing in Sec. Sec.  303.440 
through 303.449 precludes a parent from filing a separate due process 
complaint on an issue separate from a due process complaint already 
filed.
    (d) Findings and decisions to general public. The lead agency, after 
deleting any personally identifiable information, must make the findings 
and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(3)(E)-(F), 1415(h)(4), 1415(o), 1439)

Sec.  303.446  Finality of decision; appeal; impartial review.

    (a) Finality of hearing decision. A decision made in a hearing 
conducted pursuant to Sec. Sec.  303.440 through 303.445 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.  303.448.
    (b) Appeal of decisions; impartial review. (1) The lead agency may 
provide for procedures to allow any party aggrieved by the findings and 
decision in the hearing to appeal to the lead agency.
    (2) If there is an appeal, the lead agency must conduct an impartial 
review of the findings and decision appealed. The official conducting 
the review must--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent with 
the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is held to 
receive additional evidence, the rights in Sec.  303.444 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 of fact and decision to the general public. The lead 
agency, after deleting any personally identifiable information, must 
make the findings of fact and decisions described in paragraph 
(b)(2)(vi) of this section available to the general public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under Sec.  
303.448.

(Authority: 20 U.S.C. 1415(g), 1415(h)(4), 1415(i)(1)(A), 1415(i)(2), 
1439)

Sec.  303.447  Timelines and convenience of hearings and reviews.

    (a) The lead agency must ensure that not later than either 30 days 
or 45 days (consistent with the lead agency's written policies and 
procedures adopted under Sec.  303.440(c)) after the expiration of the 
30-day period in Sec.  303.442(b), or the adjusted 30-day time periods 
described in Sec.  303.442(c))--
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.

[[Page 227]]

    (b) The lead agency 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), 1439)

Sec.  303.448  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Sec. Sec.  303.440 through 303.445 who does not have the right to 
an appeal under Sec.  303.446(b), and any party aggrieved by the 
findings and decision under Sec.  303.446(b), has the right to bring a 
civil action with respect to the due process complaint under Sec.  
303.440. 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 has 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 C 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, the procedures under Sec. Sec.  303.440 and 
303.446 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), 1415(i)(3)(A), 1415(l), 1439)

Sec.  303.449  State enforcement mechanisms.

    Notwithstanding Sec. Sec.  303.431(b)(6) and 303.442(d)(2), which 
provide for judicial enforcement of a written agreement reached as a 
result of a mediation or a resolution meeting, there is nothing in this 
part that would prevent the State 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 or competent 
jurisdiction or in a district court of the United States.

(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B), 1439)

             Subpart F_Use of Funds and Payor of Last Resort

                                 General

Sec.  303.500  Use of funds, payor of last resort, and system of 
          payments.

    (a) Statewide system. Each statewide system must include written 
policies and procedures that meet the requirements of the--
    (1) Use of funds provisions in Sec.  303.501; and
    (2) Payor of last resort provisions in Sec. Sec.  303.510 through 
303.521 (regarding the identification and coordination of

[[Page 228]]

funding resources for, and the provision of, early intervention services 
under part C of the Act within the State).
    (b) System of Payments. A State may establish, consistent with 
Sec. Sec.  303.13(a)(3) and 303.203(b), a system of payments for early 
intervention services under part C of the Act, including a schedule of 
sliding fees or cost participation fees (such as co-payments, premiums, 
or deductibles) required to be paid under Federal, State, local, or 
private programs of insurance or benefits for which the infant or 
toddler with a disability or the child's family is enrolled, that meets 
the requirements of Sec. Sec.  303.520 and 303.521.

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10)-(12), 1437(b), 1438, 
1439(a), 1440)

                              Use of Funds

Sec.  303.501  Permissive use of funds by the lead agency.

    Consistent with Sec. Sec.  303.120 through 303.122 and Sec. Sec.  
303.220 through 303.226, a lead agency may use funds under this part for 
activities or expenses that are reasonable and necessary for 
implementing the State's early intervention program for infants and 
toddlers with disabilities including funds--
    (a) For direct early intervention services for infants and toddlers 
with disabilities and their families under this part that are not 
otherwise funded through other public or private sources (subject to 
Sec. Sec.  303.510 through 303.521);
    (b) To expand and improve services for infants and toddlers with 
disabilities and their families under this part that are otherwise 
available;
    (c)(1) To provide FAPE as that term is defined in Sec.  303.15, in 
accordance with part B of the Act, to children with disabilities from 
their third birthday to the beginning of the following school year;
    (2) The provision of FAPE under paragraph (c)(1) of this section 
does not apply to children who continue to receive early intervention 
services under this part in accordance with paragraph (d) of this 
section and Sec.  303.211;
    (d) With the written consent of the parents, to continue to provide 
early intervention services under this part, in lieu of FAPE provided in 
accordance with part B of the Act, to children with disabilities from 
their third birthday (pursuant to Sec.  303.211) until those children 
enter, or are eligible under State law to enter, kindergarten; and
    (e) In any State that does not provide services under Sec.  303.204 
for at-risk infants and toddlers, as defined in Sec.  303.5, 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 and private community-
based organizations, services, and personnel for the purposes of--
    (1) Identifying and evaluating at-risk infants and toddlers;
    (2) Making referrals for the infants and toddlers identified and 
evaluated under paragraph (e)(1) of this section; and
    (3) Conducting periodic follow-up on each referral, 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. 1435(a)(10)-(12), 1437(b), 1438)

                Payor of Last Resort--General Provisions

Sec.  303.510  Payor of last resort.

    (a) Nonsubstitution of funds. Except as provided in paragraph (b) 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 Department 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 infant or toddler with a disability 
needs but is not currently entitled to receive or have payment made from 
any other Federal, State, local, or private source (subject to 
Sec. Sec.  303.520 and 303.521).
    (b) Interim payments--reimbursement. If necessary to prevent a delay 
in the timely provision of appropriate early intervention services to a 
child or the child's family, funds under this part may be used to pay 
the provider of

[[Page 229]]

services (for services and functions authorized under this part, 
including health services, as defined in Sec.  303.16 (but not medical 
services), functions of the child find system described in Sec. Sec.  
303.115 through 303.117 and Sec. Sec.  303.301 through 303.320, and 
evaluations and assessments in Sec.  303.321), pending reimbursement 
from the agency or entity that has ultimate responsibility for the 
payment.
    (c) Non-reduction of benefits. Nothing in this part may be construed 
to permit a State to reduce medical or other assistance available in the 
State or to alter eligibility under Title V of the Social Security Act, 
42 U.S.C. 701, et seq. (SSA) (relating to maternal and child health) or 
Title XIX of the SSA, 42 U.S.C. 1396 (relating to Medicaid), including 
section 1903(a) of the SSA regarding medical assistance for services 
furnished to an infant or toddler with a disability when those services 
are included in the child's IFSP adopted pursuant to part C of the Act.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1437(a)(2), 1440(a), 1440(c))

Sec.  303.511  Methods to ensure the provision of, and financial 
          responsibility for, Part C services.

    (a) General. Each State must ensure that it has in place methods for 
State interagency coordination. Under these methods, the Chief Executive 
Officer of a State or designee of the Officer must ensure that the 
interagency agreement or other method for interagency coordination is in 
effect between each State public agency and the designated lead agency 
in order to ensure--
    (1) The provision of, and establishing financial responsibility for, 
early intervention services provided under this part; and
    (2) Such services are consistent with the requirement in section 635 
of the Act and the State's application under section 637 of the Act, 
including the provision of such services during the pendency of any 
dispute between State agencies.
    (b) The methods in paragraph (a) of this section must meet all 
requirements in this section and be set forth in one of the following:
    (1) State law or regulation;
    (2) Signed interagency and intra-agency agreements between 
respective agency officials that clearly identify the financial and 
service provision responsibilities of each agency (or entity within the 
agency); or
    (3) Other appropriate written methods determined by the Governor of 
the State, or the Governor's designee, and approved by the Secretary 
through the review and approval of the State's application.
    (c) Procedures for resolving disputes. (1) Each method 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 service 
program. Those procedures must include a mechanism for resolution of 
disputes within agencies and for the Governor, Governor's designee, or 
the lead agency to make a final determination for interagency disputes, 
which determination must be binding upon the agencies involved.
    (2) The method 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.
    (3) If, during the lead agency's resolution of the dispute, the 
Governor, Governor's designee, or lead agency determines that the 
assignment of financial responsibility under this section was 
inappropriately made--
    (i) The Governor, Governor's designee, or lead agency must reassign 
the financial responsibility to the appropriate agency; and
    (ii) The lead agency must make arrangements for reimbursement of any 
expenditures incurred by the agency originally assigned financial 
responsibility.
    (d) Delivery of services in a timely manner. The methods adopted by 
the State under this section must--
    (1) Include a mechanism to ensure that no services that a child is 
entitled to receive under this part are delayed

[[Page 230]]

or denied because of disputes between agencies regarding financial or 
other responsibilities; and
    (2) Be consistent with the written funding policies adopted by the 
State under this subpart and include any provisions the State has 
adopted under Sec.  303.520 regarding the use of insurance to pay for 
part C services.
    (e) Additional components. Each method must include any additional 
components necessary to ensure effective cooperation and coordination 
among, and the lead agency's general supervision (including monitoring) 
of, EIS providers (including all public agencies) involved in the 
State's early intervention service programs.

(Authority: 20 U.S.C. 1435(a)(10), 1437(a)(2), 1440(b))

Payor of Last Resort & System of Payments Provisions--Use of Insurance, 
                 Benefits, Systems of Payments, and Fees

Sec.  303.520  Policies related to use of public benefits or insurance 
          or private insurance to pay for Part C services.

    (a) Use of public benefits or public insurance to pay for part C 
services. (1) A State may not use the public benefits or insurance of a 
child or parent to pay for part C services unless the State provides 
written notification, consistent with Sec.  303.520(a)(3), to the 
child's parents, and the State meets the no-cost protections identified 
in paragraph (a)(2) of this section.
    (2) With regard to using the public benefits or insurance of a child 
or parent to pay for part C services, the State--
    (i) May not require a parent to sign up for or enroll in public 
benefits or insurance programs as a condition of receiving part C 
services and must obtain consent prior to using the public benefits or 
insurance of a child or parent if that child or parent is not already 
enrolled in such a program;
    (ii) Must obtain consent, consistent with Sec. Sec.  303.7 and 
303.420(a)(4), to use a child's or parent's public benefits or insurance 
to pay for part C services if that use would--
    (A) Decrease available lifetime coverage or any other insured 
benefit for that child or parent under that program;
    (B) Result in the child's parents paying for services that would 
otherwise be covered by the public benefits or insurance program;
    (C) Result in any increase in premiums or discontinuation of public 
benefits or insurance for that child or that child's parents; or
    (D) Risk loss of eligibility for the child or that child's parents 
for home and community-based waivers based on aggregate health-related 
expenditures.
    (iii) If the parent does not provide consent under paragraphs 
(a)(2)(i) or (a)(2)(ii) of this section, the State must still make 
available those part C services on the IFSP to which the parent has 
provided consent.
    (3) Prior to using a child's or parent's public benefits or 
insurance to pay for part C services, the State must provide written 
notification to the child's parents. The notification must include--
    (i) A statement that parental consent must be obtained under Sec.  
303.414, if that provision applies, before the State lead agency or EIS 
provider discloses, for billing purposes, a child's personally 
identifiable information to the State public agency responsible for the 
administration of the State's public benefits or insurance program 
(e.g., Medicaid);
    (ii) A statement of the no-cost protection provisions in Sec.  
303.520(a)(2) and that if the parent does not provide the consent under 
Sec.  303.520(a)(2), the State lead agency must still make available 
those part C services on the IFSP for which the parent has provided 
consent;
    (iii) A statement that the parents have the right under Sec.  
303.414, if that provision applies, to withdraw their consent to 
disclosure of personally identifiable information to the State public 
agency responsible for the administration of the State's public benefits 
or insurance program (e.g., Medicaid) at any time; and
    (iv) A statement of the general categories of costs that the parent 
would incur as a result of participating in a public benefits or 
insurance program (such as co-payments or deductibles, or the required 
use of private insurance as the primary insurance).

[[Page 231]]

    (4) If a State requires a parent to pay any costs that the parent 
would incur as a result of the State's using a child's or parent's 
public benefits or insurance to pay for part C services (such as co-
payments or deductibles, or the required use of private insurance as the 
primary insurance), those costs must be identified in the State's system 
of payments policies under Sec.  303.521 and included in the 
notification provided to the parent under paragraph (a)(3) of this 
section; otherwise, the State cannot charge those costs to the parent.
    (b) Use of private insurance to pay for Part C services. (1)(i) The 
State may not use the private insurance of a parent of an infant or 
toddler with a disability to pay for part C services unless the parent 
provides parental consent, consistent with Sec. Sec.  303.7 and 
303.420(a)(4), to use private insurance to pay for part C services for 
his or her child or the State meets one of the exceptions in paragraph 
(b)(2) of this section. This includes the use of private insurance when 
such use is a prerequisite for the use of public benefits or insurance. 
Parental consent must be obtained--
    (A) When the lead agency or EIS provider seeks to use the parent's 
private insurance or benefits to pay for the initial provision of an 
early intervention service in the IFSP; and
    (B) Each time consent for services is required under Sec.  
303.420(a)(3) due to an increase (in frequency, length, duration, or 
intensity) in the provision of services in the child's IFSP.
    (ii) If a State requires a parent to pay any costs that the parent 
would incur as a result of the State's use of private insurance to pay 
for early intervention services (such as co-payments, premiums, or 
deductibles), those costs must be identified in the State's system of 
payments policies under Sec.  303.521; otherwise, the State may not 
charge those costs to the parent.
    (iii) When obtaining parental consent required under paragraph 
(b)(1)(i) of this section or initially using benefits under a child or 
parent's private insurance policy to pay for an early intervention 
service under paragraph (b)(2) of this section, the State must provide 
to the parent a copy of the State's system of payments policies that 
identifies the potential costs that the parent may incur when their 
private insurance is used to pay for early intervention services under 
this part (such as co-payments, premiums, or deductibles or other long-
term costs such as the loss of benefits because of annual or lifetime 
health insurance coverage caps under the insurance policy).
    (2) The parental consent requirements in paragraph (b)(1) of this 
section do not apply if the State has enacted a State statute regarding 
private health insurance coverage for early intervention services under 
part C of the Act, that expressly provides that--
    (i) The use of private health insurance to pay for part C services 
cannot count towards or result in a loss of benefits due to the annual 
or lifetime health insurance coverage caps for the infant or toddler 
with a disability, the parent, or the child's family members who are 
covered under that health insurance policy;
    (ii) The use of private health insurance to pay for part C services 
cannot negatively affect the availability of health insurance to the 
infant or toddler with a disability, the parent, or the child's family 
members who are covered under that health insurance policy, and health 
insurance coverage may not be discontinued for these individuals due to 
the use of the health insurance to pay for services under part C of the 
Act; and
    (iii) The use of private health insurance to pay for part C services 
cannot be the basis for increasing the health insurance premiums of the 
infant or toddler with a disability, the parent, or the child's family 
members covered under that health insurance policy.
    (3) If a State has enacted a State statute that meets the 
requirements in paragraph (b)(2) of this section, regarding the use of 
private health insurance coverage to pay for early intervention services 
under part C of the Act, the State may reestablish a new baseline of 
State and local expenditures under Sec.  303.225(b) in the next Federal 
fiscal year following the effective date of the statute.
    (c) Inability to pay. If a parent or family of an infant or toddler 
with a disability is determined unable to pay under the State's 
definition of inability to pay under Sec.  303.521(a)(3) and does not

[[Page 232]]

provide consent under paragraph (b)(1), the lack of consent may not be 
used to delay or deny any services under this part to that child or 
family.
    (d) Proceeds or funds from public insurance or benefits or from 
private insurance. (1) Proceeds or funds from public insurance or 
benefits or from private insurance are not treated as program income for 
purposes of 2 CFR 200.307.
    (2) If the State receives reimbursements from Federal funds (e.g., 
Medicaid reimbursements attributable directly to Federal funds) for 
services under part C of the Act, those funds are considered neither 
State nor local funds under Sec.  303.225(b).
    (3) If the State spends funds from private insurance for services 
under this part, those funds are considered neither State nor local 
funds under Sec.  303.225.
    (e) Funds received from a parent or family member under a State's 
system of payments. Funds received by the State from a parent or family 
member under the State's system of payments established under Sec.  
303.521 are considered program income under 2 CFR 200.307. These funds--
    (1) Are not deducted from the total allowable costs charged under 
part C of the Act (as set forth in 2 CFR 200.307(e)(1));
    (2) Must be used for the State's part C early intervention services 
program, consistent with 2 CFR 200.307(e)(2); and
    (3) Are considered neither State nor local funds under Sec.  
303.225(b).

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1439(a))

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

Sec.  303.521  System of payments and fees.

    (a) General. If a State elects to adopt a system of payments in 
Sec.  303.500(b), the State's system of payments policies must be in 
writing and specify which functions or services, if any, are subject to 
the system of payments (including any fees charged to the family as a 
result of using one or more of the family's public insurance or benefits 
or private insurance), and include--
    (1) The payment system and schedule of sliding or cost participation 
fees that may be charged to the parent for early intervention services 
under this part;
    (2) The basis and amount of payments or fees;
    (3) The State's definition of ability to pay (including its 
definition of income and family expenses, such as extraordinary medical 
expenses), its definition of inability to pay, and when and how the 
State makes its determination of the ability or inability to pay;
    (4) An assurance that--
    (i) Fees will not be charged to parents for the services that a 
child is otherwise entitled to receive at no cost (including those 
services identified under paragraphs (a)(4)(ii), (b), and (c) of this 
section);
    (ii) The inability of the parents of an infant or toddler with a 
disability to pay for services will not result in a delay or denial of 
services under this part to the child or the child's family such that, 
if the parent or family meets the State's definition of inability to 
pay, the infant or toddler with a disability must be provided all part C 
services at no cost.
    (iii) Families will not be charged any more than the actual cost of 
the part C service (factoring in any amount received from other sources 
for payment for that service); and
    (iv) Families with public insurance or benefits or private insurance 
will not be charged disproportionately more than families who do not 
have public insurance or benefits or private insurance;
    (5) Provisions stating that the failure to provide the requisite 
income information and documentation may result in a charge of a fee on 
the fee schedule and specify the fee to be charged; and
    (6) Provisions that permit, but do not require, the lead agency to 
use part C or other funds to pay for costs such as the premiums, 
deductibles, or co-payments.
    (b) Functions not subject to fees. The following are required 
functions that must be carried out at public expense, and for which no 
fees may be charged to parents:
    (1) Implementing the child find requirements in Sec. Sec.  303.301 
through 303.303.

[[Page 233]]

    (2) Evaluation and assessment, in accordance with Sec.  303.320, and 
the functions related to evaluation and assessment in Sec.  303.13(b).
    (3) Service coordination services, as defined in Sec. Sec.  
303.13(b)(11) and 303.33.
    (4) Administrative and coordinative activities related to--
    (i) The development, review, and evaluation of IFSPs and interim 
IFSPs in accordance with Sec. Sec.  303.342 through 303.345; 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 subpart D of this part and this subpart.
    (c) States with FAPE mandates, or that use funds under Part B of the 
Act to serve children under age three. If a State has in effect a State 
law requiring the provision of FAPE for, or uses part B funds to serve, 
an infant or toddler with a disability under the age of three (or any 
subset of infants and toddlers with disabilities under the age of 
three), the State may not charge the parents of the infant or toddler 
with a disability for any services (e.g., physical or occupational 
therapy) under this part that are part of FAPE for that infant or 
toddler and the child's family, and those FAPE services must meet the 
requirements of both parts B and C of the Act.
    (d) Family fees. (1) Fees or costs collected from a parent or the 
child's family to pay for early intervention services under a State's 
system of payments are program income under 2 CFR 200.307. A State may 
add this program income to its part C grant funds, rather than deducting 
the program income from the amount of the State's part C grant. Any fees 
collected must be used for the purposes of the grant under part C of the 
Act.
    (2) Fees collected under a system of payments are considered neither 
State nor local funds under Sec.  303.225(b).
    (e) Procedural Safeguards. (1) Each State system of payments must 
include written policies to inform parents that a parent who wishes to 
contest the imposition of a fee, or the State's determination of the 
parent's ability to pay, may do one of the following:
    (i) Participate in mediation in accordance with Sec.  303.431.
    (ii) Request a due process hearing under Sec.  303.436 or 303.441, 
whichever is applicable.
    (iii) File a State complaint under Sec.  303.434.
    (iv) Use any other procedure established by the State for speedy 
resolution of financial claims, provided that such use does not delay or 
deny the parent's procedural rights under this part, including the right 
to pursue, in a timely manner, the redress options described in 
paragraphs (e)(2)(i) through (e)(2)(iii) of this section.
    (2) A State must inform parents of these procedural safeguard 
options by either--
    (i) Providing parents with a copy of the State's system of payments 
policies when obtaining consent for provision of early intervention 
services under Sec.  303.420(a)(3); or
    (ii) Including this information with the notice provided to parents 
under Sec.  303.421.

(Authority: 20 U.S.C. 1432(4)(B), 1439(a), 1440)

[76 FR 60244, Sept. 28, 2011, as amended at 79 FR 76097, Dec. 19, 2014]

            Subpart G_State Interagency Coordinating Council

Sec.  303.600  Establishment of Council.

    (a) A State that desires to receive financial assistance under part 
C of the Act must establish a State Interagency Coordinating Council 
(Council) as defined in Sec.  303.8.
    (b) The Council must be appointed by the Governor. The Governor must 
ensure that the membership of the Council reasonably represents the 
population of the State.
    (c) The Governor must 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.  303.201 may not serve as the chairperson of the 
Council.

(Authority: 20 U.S.C. 1441(a))

Sec.  303.601  Composition.

    (a) The Council must be composed as follows:

[[Page 234]]

    (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 years or younger, with knowledge of, or 
experience with, programs for infants and toddlers with disabilities.
    (ii) At least one parent member must be a parent of an infant or 
toddler with a disability or a child with a disability aged six years 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 provision 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 SEA responsible for preschool services to children 
with disabilities; and
    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of the SEA.
    (7) At least one member must be from the agency responsible for the 
State Medicaid and CHIP program.
    (8) At least one member must be from a Head Start or Early Head 
Start agency or program in the State.
    (9) At least one member must be from a State agency responsible for 
child care.
    (10) At least one member must be from the agency responsible for the 
State regulation of private health insurance.
    (11) At least one member must be a representative designated by the 
Office of the Coordination of Education of Homeless Children and Youth.
    (12) At least one member must be a representative from the State 
child welfare agency responsible for foster care.
    (13) At least one member must be from the State agency responsible 
for children's mental health.
    (b) The Governor may appoint one member to represent more than one 
program or agency listed in paragraphs (a)(7) through (a)(13) of this 
section.
    (c) The Council may include other members selected by the Governor, 
including a representative from the Bureau of Indian Education (BIE) or, 
where there is no school operated or funded by the BIE in the State, 
from the Indian Health Service or the tribe or tribal council.
    (d) 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 under State law.

(Authority: 20 U.S.C. 1231d, 1441(b), 1441(f))

Sec.  303.602  Meetings.

    (a) The Council must meet, at a minimum, on a quarterly basis, and 
in such places as it determines 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;
    (2) To the extent appropriate, be open and accessible to the general 
public; and
    (3) As needed, provide for interpreters for persons who are deaf and 
other necessary services for Council members and participants. The 
Council may use funds under this part to pay for those services.

(Authority: 20 U.S.C. 1441(c))

Sec.  303.603  Use of funds by the Council.

    (a) Subject to the approval by the Governor, the Council may use 
funds under this part to--
    (1) Conduct hearings and forums;
    (2) 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) 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) Hire staff; and

[[Page 235]]

    (5) Obtain the services of professional, technical, and clerical 
personnel as may be necessary to carry out the performance of its 
functions under part C of the Act.
    (b) Except as provided in paragraph (a) of this section, Council 
members must serve without compensation from funds available under part 
C of the Act.

(Authority: 20 U.S.C. 1441(d))

Sec.  303.604  Functions of the Council--required duties.

    (a) Advising and assisting the lead agency. The Council must advise 
and assist the lead agency in the performance of its responsibilities in 
section 635(a)(10) of the Act, including--
    (1) Identification of sources of fiscal and other support for 
services for early intervention service programs under part C of the 
Act;
    (2) Assignment of financial responsibility to the appropriate 
agency;
    (3) Promotion of methods (including use of intra-agency and 
interagency agreements) for intra-agency and interagency collaboration 
regarding child find under Sec. Sec.  303.115 and 303.302, monitoring 
under Sec.  303.120 and Sec. Sec.  303.700 through 303.708, financial 
responsibility and provision of early intervention services under 
Sec. Sec.  303.202 and 303.511, and transition under Sec.  303.209; and
    (4) Preparation of applications under this part and amendments to 
those applications.
    (b) Advising and assisting on transition. The Council must advise 
and assist the SEA and the lead agency regarding the transition of 
toddlers with disabilities to preschool and other appropriate services.
    (c) Annual report to the Governor and to the Secretary. (1) The 
Council must--
    (i) Prepare and submit an annual report to the Governor and to the 
Secretary on the status of early intervention service programs for 
infants and toddlers with disabilities and their families under part C 
of the Act operated within the State; and
    (ii) Submit the report to the Secretary by a date that the Secretary 
establishes.
    (2) Each annual report must contain the information required by the 
Secretary for the year for which the report is made.

(Authority: 20 U.S.C. 1441(e)(1))

Sec.  303.605  Authorized activities by the Council.

    The Council may carry out the following activities:
    (a) Advise and assist the lead agency and the SEA regarding the 
provision of appropriate services for children with disabilities from 
birth through age five.
    (b) Advise appropriate agencies in the State with respect to the 
integration of services for infants and toddlers with disabilities and 
at-risk infants and toddlers and their families, regardless of whether 
at-risk infants and toddlers are eligible for early intervention 
services in the State.
    (c) Coordinate and collaborate with the State Advisory Council on 
Early Childhood Education and Care for children, as described in section 
642B(b)(1)(A)(i) of the Head Start Act, 42 U.S.C. 9837b(b)(1)(A)(i), if 
applicable, and other State interagency early learning initiatives, as 
appropriate.

(Authority: 20 U.S.C. 1435(a)(10), 1441(e)(2))

   Subpart H_State Monitoring and Enforcement; Federal Monitoring and 
             Enforcement; Reporting; and Allocation of Funds

              Federal and State Monitoring and Enforcement

Sec.  303.700  State monitoring and enforcement.

    (a) The lead agency must--
    (1) Monitor the implementation of this part;
    (2) Make determinations annually about the performance of each EIS 
program using the categories identified in Sec.  303.703(b);
    (3) Enforce this part consistent with Sec.  303.704, using 
appropriate enforcement mechanisms, which must include, if applicable, 
the enforcement mechanisms identified in Sec.  303.704(a)(1) (technical 
assistance) and Sec.  303.704(a)(2) (imposing conditions on the lead 
agency's funding of an EIS program or, if the lead agency does not 
provide part C funds to the

[[Page 236]]

EIS program, an EIS provider), Sec.  303.704(b)(2)(i) (corrective action 
or improvement plan) and Sec.  303.704(b)(2)(iv) (withholding of funds, 
in whole or in part by the lead agency), and Sec.  303.704(c)(2) 
(withholding of funds, in whole or in part by the lead agency); and
    (4) Report annually on the performance of the State and of each EIS 
program under this part as provided in Sec.  303.702.
    (b) The primary focus of the State's monitoring activities must be 
on--
    (1) Improving early intervention results and functional outcomes for 
all infants and toddlers with disabilities; and
    (2) Ensuring that EIS programs meet the program requirements under 
part C of the Act, with a particular emphasis on those requirements that 
are most closely related to improving early intervention results for 
infants and toddlers 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 lead agency must monitor each EIS program 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) Early intervention services in natural environments.
    (2) State exercise of general supervision, including child find, 
effective monitoring, the use of resolution sessions (if the State 
adopts part B due process hearing procedures under Sec.  303.430(d)(2)), 
mediation, and a system of transition services as defined in section 
637(a)(9) of the Act.
    (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 EIS programs and 
providers, 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 Office of Management and Budget under control number 1820-
0578)

(Authority: 20 U.S.C. 1416(a), 1442)

Sec.  303.701  State performance plans and data collection.

    (a) General. Each State must have in place a performance plan that 
meets the requirements described in section 616 of the Act; is approved 
by the Secretary; and includes an evaluation of the State's efforts to 
implement the requirements and purposes of part C of the Act, a 
description of how the State will improve implementation, and measurable 
and rigorous targets for the indicators established by the Secretary 
under the priority areas described in Sec.  303.700(d).
    (b) Review of State performance plan. Each State must review its 
State performance plan at least once every six years and submit any 
amendments to the Secretary.
    (c) Data collection. (1) Each State must collect valid and reliable 
information as needed to report annually to the Secretary under Sec.  
303.702(b)(2) 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 
data for a particular indicator through State monitoring or sampling, 
the State must collect and report data on those indicators for each EIS 
program at least once during the six-year period of a State performance 
plan.
    (3) Nothing in part C of the Act or these regulations may 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 C of the Act.

(Approved by Office of Management and Budget under control number 1820-
0578)

(Authority: 20 U.S.C. 1416(b), 1442)

Sec.  303.702  State use of targets and reporting.

    (a) General. Each State must use the targets established in the 
State's performance plan under Sec.  303.701 and the

[[Page 237]]

priority areas described in Sec.  303.700(d) to analyze the performance 
of each EIS program in implementing part C of the Act.
    (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 EIS 
program 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 the State's performance plan under Sec.  303.701(a), annual 
performance reports under paragraph (b)(2) of this section, and the 
State's annual reports on the performance of each EIS program under 
paragraph (b)(1)(i)(A) of this section available through public means, 
including by posting on the Web site of the lead agency, distribution to 
the media, and distribution to EIS programs.
    (ii) If the State, in meeting the requirements of paragraph 
(b)(1)(i)(A) of this section, collects data through State monitoring or 
sampling, the State must include in its public report on EIS programs 
under paragraph (b)(1)(i)(A) of this section the most recently available 
performance data on each EIS program and the date the data were 
collected.
    (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 Office of Management and Budget under control number 1820-
0578)

(Authority: 20 U.S.C. 1416(b)(2)(B)-(C), 1442)

Sec.  303.703  Secretary's review and determination regarding State 
          performance.

    (a) Review. The Secretary annually reviews the State's performance 
report submitted pursuant to Sec.  303.702(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 C of the Act;
    (ii) Needs assistance in implementing the requirements of part C of 
the Act;
    (iii) Needs intervention in implementing the requirements of part C 
of the Act; or
    (iv) Needs substantial intervention in implementing the requirements 
of part C 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)(i) of this section 
consists of an opportunity to meet with the Assistant Secretary for 
Special Education and Rehabilitative Services to demonstrate why the 
Secretary should not make the determination described in paragraph 
(b)(1)(iii) or (b)(1)(iv) of this section.

(Authority: 20 U.S.C. 1416(d), 1442)

Sec.  303.704  Enforcement.

    (a) Needs assistance. If the Secretary determines, for two 
consecutive years, that a State needs assistance under Sec.  
303.703(b)(1)(ii) in implementing the requirements of part C 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

[[Page 238]]

the Secretary, and other federally funded nonprofit agencies, and 
requires the State to work with appropriate entities. This 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 
areas of concern within a specified period of time;
    (ii) Assistance in identifying and implementing professional 
development, early intervention service provision strategies, and 
methods of early intervention service provision that are based on 
scientifically based research;
    (iii) Designating and using administrators, service coordinators, 
service providers, and other personnel from the EIS program 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) Identifies the State as a high-risk grantee and imposes special 
conditions on the State's grant under part C of the Act.
    (b) Needs intervention. If the Secretary determines, for three or 
more consecutive years, that a State needs intervention under Sec.  
303.703(b)(1)(iii) in implementing the requirements of part C of the 
Act, the following 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 (GEPA), 
20 U.S.C. 1234f, if the Secretary has reason to believe that the State 
cannot correct the problem within one year.
    (iii) Seeks to recover funds under section 452 of GEPA, 20 U.S.C. 
1234a.
    (iv) Withholds, in whole or in part, any further payments to the 
State under part C of the Act.
    (v) 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 C of the Act or that there is a substantial failure to comply with 
any requirement under part C of the Act by the lead agency or an EIS 
program in the State, the Secretary takes one or more of the following 
actions:
    (1) Recovers funds under section 452 of GEPA, 20 U.S.C. 1234a.
    (2) Withholds, in whole or in part, any further payments to the 
State under part C of the Act.
    (3) Refers the case to the Office of Inspector General of 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 Labor 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)-(3), 1416(e)(5), 1442)

Sec.  303.705  Withholding funds.

    (a) Opportunity for hearing. Prior to withholding any funds under 
part C of the Act, the Secretary provides reasonable notice and an 
opportunity for a hearing to the lead agency involved, pursuant to the 
procedures in Sec. Sec.  303.231 through 303.236.
    (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 C of the Act, or both, after the recipient has 
been given reasonable notice and

[[Page 239]]

an opportunity to show cause why future payments or authority to 
obligate funds under part C of the Act should not be suspended.
    (c) Nature of withholding. (1) Limitation. If the Secretary 
determines that it is appropriate to withhold further payments under 
section 616(e)(2) or (e)(3) of the Act, the Secretary may determine--
    (i) That such withholding will be limited to programs or projects, 
or portions of programs or projects, that affected the Secretary's 
determination under Sec.  303.703(b)(1); or
    (ii) That the lead agency must not make further payments of funds 
under part C of the Act to specified State agencies, EIS programs or, if 
the lead agency does not provide part C funds to the EIS program, EIS 
providers that caused or were involved in the Secretary's determination 
under Sec.  303.703(b)(1).
    (2) Withholding until rectified. Until the Secretary is satisfied 
that the condition that caused the initial withholding has been 
substantially rectified--
    (i) Payments to the State under part C of the Act must be withheld 
in whole or in part; and
    (ii) Payments by the lead agency under part C of the Act must be 
limited to State agencies and EIS providers whose actions did not cause 
or were not involved in the Secretary's determination under Sec.  
303.703(b)(1).

(Authority: 20 U.S.C. 1416(e)(4), 1416(e)(6), 1442)

Sec.  303.706  Public attention.

    Whenever a State receives notice that the Secretary is proposing to 
take or is taking an enforcement action pursuant to Sec.  303.704, the 
State must, by means of a public notice, take such measures as may be 
necessary to bring the pendency of an action pursuant to section 616(e) 
of the Act and Sec.  303.704 of the regulations to the attention of the 
public within the State, including by posting the notice on the Web site 
of the lead agency and distributing the notice to the media and to EIS 
programs.

(Authority: 20 U.S.C. 1416(e)(7), 1442)

Sec.  303.707  Rule of construction.

    Nothing in this subpart may be construed to restrict the Secretary 
from utilizing any authority under GEPA, 20 U.S.C. 1221 et seq., the 
regulations in 34 CFR parts 76, 77, and 81, and 2 CFR part 200, to 
monitor and enforce the requirements of the Act, including the 
imposition of special or high-risk conditions under 2 CFR 200.207 and 
3474.5(e).

(Authority: 20 U.S.C. 1416(g), 1442)

[79 FR 76097, Dec. 19, 2014]

Sec.  303.708  State enforcement.

    Nothing in this subpart may be construed to restrict a State from 
utilizing any other authority available to it to monitor and enforce the 
requirements of the Act.

(Authority: 20 U.S.C. 1416(a)(1)(C), 1442)

                      Reports--Program Information

Sec.  303.720  Data requirements--general.

    (a) The lead agency must annually report to the Secretary and to the 
public on the information required by section 618 of the Act at the 
times specified by the Secretary.
    (b) The lead agency must submit the report to the Secretary in the 
manner prescribed by the Secretary.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418, 1435(a)(14), 1442)

Sec.  303.721  Annual report of children served--report requirement.

    (a) For the purposes of the annual report required by section 618 of 
the Act and Sec.  303.720, the lead agency must count and report the 
number of infants and toddlers receiving early intervention services on 
any date between October 1 and December 1 of each year. The report must 
include--
    (1) The number and percentage of infants and toddlers with 
disabilities in the State, by race, gender, and ethnicity, who are 
receiving early intervention services (and include in this number any 
children reported to it by tribes, tribal organizations, and consortia 
under Sec.  303.731(e)(1));
    (2) The number and percentage of infants and toddlers with 
disabilities, by race, gender, and ethnicity, who, from

[[Page 240]]

birth through age two, stopped receiving early intervention services 
because of program completion or for other reasons; and
    (3) The number and percentage of at-risk infants and toddlers (as 
defined in section 632(1) of the Act), by race and ethnicity, who are 
receiving early intervention services under part C of the Act.
    (b) If a State adopts the option under section 635(c) of the Act and 
Sec.  303.211 to make services under this part available to children 
ages three and older, the State must submit to the Secretary a report on 
the number and percentage of children with disabilities who are eligible 
for services under section 619 of the Act but whose parents choose for 
those children to continue to receive early intervention services.
    (c) The number of due process complaints filed under section 615 of 
the Act, the number of hearings conducted and the number of mediations 
held, and the number of settlement agreements reached through such 
mediations.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(a)(1)(B), (C), (F), (G), and (H), 
1435(a)(14), 1435(c)(3), 1442)

Sec.  303.722  Data reporting.

    (a) Protection of identifiable data. The data described in section 
618(a) of the Act and in Sec.  303.721 must be publicly reported by each 
State in a manner that does not result in disclosure of data 
identifiable to individual children.
    (b) Sampling. The Secretary may permit States and outlying areas to 
obtain data in section 618(a) of the Act through sampling.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(b), 1435(a)(14), 1442)

Sec.  303.723  Annual report of children served--certification.

    The lead agency must include in its report a certification signed by 
an authorized official of the agency that the information provided under 
Sec.  303.721 is an accurate and unduplicated count of infants and 
toddlers with disabilities receiving early intervention services.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 1442)

Sec.  303.724  Annual report of children served--other responsibilities 
          of the lead agency.

    In addition to meeting the requirements of Sec. Sec.  303.721 
through 303.723, the lead agency must conduct its own child count or use 
EIS providers to complete its child count. If the lead agency uses EIS 
providers to complete its child count, then the lead agency must--
    (a) Establish procedures to be used by EIS providers in counting the 
number of children with disabilities receiving early intervention 
services;
    (b) Establish dates by which those EIS providers must report to the 
lead agency to ensure that the State complies with Sec.  303.721(a);
    (c) Obtain certification from each EIS provider that an unduplicated 
and accurate count has been made;
    (d) Aggregate the data from the count obtained from each EIS 
provider and prepare the report required under Sec. Sec.  303.721 
through 303.723; and
    (e) Ensure that documentation is maintained to enable the State and 
the Secretary to audit the accuracy of the count.

(Approved by Office of Management and Budget under control number 1820-
0557)

(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 1442)

                           Allocation of Funds

Sec.  303.730  Formula for State allocations.

    (a) Reservation of funds for outlying areas. From the sums 
appropriated to carry out part C of the Act for any fiscal year, the 
Secretary may reserve not more than one percent for payments to American 
Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the 
United States Virgin Islands in accordance with their respective needs 
for assistance under part C of the Act.
    (b) Consolidation of funds. The provisions of the Omnibus 
Territories Act of

[[Page 241]]

1977, Pub. L. 95-134, permitting the consolidation of grants to the 
outlying areas, do not apply to the funds provided under part C of the 
Act.

(Authority: 20 U.S.C. 1443(a))

Sec.  303.731  Payments to Indians.

    (a) General. (1) The Secretary makes payments to the Secretary of 
the Interior under part C of the Act, which the Secretary of the 
Interior must distribute to tribes or tribal organizations (as defined 
under section 4 of the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450b), or consortia of those 
entities, for the coordination of assistance in the provision of early 
intervention services by 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 
Secretary of the Interior.
    (2) A tribe, tribal organization, or consortium of those entities is 
eligible to receive a payment under this section if the tribe, tribal 
organization, or consortium of those entities is on a reservation that 
is served by an elementary or secondary school operated or funded by the 
Secretary of the Interior.
    (3) The amount of the payment to the Secretary of the Interior under 
this section for any fiscal year is 1.25 percent of the aggregate amount 
available to all States under part C of the Act.
    (b) Allocation. For each fiscal year, the Secretary of the Interior 
must distribute the entire payment received under paragraph (a)(1) of 
this section by providing to each tribe, tribal organization, or 
consortium an amount based on the number of infants and toddlers 
residing on the reservation, as determined annually, divided by the 
total number of those children served by all tribes, tribal 
organizations, or consortia.
    (c) Information. To receive a payment under this section, the tribe, 
tribal organization, or consortium must submit the appropriate 
information to the Secretary of the Interior to determine the amounts to 
be distributed under paragraph (b) of this section.
    (d) Use of funds. (1) The funds received by a tribe, tribal 
organization, or consortium must be used to assist States in child find, 
screening, and other procedures for the early identification of Indian 
children under three years of age and for parent training. The funds 
also may be used to provide early intervention services in accordance 
with part C of the Act. These activities may be carried out directly or 
through contracts or cooperative agreements with the Bureau of Indian 
Education, local educational agencies, and other public or private 
nonprofit organizations. The tribe, tribal organization, or consortium 
is encouraged to involve Indian parents in the development and 
implementation of these activities.
    (2) The tribe, tribal organization, or consortium must, as 
appropriate, make referrals to local, State, or Federal entities for the 
provision of services or further diagnosis.
    (e) Reports. (1) To be eligible to receive a payment under paragraph 
(b) of this section, a tribe, tribal organization, or consortium must 
make a biennial report to the Secretary of the Interior of activities 
undertaken under this section, including the number of contracts and 
cooperative agreements entered into, the number of infants and toddlers 
contacted and receiving services for each year, and the estimated number 
of infants and toddlers needing services during the two years following 
the year in which the report is made. This report must include an 
assurance that the tribe, tribal organization, or consortium has 
provided the lead agency in the State child find information (including 
the names and dates of birth and parent contact information) for infants 
or toddlers with disabilities who are included in the report in order to 
meet the child find coordination and child count requirements in 
sections 618 and 643 of the Act.
    (2) The Secretary of the Interior must provide a summary of this 
information (including confirmation that each tribe, tribal 
organization, or consortium has provided to the Secretary of the 
Interior the assurance required under paragraph (e)(1) of this section) 
on a biennial basis to the Secretary along with such other information 
as

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required of the Secretary of the Interior under part C of the Act. The 
Secretary may require additional information from the Secretary of the 
Interior.
    (3) Within 90 days after the end of each fiscal year the Secretary 
of the Interior must provide the Secretary with a report on the payments 
distributed under this section. The report must include--
    (i) The name of each tribe, tribal organization, or combination of 
those entities that received a payment for the fiscal year;
    (ii) The amount of each payment; and
    (iii) The date of each payment.
    (f) Prohibited uses of funds. None of the funds 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. 1443(b))

Sec.  303.732  State allotments.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, for each fiscal year, from the aggregate amount of funds 
available under part C of the Act 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) Minimum allocations. Except as provided in paragraph (c) of this 
section, no State may receive less than 0.5 percent of the aggregate 
amount available under this section or $500,000, whichever is greater.
    (c) Ratable reduction. (1) If the sums made available under part C 
of the Act for any fiscal year are insufficient to pay the full amount 
that all States are eligible to receive under this section for that 
year, the Secretary ratably reduces the allotments to those States for 
such year.
    (2) If additional funds become available for making payments under 
this section, allotments that were reduced under paragraph (c)(1) of 
this section will be increased on the same basis the allotments were 
reduced.
    (d) Definitions. For the purpose of allotting funds to the States 
under 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.  303.731, to the 
outlying areas under Sec.  303.730, and any amount to be reserved for 
State incentive grants under Sec.  303.734;
    (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.  303.733  Reallotment of funds.

    If a State (as defined in Sec.  303.35) elects not to receive its 
allotment, the Secretary reallots those funds among the remaining States 
(as defined in Sec.  303.732(d)(3)), in accordance with Sec.  
303.732(c)(2).

(Authority: 20 U.S.C. 1443(d))

Sec.  303.734  Reservation for State incentive grants.

    (a) General. For any fiscal year for which the amount appropriated 
pursuant to the authorization of appropriations under section 644 of the 
Act exceeds $460,000,000, the Secretary reserves 15 percent of the 
appropriated amount exceeding $460,000,000 to provide grants to States 
that are carrying out the policy described in section 635(c) of the Act 
and in Sec.  303.211 (including a State that makes part C services 
available under Sec.  303.211(a)(2)), in order to facilitate the 
implementation of that policy.
    (b) Amount of grant. (1) General. Notwithstanding section 643(c)(2) 
and (c)(3) of the Act, the Secretary provides a grant to each State 
under this section in an amount that bears the same ratio to the amount 
reserved under paragraph (a) of this section as the number of infants 
and toddlers in the State bears to the number of infants and toddlers in 
all States receiving grants under paragraph (a) of this section.
    (2) Maximum amount. No State may receive a grant under paragraph (a) 
of this section for any fiscal year in an amount that is

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greater than 20 percent of the amount reserved under that paragraph for 
the fiscal year.
    (c) Carryover of amounts pursuant to section 643(e)(3) of the Act. 
(1) First succeeding fiscal year. Pursuant to section 421(b) of GEPA, 20 
U.S.C. 1221 et seq., amounts under a grant provided under paragraph (a) 
of this section that are not obligated and expended prior to the 
beginning of the first fiscal year succeeding the fiscal year for which 
those amounts were appropriated must remain available for obligation and 
expenditure during the first succeeding fiscal year.
    (2) Second succeeding fiscal year. Amounts under a grant provided 
under paragraph (a) of this section that are not obligated and expended 
prior to the beginning of the second fiscal year succeeding the fiscal 
year for which those amounts were appropriated must be returned to the 
Secretary and used to make grants to States under section 633 of the Act 
(from their allotments identified in Sec. Sec.  303.731 through 303.733) 
during the second succeeding fiscal year.

(Authority: 20 U.S.C. 1443)



     Sec. Appendix A to Part 303--Index for IDEA Part C Regulations

ABILITY TO PAY (State definition)  303.521(a)(3).
ABROGATION OF STATE SOVEREIGN      303.103.
 IMMUNITY.
ABUSE or NEGLECT:
      At-risk infant or    303.5.
     toddler (Definition).
      Referral of          303.303(b).
     specific at-risk infants and
     toddlers.
ACCESS (TO); ACCESSING (A-O):
      Access rights (of    303.405.
     parents).
      Culturally           303.227(b).
     competent services
     (Traditionally underserved
     groups).
      Early Intervention   303.403(b).
     records (definition).
      Early Intervention   303.34(b)(1).
     services.
      See also ``Service
     Coordination (Services)''.
ACCESS (TO); ACCESSING (P-Z):
      Personally           303.415(d).
     identifiable information
     (Employees with access).
      Private insurance    303.520(b)(1)(i).
     (Parental consent prior to
     using or accessing).
      Public Insurance     303.520(a).
     (Written notification prior
     to using or accessing.
      Records (Keep and    303.224(b).
     afford access to the
     Secretary).
      Safeguards           303.415(d).
     (Employees with access to
     personally identifiable
     information).
ACCESSIBLE; ACCESSIBILITY:
      Central directory    303.117.
     (Accessible to general
     public).
      Individualized       303.342(d).
     family service plan (IFSP)
     meetings (Accessibility and
     convenience of).
      See also             303.602(b)(2).
     ``Convenience (of hearings;
     meetings)''.
      Meetings (Of
     Council).
ACCESSIBILITY STANDARDS
 (Construction or Alteration):
      Americans with       303.104(b)(1).
     Disabilities Act
     Accessibility Guidelines for
     Buildings and Facilities.
      Uniform Federal      303.104(b)(2).
     Accessibility Standards.
ACQUISITION OF EQUIPMENT
 (Construction):
      Appropriate          303.104.
     equipment and construction
     or alteration of facilities.
      See also
     ``Accessibility standards''.
ACT:
      Definition           303.4.
     (Individuals with
     Disabilities Education Act
     (IDEA)).
ADAPTIVE DEVELOPMENT:
      Developmental delay  303.21(a)(1)(v).
     in.
      Early Intervention   303.13(a)(4)(v).
     services (Definition).
        ○ See also in          303.13(b)(8).
         ``Occupational therapy''.
      Evaluation and       303.321(b)(3).
     assessment (Of the child).
      Individualized       303.344(a).
     family service plan (IFSP)
     content (Child's status).
      Infant or toddler    303.21(a)(1)(v).
     with a disability
     (Definition).
ADVOCATE (Noun):
      Individualized       303.343(a)(1)(iii).
     family service plan (IFSP)
     Team.
AGGREGATE AMOUNT:

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      Payments to Indians  303.731(a)(3).
      State allotments     303.732(d)(1).
     (Definition).
        ○ See also ``State     303.732(a),(b).
         allotments''.
AMENDMENTS (To a State's
 application):
      Functions of the     303.604(a)(4).
     Council (Advise and assist
     lead agency with).
      Modifications        303.228(c)(1).
     required by the Secretary.
AMERICANS WITH DISABILITIES ACT:
      Civil Action.......  303.448(e).
APPLICABLE REGULATIONS...........  303.3.
APPLICATION:
      See ``State
     Application''.
ASSESSMENT:
      Assessment of child  303.321(a)(2)(ii).
     and family (Definition).
      Early Intervention   303.13(b)(6)(i), (b)(7)(i),
     services (Types of services).  (b)(8)(i), (b)(9)(i), (b)(10)(i)-
                                    (b)(10)(ii), (b)(13)(ii),
                                    (b)(17)(i).
      Procedures for       303.321(c)(1).
     assessment of the child.
      Procedures for       303.321(c)(2).
     assessment of the family.
      Voluntary on part    303.321(c)(2)(i).
     of the family.
      See also
     ``Evaluation (And
     Assessment)''.
ASSISTANTS (In personnel
 standards):
      Use of.............  303.119(c).
      See also
     ``Paraprofessionals''.
ASSISTIVE and ORTHOTIC DEVICES:
      Occupational         303.13(b)(8)(ii).
     therapy (Fabrication of).
ASSISTIVE TECHNOLOGY (AT):
      Assistive            303.13(b)(1)(i).
     Technology (AT) device.
      Assistive            303.13(b)(1)(ii).
     Technology (AT) service.
AT NO COST:
      Early Intervention   303.13(a)(3).
     services.
      Initial copy of      303.409(c).
     Early Intervention record.
      Parental rights at   303.444(c)(2).
     hearings (Record of hearing).
      System of payments   303.521(a)(4)(i)-(a)(4)(ii).
     and fees.
AT-RISK:
      Annual report of     303.721(a)(3).
     children served.
      Audiology services   303.13(b)(2)(i).
     (At-risk criteria).
      Council (Authorized  303.605(b).
     activities).
      Definition (Infant   303.5.
     or toddler).
      Description of       303.204(b).
     Early Intervention services
     to.
      Infant or toddler    303.21(b).
     with a disability.
      Permissive use of    303.501(e).
     funds by lead agency.
      Referral of          303.303(b).
     specific at-risk infants and
     toddlers.
      State's definition   303.204(a).
     of (Application
     requirements).
AUDIOLOGY SERVICES:
      Definition.........  303.13(b)(2).
      Qualified personnel  303.13(c)(1).
     (Audiologists).
AUTHORIZED ACTIVITIES:
      Council............  303.605.
AWARD:
      Eligible recipients  303.2(a).
      See also
     ``Grants''.
BIE:
      See ``Bureau of
     Indian Education''.
BLINDNESS; BLIND:
      Native language....  303.25(b).
      Special educators    303.13(c)(11).
     (Teachers of children with
     visual impairments
     (Including blindness)).
BRAILLE:
      Native language....  303.25(b).
BRAIN HEMORRAGE:
      At-Risk infant or    303.5.
     toddler (Definition)..
BUREAU OF INDIAN EDUCATION (BIE):
      Bureau of Indian     303.23(c).
     Education (BIE)-funded
     schools.
      Council Composition  303.601(c).
     (Other members selected by
     the Governor).

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      Payments to Indians  303.731(d).
BUSINESS DAY (In Individuals with
 Disabilities Education Act
 (IDEA) Part B):
      Resolution process   303.442(e).
     (Agreement review period).
      Hearing rights.....  303.444(a)(3), (b)(1).
CALENDAR DAY:
      See ``Day''          303.9.
     (Definition).
CHILD ABUSE, PREVENTION, AND
 TREATMENT ACT (CAPTA):
      Child protection     303.302(c)(1)(ii)(G).
     and welfare programs under
     CAPTA.
CASE MANAGEMENT:
      In ``Service         303.34.
     coordination services''.
      Medicaid reference   303.34(c).
     to.
CENTRAL DIRECTORY:
      Public awareness     303.301(b)(3).
     program.
      State system         303.117.
     requirement.
CERTIFICATION (In
 Administration):
      Annual report of     303.723.
     children served.
      Annual report of     303.724(c).
     children served (Other
     responsibilities of the lead
     agency).
      Public               303.208(a).
     participation application.
      Regarding financial  303.202.
     responsibility.
      State application    303.200(a).
     requirement.
CERTIFICATION (Of personnel):
      Personnel            303.119(b).
     qualification standards.
      Qualified personnel  303.31.
     (Definition).
    CHILD (Definition)...........  303.6.
CHILD ABUSE, PREVENTION, AND
 TREATMENT ACT:
      See ``CAPTA''.
CHILD COUNT:
      Accurate and         303.723.
     unduplicated count (Annual
     report of children served--
     certification).
      Count and report     303.721(a).
     (Annual report of children
     served--report requirement).
      Other
     responsibilities of lead
     agency:
        ○ Aggregate count      303.724(d).
         data.
        ○ Ensure               303.724(e).
         documentation of count
         is maintained.
        ○ Obtain               303.724(c).
         certification (Of
         unduplicated and
         accurate count).
      Prohibited uses of   303.731(f).
     funds (By Secretary of the
     Interior).
CHILD'S ELIGIBILITY:
      Evaluation and       303.320(a)(2)(i).
     assessment of child.
      No single procedure  303.321(b).
     as sole criterion.
      Not eligible         303.322.
     (Agency determination).
      Parental consent     303.420(a)(1)-(2).
     before determining a child's
     eligibility.
      Status of child      303.430(e)(2).
     during pendency of a due
     process complaint.
      Transition to        303.209(b)(1).
     preschool.
CHILD FIND (A-E):
      At public expense    303.521(b)(1).
     (Functions not subject to
     fees).
      Comprehensive child
     find system:
        ○ State system         303.115.
         requirement.
        ○ Substantive          303.302.
         requirement.
      Consistent with      303.302(a)(1).
     Part B.
      Content of an        303.344(h)(2)(iii).
     individualized family
     service plan (IFSP)
     (Transmission of child find
     information).
      Coordination with    303.302(c)(1)-(c)(2).
     other Federal and State
     efforts.
CHILD FIND (F-PO):
      Financial            303.511(a).
     responsibility for.
      Functions of the     303.604(a)(3).
     Council (Intra-agency and
     interagency collaboration).
      Payments to Indians  303.731(d).
     (Use of funds).
      Payor of last        303.510(b).
     resort (Interim payments and
     reimbursement).
CHILD FIND (PR-Z):
      Primary referral     303.303(c).
     sources.

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      Public awareness     303.301(b).
     program (Information to be
     provided to parents).
      Referral procedures  303.303(a)(1).
     (In general).
      Scope of child find  303.302(b).
      Screening            303.320.
     procedures.
      State monitoring     303.700(d)(2).
     and enforcement.
      State system         303.115.
     requirement.
CHILD WITH A DISABILITY:
      Composition of the   303.601(a)(1)(ii).
     Council.
      Infant or toddler    303.21(c).
     with a disability
     (Definition).
      State option to      303.211(e)(1).
     make Early Intervention
     services available to
     children three and older
     (Rules of construction).
CHROMOSOMAL ABNORMALITIES:
      Diagnosed physical   303.21(a)(2)(ii).
     or mental condition.
CIVIL ACTION (Part B):
      Civil action (In     303.448(a).
     general).
      Finality of review   303.446(d).
     decision.
      Rule of              303.448(e).
     construction.
      Time limitation....  303.448(b).
CIVIL ACTION (Part C)............  303.438.
CLEFT PALATE; CLUB FOOT (Surgery
 for):
      Health services      303.16(c)(1)(i).
     (Not included).
COCHLEAR IMPLANT:
      Assistive            303.13(b)(1)(i).
     technology device (Not
     included).
      Health services      303.16(c)(1)(iii).
     (Not included).
COGNITIVE DEVELOPMENT:
      Content of an        303.344(a).
     individualized family
     service plan (IFSP) (Child's
     status).
      Developmental delay  303.21(a)(1)(i).
     in.
      Early Intervention   303.13(a)(4)(ii).
     services (Definition).
      Evaluation and       303.321(b)(3).
     assessment (Of child).
      Infant or toddler    303.21(a)(1)(i).
     with a disability
     (Definition).
COLOSTOMY COLLECTION BAGS:
      Health services      303.16(b)(1).
     (Included).
COMMINGLING:
      Prohibition against  303.225(a)(1).
COMMUNICATION DEVELOPMENT:
      Content of           303.344(a).
     individualized family
     service plan (IFSP) (Child's
     status).
      Developmental delay  303.21(a)(1)(iii).
     in.
      Early Intervention   303.13(a)(4)(iii).
     services (Definition).
      Evaluation and       303.321(b)(3).
     assessment (Of child).
      Infant or toddler    303.21(a)(1)(iii).
     with a disability
     (Definition).
COMPLAINTS:
      Annual report of     303.721(c).
     children served (Number of
     due process complaints).
      Confidentiality      303.401(b)(2).
     procedures.
      Minimum State        303.433(c).
     complaint procedures
     (Comparison with due process
     complaints).
        ○ See also ``State
         Complaint Procedures''.
      State dispute
     resolution options:
        ○ Due process hearing  303.430(d).
         procedures.
        ○ In general.........  303.430(a).
        ○ State complaint      303.430(c).
         procedures.
COMPLIANCE:
      Compliance           303.704(b)(2)(ii).
     agreement (Enforcement).
      Compliance with      303.104(b).
     certain regulations
     (Construction or alteration
     of facilities).
      Corrective action    303.704(b)(2)(i).
     plans to achieve compliance
     (Enforcement).
      Modifications of     303.228(c).
     State application required
     by the Secretary (For
     compliance).
      Reports and records  303.224(b).
     (To ensure compliance with
     Part C).
COMPREHENSIVE SYSTEM OF PERSONNEL  303.118.
 DEVELOPMENT (CSPD).

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CONFIDENTIALITY (A-D):
      Access rights......  303.405.
      Confidentiality and  303.401(a)-(c).
     opportunity to examine
     records.
      Consent prior to     303.414.
     disclosure or use.
      Definitions:
        ○ Destruction........  303.403(a).
        ○ Early Intervention   303.403(b).
         records.
        ○ Participating        303.403(c).
         agency.
      Destruction of       303.416.
     information.
CONFIDENTIALITY (E-N):
      Enforcement by lead  303.417.
     agency.
      Family Educational   303.401(b).
     Rights and Privacy Act
     (FERPA).
      Fees for records...  303.409.
      Hearing procedures.  303.413.
      List of types and    303.408.
     locations of information.
      Notice to parents..  303.404.
CONFIDENTIALITY (O-Z):
      Opportunity for a    303.411.
     hearing.
      Parental authority   303.405(c).
     to inspect and review
     records.
      Record of access...  303.406.
      Records on more      303.407.
     than one child.
      Result of hearing..  303.412.
      Safeguards.........  303.415.
      Secretary's action   303.402.
     (To protect).
CONGENITAL DISORDERS:
      Diagnosed physical   303.21(a)(2)(ii).
     or mental condition (Infant
     or toddler with a
     disability).
CONGENITAL HEART AILMENTS:
      Health services      303.16(c)(1)(ii).
     (Not included).
CONGENITAL INFECTIONS:
      Diagnosed physical   303.21(a)(2)(ii).
     or mental condition (Infant
     or toddler with a
     disability).
CONSENT (A-H):
      Continue Early       303.501(d).
     Intervention services from
     age three to kindergarten,
     with consent.
      Definition.........  303.7.
      Due process          303.441(d)(3)(i).
     complaint (Sufficiency to
     amend).
      Early Intervention   303.420(a)(3).
     services.
      Early Intervention   303.501(d).
     services in lieu of Free
     Appropriate Public Education
     (FAPE) from age three to
     kindergarten.
      Evaluation and       303.420(a)(2).
     assessment of a child.
      Granting of consent  303.7(c)(1).
     is voluntary.
      Hearing rights       303.444(b)(2).
     (Additional disclosure).
CONSENT (I-Q):
      Individualized       303.20(c).
     family service plan (IFSP)
     (Definition).
      Insurance:
        ○ Private insurance..  303.520(b).
        ○ Public insurance...  303.520(a).
      Interim              303.345(a).
     individualized family
     service plan (IFSP).
      Lead agency          303.400(a).
     responsible for procedural
     safeguards (Consent and
     notice, etc.).
      Lead agency role if  303.420(b).
     consent not given.
      Parental consent     303.420.
     and ability to decline
     services.
      Permissive use of    303.501(d).
     funds by lead agency
     (Continue Early Intervention
     services in lieu of Free
     Appropriate Public Education
     (FAPE)).
      Prior to disclosure  303.414.
     or use of personally
     identifiable information.
      Provision of Early   303.345(a).
     Intervention services before
     evaluation and assessment
     are completed.
CONSENT (R-Z):
      Required before:
        ○ Administering        303.420(a)(1).
         screening procedures.
        ○ Conducting an        303.420(a)(2).
         evaluation and
         assessment of a child.
        ○ Providing Early      303.420(a)(3).
         Intervention services.

[[Page 248]]

 
        ○ Using private        303.520(b).
         insurance.
      Revocation of        303.7(c)(2).
     consent (Not retroactive).
      State option for
     Early Intervention services
     after age three:
        ○ Available funds for  303.211(d).
        ○ Continuation of      303.211(b)(5).
         Early Intervention
         services.
        ○ Referral to Part C   303.211(b)(7).
         (Trauma due to exposure
         to family violence,
         under age three).
      Status of child      303.430(e).
     during due process complaint.
      Timelines for        303.310(b)(2).
     screening, initial
     evaluation, or assessments.
CONSTRUCTION or ALTERATION (Of
 facilities):
      Compliance with      303.104(b).
     certain regulations.
      Use of funds for...  303.104(a).
CONSTRUCTION CLAUSES (A-M):
      Civil action         303.448(e).
     (Nothing restricts rights,
     except that procedures under
     Sec.  Sec.   303.440 and
     303.446 must be exhausted
     before filing a civil
     action).
      Hearing decisions--
     Nothing:
        ○ Affects the right    303.445(b).
         of a parent to appeal a
         hearing decision.
        ○ Precludes a hearing  303.445(a)(3).
         officer from requiring
         compliance with Sec.
         Sec.   303.440-449.
        ○ Precludes a parent   303.445(c).
         from filing a separate
         due process complaint.
      Indian tribe         303.19(c).
     (Nothing requires services
     or funding to a State Indian
     Tribe not in the Federal
     Register list pursuant to
     the Federally Recognized
     Indian Tribe List Act of
     1994).
CONSTRUCTION CLAUSES (N-Z):
      Nationwide database  303.701(c)(3).
     of personally identifiable
     information on individuals
     involved in studies, etc.
     (Nothing construed to
     authorize).
      Non-reduction of     303.510(c).
     benefits (Payor of last
     resort).
      Personnel standards  303.119(c).
     (Nothing prohibits the use
     of paraprofessionals and
     assistants).
      Secretary's          303.707.
     authority to monitor
     enforcement of General
     Education Provisions Act
     (GEPA).
      State option to
     make services available
     after age three:
        ○ If Early             303.211(e)(1).
         Intervention services
         provided to a child
         eligible under Sec.
         619, Free Appropriate
         Public Education (FAPE)
         not required.
        ○ Service provider     303.211(e)(2).
         under Part C not
         required to provide Free
         Appropriate Public
         Education (FAPE).
CONSULTATION:
      By physicians        303.16(b)(2).
     (Health services).
      On child             303.13(b)(10)(iv).
     development (Psychological
     services).
CONTENT OF INDIVIDUALIZED FAMILY   303.344.
 SERVICE PLAN (IFSP).
      See also
     ``Individualized Family
     Service Plan (IFSP)
     Content''.
CONTRACTS:
      Certification        303.202.
     regarding financial
     responsibility (Lead
     agency's contracts with
     Early Intervention service
     providers).
      Payments to
     Indians:
        ○ Biennial report to   303.731(e)(1).
         Secretary of the
         Interior (Number of
         contracts, etc.).
        ○ Use of funds for     303.731(d)(1).
         Early Intervention
         services through
         contracts or cooperative
         agreements.
      Mediation (Meeting   303.431(d)(1).
     to encourage).
      Parent (Definition)  303.27(a)(2).
      Policy for           303.121.
     contracting for services.
CONVENIENCE (OF HEARINGS;
 MEETINGS):
      Convenience of       303.437.
     hearings and timelines (Part
     C).

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      Individualized       303.342(d).
     family service plan (IFSP)
     meetings (Accessibility and
     convenience of).
      Timelines and        303.447.
     convenience of hearings and
     reviews (Part B).
      See also
     ``Accessible;
     Accessibility''.
COORDINATION (A-O):
      Child find           303.302(c)(1).
     (Coordination of lead
     agency's efforts with the
     assistance of Council).
      Establishing         303.511(e).
     financial responsibility
     for, and methods of,
     ensuring services
     (Additional components).
      Head Start, Early    303.210(a).
     Head Start, early education,
     and child care.
      Individualized
     family service plan (IFSP):
        ○ Content of (Service  303.344(g)(1).
         coordinator).
        ○ Statewide system     303.114.
         requirement (Including
         service coordination
         services).
      Lead agency role in  303.120(b), (f).
     interagency coordination,
     etc..
      Methods for          303.511.
     financial interagency
     coordination.
COORDINATION (P-Z):
      Payor of last        303.500(a)(2).
     resort (Coordination of
     funding resources).
      Purpose of Early     303.1(b).
     Intervention program
     (Facilitate coordination of
     payment).
      Service              303.13(b)(11).
     coordination services (In
     definition of ``Early
     Intervention services'').
        ○ See ``Service        303.34.
         coordination services
         (Case management).''.
        ○ See also ``Service
         Coordination''.
      Services before      303.345(b)(1).
     evaluations and assessments
     completed (Service
     coordinator).
      Statewide system     303.203(b).
     and description of services.
      Use of funds and     303.500(a)(2).
     payor of last resort
     (Coordination of funding
     resources).
CO-PAYMENTS; CO-PAYS:
      Policies related to
     use of insurance for payment
     for services:
        ○ Private insurance..  303.520(b).
        ○ Public insurance...  303.520(a).
      System of payments   303.521(a)(6).
     and fees.
      See also ``System
     of Payments''; ``Fees''.
COST PARTICIPATION FEES:
      System of payments   303.521(a)(1).
     and fees.
COUNCIL:
      Definition.........  303.8.
      See ``State          303.600-303.605.
     Interagency Coordinating
     Council''.
CRITERIA:
      Assessment of the    303.321(c).
     child and family.
      At-risk criteria...  303.5, 303.204.
      Content of           303.344(c).
     individualized family
     service plan (IFSP) (Results
     or outcomes).
      Early Intervention   303.13(b)(2)(i).
     services (Audiology
     services).
      Early Intervention   303.13(d).
     services (Other services).
      State definition of  303.111(b).
     developmental delay.
      Surrogate parents    303.422(d).
     (Selection of).
CSPD (COMPREHENSIVE SYSTEM OF      303.118.
 PERSONNEL DEVELOPMENT).
CULTURALLY COMPETENT SERVICES....  303.227(b).
CURRICULUM PLANNING:
      In ``Early           303.13(b)(14)(ii).
     Intervention services''
     definition (Special
     instruction).
DATA (A-H):
      Annual report of     303.724(d).
     children served (Aggregate
     data).
      Confidentiality      303.402.
     (Personally identifiable
     data).
      Data collection      303.701(c)(3).
     (Construction clause).
      Data collection      303.124.
     (Statewide system).
      Data reporting:
        ○ Protection of        303.722(a).
         identifiable data.

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        ○ Sampling...........  303.722(b).
      Data requirements    303.720.
     (In general).
      Exit data            303.416(b).
     (Destruction of information).
DATA (I-Z):
      Infants and          303.732(d)(2).
     toddlers (Definition).
      Insufficient data    303.702(b)(3).
     (State use of targets and
     reporting).
      State performance    303.701.
     plans and data collection.
        ○ Construction clause  303.701(c)(3).
         (Nationwide data base).
        ○ Data collection....  303.701(c).
        ○ Data on specific     303.701(c)(2).
         indicators.
      State use of         303.702(b)(1)(ii).
     targets and reporting..
      Statistically        303.702(b)(3).
     reliable information
     (Insufficient data).
DAY:
      Definition.........  303.9.
      See also
     ``Timelines''
DEAF; DEAFNESS:
      Council Meetings     303.602(b)(3).
     (Interpreters for).
      Early Intervention   303.13(c)(11).
     services (Special educators).
      Native language....  303.25(b).
DEFINITIONS (A-D):
      Ability to pay       303.521(a)(3).
     (State's definition).
      Act................  303.4.
      Aggregate amount     303.732(d)(1).
     (State allotments).
      Assessment of the    303.321(a)(2)(ii), 303.321(c)(1)-
     child and the family.          (c)(2).
      Assistive            303.13(b)(1).
     technology devices and
     services.
      Audiology services.  303.13(b)(2).
      Child..............  303.6.
      Consent............  303.7.
      Council............  303.8.
      Day................  303.9.
      Destruction (Of a    303.403(a).
     record).
      Developmental delay  303.10.
      Duration (Content    303.344(d)(2)(iv).
     of an individualized family
     service plan (IFSP)).
DEFINITIONS (E-H):
      Early Intervention   303.3(b)(2), 303.403(b).
     record.
      Early Intervention   303.11.
     service program.
      Early Intervention   303.12.
     service provider.
      Early Intervention   303.13.
     services.
      Education records..  303.3(b)(2).
      Elementary school..  303.14.
      Evaluation.........  303.321(a)(2)(i).
      Family training,     303.13(b)(3).
     counseling, and home visits.
      Free Appropriate     303.15.
     Public Education (FAPE).
      Frequency and        303.344(d)(2)(i).
     intensity (Content of an
     individualized family
     service plan (IFSP)).
      Health services....  303.16.
      Homeless children..  303.17.
DEFINITIONS (I-M):
      Impartial..........  303.435(b).
      Include; including.  303.18.
      Indian; Indian       303.19.
     tribe.
      Individualized       303.20.
     family service plan (IFSP).
      Infants and          303.732(d)(2).
     toddlers (State allotments).
      Infant or toddler    303.21.
     with a disability.
      Lead agency........  303.22.
      Length (Content of   303.344(d)(2)(iii).
     an individualized family
     service plan (IFSP)).
      Local educational    303.23.
     agency (LEA).
      Location (Content    303.344(d)(3).
     of an individualized family
     service plan (IFSP)).
      Medical services...  303.13(b)(5).
      Method (Content of   303.344(d)(2)(ii).
     an individualized family
     service plan (IFSP)).
      Multidisciplinary..  303.24.
DEFINITIONS (N-R):

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      Native language....  303.25.
      Natural              303.26.
     environments.
      Nursing services...  303.13(b)(6).
      Nutrition services.  303.13(b)(7).
      Occupational         303.13(b)(8).
     therapy.
      Parent.............  303.27.
      Participating        303.403(c).
     agency (Personally
     identifiable information).
      Parent training and  303.28.
     information center.
      Personally           303.29, 303.401.
     identifiable information.
      Physical Therapy...  303.13(b)(9).
      Primary referral     303.303(c).
     sources.
      Psychological        303.13(b)(10).
     services.
      Public agency......  303.30.
      Qualified personnel  303.31.
DEFINITIONS (S-Z):
      Scientifically       303.32.
     based research.
      Screening            303.320(b).
     procedures.
      Secretary..........  303.33.
      Service              303.34.
     coordination services (Case
     management).
        ○ See also ``Early     303.13(b)(11).
         Intervention services''
         definition.
      Sign language and    303.13(b)(12).
     cued language.
      Social work          303.13(b)(13).
     services.
      Special instruction  303.13(b)(14).
      Speech-language      303.13(b)(15).
     pathology services.
      State..............  303.35.
      State (State         303.732(d)(3).
     allotments).
      State educational    303.36.
     agency (SEA).
      Transportation and   303.13(b)(16).
     related costs.
      Vision services....  303.13(b)(17).
      Ward of the State..  303.37.
DEPARTMENT PROCEDURES:
      State application    303.231-303.236.
     and assurances.
DEVELOPMENTAL DELAY:
      At-risk infant or    303.5.
     toddler (Definition).
      Definition.........  303.10.
      Infant or toddler    303.21(a)(1), (a)(2)(i).
     with a disability
     (Definition).
      Purpose of the       303.1(e).
     Early Intervention program.
      Statewide system     303.203(c).
     (State's rigorous
     definition).
      State definition...  303.111.
DEVELOPMENTAL DISABILITIES
 ASSISTANCE and BILL OF RIGHTS
 ACT:
      Child find           303.302(c)(1)(ii)(D).
     coordination.
DIAGNOSED PHYSICAL OR MENTAL
 CONDITION:
      Infant or toddler    303.21(a)(2).
     with a disability
     (Definition).
DIETICIANS:
      Early Intervention   303.13(c)(9).
     services (Qualified
     personnel).
DIRECT SERVICES:
      Description of use   303.205(d).
     of funds.
        ○ See also ``Use of
         Funds''.
DISORDERS:
      Infant or toddler    303.21(a)(2)(ii).
     with a disability
     (Definition).
      Speech-language      303.13(b)(15).
     pathology services
     (Definition).
      Vision services      303.13(b)(17).
     (Definition).
DISPUTES; DISPUTE RESOLUTION:
      Impartial due        303.443(a).
     process hearing.
      Intra-agency or      303.511(c)(1).
     interagency disputes.
      Lead agency role in  303.120(d)-(f).
     resolving disputes.
      Mediation
        ○ In general.........  303.431.
        ○ State dispute        303.430(b).
         resolution.
      Procedures for       303.511(c).
     resolving disputes (Methods
     of ensuring services).
      Resolution process
     (Part B).
        ○ Due process          303.430(d).
         procedures (Comparison
         of Part B and C).

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        ○ Resolution meeting.  303.442(a).
        ○ Written settlement   303.442(d).
         agreement.
      State dispute
     resolution options:
        ○ Mediation..........  303.430(b).
        ○ Status of child      303.430(e).
         during pendency of a due
         process complaint.
DRESSINGS; COLOSTOMY BAGS
 (Changing of):
      Health services      303.16(b)(1).
     (Definition).
DUE PROCESS HEARING PROCEDURES--
 Options:
      Part B procedures..  303.430(d)(2).
      Part C procedures..  303.430(d)(1).
DUE PROCESS PROCEDURES--Part B:
      Adopting Part B      303.430(d)(2).
     procedures (By lead agency).
      Civil action.......  303.448.
      Due process          303.441.
     complaint.
      Filing a due         303.440.
     process complaint.
      Finality of          303.446.
     decision; appeal; impartial
     review.
      Hearing decisions..  303.445.
      Hearing rights.....  303.444.
      Impartial due        303.443.
     process hearing.
      Resolution process.  303.442.
      State enforcement    303.449.
     mechanisms.
      Timelines and        303.447.
     convenience of hearings and
     reviews.
DUE PROCESS PROCEDURES-Part C:
      Appointment of       303.435.
     impartial hearing officer.
        ○ Definition of        303.435(b).
         ``impartial''.
        ○ Qualifications and   303.435(a).
         duties.
      Civil action.......  303.438.
      Convenience of       303.437.
     hearings and timelines.
      Parental rights in   303.436.
     due process hearings.
      See ``Status of      303.430(e).
     child during pendency of a
     due process hearing
     request''.
      See also
     ``Procedural Safeguards''.
EARLY HEAD START:
      Child find           303.302(c)(1)(ii)(E).
     Coordination.
      Content of an        303.344(h)(1)(ii).
     individualized family
     service plan (IFSP)
     (Transition from Part C).
      Coordination with    303.210(a).
     Head Start and Early Head
     Start, early education, and
     child care programs.
      Comprehensive        303.118(a)(3).
     system of personnel
     development (CSPD)
     (Transition from Part C).
EARLY HEARING DETECTION AND
 INTERVENTION (EHDI):
      Child find system..  303.302(c)(1)(ii)(J).
EARLY INTERVENTION SERVICES:
      Definitions:
        ○ General............  303.13(a).
        ○ Other services.....  303.13(d).
        ○ Qualified personnel  303.13(c).
        ○ Types of Early       303.13(b).
         Intervention services.
EARLY INTERVENTION SERVICE (EIS)
 PROGRAM:
      Definition.........  303.11.
      State monitoring     303.700.
     and enforcement.
      State performance    303.701.
     plans and data collection.
      State use of         303.702.
     targets and reporting.
EARLY INTERVENTION SERVICE (EIS)
 PROVIDER:
      Applicability of     303.2(b)(1)(i).
     this part.
      Definition.........  303.12(a).
      Participating        303.403(c).
     agency (Definition).
      Requirement to       303.343(a)(1)(vi).
     attend individualized family
     service plan (IFSP) meetings.
      Responsibility and   303.12(b), 303.346.
     accountability.
      State ability to     303.700(a)(3).
     impose funding conditions
     (State's monitoring and
     enforcement).
      State dispute        303.430.
     resolution options.
      State requirement    303.120.
     to monitor.
EARLY PERIODIC DIAGNOSIS,
 SCREENING, AND TREATMENT
 (EPSDT):

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      Child find           303.302 (c)(1)(ii)(C).
     (Coordination).
EDUCATIONAL SERVICE AGENCY:
      Local educational    303.23(b)(1).
     agency (LEA) (Definition).
EHDI--Early Hearing Detection and  303.302(c)(1)(ii)(J).
 Intervention.
ELIGIBLE RECIPIENTS OF AN AWARD..  303.2.
ELIGIBILITY (CHILD):
      See ``Child
     Eligibility''
ELIGIBILITY (STATE):
      Requirements for a   303.101.
     grant.
ENVIRONMENTAL or BIOLOGICAL
 FACTORS:
      At-risk infant or    303.5.
     toddler (Definition).
EPSDT:
      See ``Early
     Periodic Screening,
     Diagnosis, and Treatment''.
EQUITABLE ACCESS TO, AND EQUAL     303.212(a).
 PARTICIPATION IN, THE PART C
 STATEWIDE SYSTEM.
ESTABLISHING FINANCIAL             303.511.
 RESPONSIBILITY and METHODS OF
 ENSURING SERVICES.
EVALUATION, ASSESSMENT, and        303.113.
 NONDISCRIMINATORY PROCEDURES.
EVALUATION (AND ASSESSMENT) (A-
 E):
      Assessment of child  303.321(c)(1).
     (Definition).
      Assessment of        303.321(c)(2).
     family (Definition).
      Confidentiality      303.401(b)(2).
     procedures.
      Consent before       303.420(a)(2).
     evaluations and assessments
     are conducted.
      Determination that   303.322.
     a child is not eligible.
      Due process          303.441(e)(1)(iii).
     complaint.
      Early Intervention
     services:
        ○ Qualified personnel  303.13(c)(6).
         (Pediatricians, etc, for
         diagnosis and
         evaluation).
        ○ Types of services..  303.13(b)(1)(ii)(A), (b)(2)(ii),
                                    (b)(5), (b)(9)(i), (b)(17)(i).
      Evaluation           303.321(a)(2)(i).
     (Definition).
EVALUATION (AND ASSESSMENT) (F-
 L):
      Family assessment..  303.321(c)(2), 303.344(b).
      Family information.  303.344(b).
      Filing a due         303.440(a)(1).
     process complaint (Part B).
      Financial            303.511(a).
     responsibility.
      Functions not        303.521(b)(2).
     subject to fees.
      Hearing officer      303.445(a)(2)(i)-(ii).
     decision.
      Hearing rights.....  303.444(b).
      Individualized
     family service plan (IFSP):
        ○ Annual meeting to    303.342(c).
         evaluate the
         individualized family
         service plan (IFSP).
        ○ Child's status.....  303.344(a).
        ○ Definition.........  303.20(a).
      Initial and annual   303.343(a)(1)(v).
     individualized family
     service plan (IFSP) Team
     meetings.
EVALUATION (AND ASSESSMENT) (M-
 PO):
      Multidisciplinary:
        ○ Definition.........  303.24.
        ○ Early Intervention   303.12(b)(1).
         service (EIS) provider.
        ○ Evaluation and       303.321(a)(1)(i).
         assessment of the child.
        ○ Statewide system...  303.113(a)(1).
      Native language      303.25(a)(2).
     (Definition).
      Nondiscriminatory:
        ○ Evaluation of the    303.321(a)(4).
         child (No single
         procedure used).
        ○ Nondiscriminatory    303.113.
         procedures (Title).
      Parental consent...  303.420(a)(2), (b)(1)-(b)(2), (c)(1).
      Payor of last        303.510(b).
     resort (Interim payments).
      Post-referral        303.310.
     timeline (45 days).
        ○ Exceptional          303.310(b)(1).
         circumstances (Not
         within 45 days).
EVALUATION (AND ASSESSMENT) (PR-
 Z):
      Prior written        303.421(a).
     notice.

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      Prior written        303.421(c).
     notice (Must be in native
     language).
      Provision of         303.345.
     Services before evaluations
     and assessments are
     completed.
      Public awareness     303.301(b)(2).
     program.
      Referral procedures  303.303.
      Screening            303.320(a), (c).
     procedures.
      Service              303.34(b)(3).
     coordination services (Case
     management).
      Timelines (45 days)  303.310(a).
        ○ Exception to 45-day  303.310(b).
         timeline.
      Transition from      303.344(h)(2)(iii).
     Part C services.
      See also
     ``Assessment''.
EVALUATION, ASSESSMENT, AND        303.113.
 NONDISCRIMINATORY PROCEDURES.
EXCEPTION(S):
      Consent prior to     303.414(b).
     disclosure (Except to lead
     agency and Early
     Intervention service (EIS)
     providers).
      Filing a due         303.440(a)(2).
     process complaint.
      Post-referral        303.310(b)(1).
     timeline (Exceptional
     circumstances).
      Timeline for         303.443(f).
     requesting a hearing
     (Exceptions).
      Ward of the State    303.37(b).
     (Definition).
FAMILY; FAMILIES (A-E):
      Ability to pay       303.521(a)(3).
     (State's definition).
      Assessment of the    303.321(a)(1)(ii)(B).
     family.
      Availability of      303.112.
     Early Intervention services.
      Comprehensive        303.118(b)(3).
     system of personnel
     development (CSPD) (Training
     personnel to support
     families).
      Due process........  303.435(a)(1), 303.440(a)(1).
      Early Intervention   303.13(a)(3)-(a)(4), (b)(1)(ii)(E),
     services.                      (b)(3), (b)(10)(iii), (b)(10)(iv),
                                    (b)(13)(iii)-(b)(13)(v),
                                    (b)(14)(iii), (b)(16).
      Evaluation and
     assessment of child and
     family:
        ○ In native language.  303.321(a)(5)-(6).
        ○ Post-referral        303.310(a).
         timeline.
FAMILY; FAMILIES (F-H):
      Family-directed      303.113(a)(2), (b).
     identification of needs.
      Family therapists..  303.13(c)(2).
      Family training,     303.13(b)(3).
     counseling, and home visits.
      Family Violence      303.211(b)(7), 303.302(c)(1)(ii)(I).
     Prevention and Services Act.
      Homeless family      303.303(c)(10).
     shelters (Primary referral
     sources).
FAMILY; FAMILIES (INDIVIDUALIZED
 FAMILY SERVICE PLAN (IFSP)):
      Content of an        303.344(b), (c).
     individualized family
     service plan (IFSP) (Family
     information).
      Individualized
     family service plan (IFSP)
     Team meetings:
        ○ Accessibility and    303.342(d)(1)(i), (d)(2).
         convenience.
        ○ Advocate outside     303.343(a)(1)(iii).
         the family.
        ○ Native language      303.342(d)(1)(ii).
         (Meeting conducted in).
        ○ Other family         303.343(a)(1)(ii).
         members as requested by
         parent.
        ○ Written notice to    303.342(d)(2).
         family.
FAMILY; FAMILIES (IN-R):
      Interim              303.345.
     individualized family
     service plan (IFSP).
      Parents determine    303.420(d)(1).
     whether to accept or decline
     service (For other family
     members).
      Payor of last        303.510(b).
     resort (Interim payments).
      Permissive use of    303.501(a)-(b).
     funds by lead agency.
      Prior written        303.421(a).
     notice.
      Private insurance..  303.520(b)(2)(i)-(b)(2)(iii).
FAMILY; FAMILIES (SE-ST):
      Service
     coordination services (Case
     management):
        ○ Specific service     303.34(b)(1), (b)(5).
         coordination services.
        ○ Definition.........  303.34(a).
      State complaint      303.432(b).
     procedures.

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      State eligibility    303.101(a)(1)(i)-(a)(1)(ii).
     requirements (Assurance
     regarding Early Intervention
     services).
      State option to
     make Early Intervention
     services available for
     children three and older:
        ○ Possible costs to    303.211(b)(1)(ii)(C).
         families.
        ○ Referral of a child  303.211(b)(7).
         (Substantiated case of
         trauma due to family
         violence).
FAMILY; FAMILIES (SU-Z):
      Surrogate parents..  303.422(d).
      Traditionally
     underserved groups:
        ○ Access to            303.227(b).
         culturally competent
         services.
        ○ Minority, low-       303.227(a).
         income, homeless, and
         rural families and wards
         of the State.
      Transition to
     preschool:
        ○ Conference to        303.209(c).
         discuss services.
        ○ Notification of      303.209(b).
         local educational agency
         (LEA).
        ○ Transition plan....  303.209(d)(3).
FAMILY ASSESSMENT:
      Assessment of the    303.321(c)(2).
     family (Definition).
      Content of an        303.344(b).
     individualized family
     service plan (IFSP) (Family
     information).
      Evaluation and       303.321(c).
     assessment of child and
     family.
      Post-referral        303.310(a).
     timeline.
FAMILY-DIRECTED:
      Assessment of        303.12(b)(1).
     resources.
      Identification of    303.113(a)(2), (b).
     needs.
FAMILY EDUCATIONAL RIGHTS AND
 PRIVACY ACT (FERPA):
      Confidentiality      303.401(b)(1).
     procedures.
FAMILY THERAPISTS:
      Qualified personnel  303.13(c)(2).
     (Early Intervention
     services).
FAMILY TRAINING, COUNSELING, AND
 HOME VISITS:
      Early Intervention   303.13(b)(3).
     services (Definition).
FAMILY VIOLENCE PREVENTION AND     303.211(b)(7), 303.302(c)(1)(ii)(A).
 SERVICES ACT.
FAPE
      See ``Free
     Appropriate Public
     Education.''
FEDERAL COURT:
      Civil action (Part   303.438.
     C).
      Impartial hearing    303.443(c)(1)(ii).
     officer.
      Mediation            303.431(b)(7).
     (Discussions not used in
     court).
      State application    303.228(c)(2).
     (Modifications to).
FEDERAL FUNDS:
      Expenditure of       303.221.
     funds.
      Fiscal control.....  303.226.
      Indirect costs       303.225(c)(2).
     (Cognizant Federal agency).
      Proceeds from        303.520(d).
     public or private insurance.
      Requirement to       303.225(a).
     supplement and not supplant.
FEDERAL LAW(S):
    1.   Alaska Native     303.19(b).
     Claims Settlement Act.
    2.   Americans With    303.448(e).
     Disabilities Act (ADA) of
     1990.
    3.   Child Abuse
     Prevention and Treatment Act
     (CAPTA), see CAPTA.
    4.   Confidentiality.  303.401(a), (c)(2).
    5.   Developmental     303.302(c)(1)(ii)(D).
     Disabilities Assistance and
     Bill of Rights Act.
    6.   Early             303.13(a)(3).
     Intervention services
     (Services at no cost unless
     Federal or State law
     requires fees).
    7.   Family            303.401(b).
     Educational Rights and
     Privacy Act (FERPA).
    8.   Family Violence   303.211(b)(7), 303.302(c)(1)(ii)(A).
     Prevention & Services Act.
    9.   Federally         303.19(c).
     Recognized Indian Tribe List
     Act of 1994 (section 104).
    10.   Head Start Act,
     see Head Start.
    11.   Indian Self-     303.731(a)(1).
     Determination and Education
     Assistance Act.

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    12.   Individuals      303.4.
     with Disabilities Education
     Act (IDEA).
    13.   Rehabilitation   303.448(e).
     Act of 1973 (title V).
    14.   Social Security
     Act (MCHB/Title V, SSI/XVI,
     and Medicaid/Title XIX,),
     see Social Security Act.
    15.   State            303.228(c)(3).
     application (Modifications).
FEDERALLY RECOGNIZED INDIAN TRIBE  303.19(c).
 LIST ACT OF 1994.
FEDERAL REGULATIONS:
      Amendment to Act or  303.228(c)(1).
     a Federal regulation.
      Knowledge of         303.443(c)(1)(ii).
     impartial hearing officer.
FEES (A-R):
      Ability to pay       303.521(a)(3).
     (State's definition).
      Assurance (Fees      303.521(a)(4)(i).
     will not be charged for
     services entitled to at no
     cost).
      Co-payments or       303.521(a)(6).
     deductible amounts.
      Cost participation   303.521(a)(1).
     fees.
      Fees (Under          303.409.
     confidentiality).
      Functions not        303.521(b).
     subject to fees.
      Income and family    303.521(a)(3).
     expenses (State's
     definition).
      Inability to pay--   303.521(a)(3).
     State's definition.
FEES (S-Z):
      State option to      303.211(b)(1)(ii)(C), (d).
     make services available to
     children ages three and
     older.
      Sliding fees
     (Schedule of):
        ○ Early Intervention   303.13(a)(3).
         services.
        ○ System of payments   303.521(a)(1).
         and fees.
      State's definition   303.521(a)(3).
     of ability to pay.
      State system of      303.203(b).
     payments and fees.
      See also
     ``INSURANCE.''
FERPA (Family Educational Rights   303.401(b)(1).
 and Privacy Act).
FETAL ALCOHOL SYNDROME:
      Diagnosed physical   303.21(a)(2)(ii).
     or mental condition.
FILING (FILED) REQUIREMENTS:
      Adoption of State    303.432(a)(1).
     complaint procedures.
      Civil action (Rule   303.448(e).
     of construction).
      Due process          303.441(a)(2), (d)(4).
     complaint.
      Due process hearing  303.430(d)(1)(ii).
     procedures.
      Filing a due         303.430(d)(1)(ii), 303.440(a)(2).
     process complaint.
      Filing a State       303.434(d).
     complaint.
      Filing requirements  303.235.
     regarding a State
     application.
      Impartial due        303.443(f).
     process hearing (Exception
     to timeline).
      Mediation..........  303.431(a).
      Resolution process.  303.442(b)(3).
      Separate due         303.445(c).
     process complaint.
FISCAL CONTROL (AND FUND           303.226.
 ACCOUNTING PROCEDURES).
FORMULA:
      For State            303.730.
     allocations.
FOSTER CARE:
      Child find:
        ○ Scope..............  303.302(b)(1)(ii).
        ○ Coordination.......  303.302(c)(1)(ii)(G).
      Confidentiality      303.405(c).
     (Access rights).
      Council              303.601(a)(12).
     (Composition).
      Primary referral     303.303(c)(9).
     sources.
      Purpose of Early     303.1(d).
     Intervention Program.
FOSTER PARENT:
      Parent (Definition)  303.27(a)(2).
      Ward of the State    303.37(b).
     (Exception).
FREE APPROPRIATE PUBLIC EDUCATION
 (FAPE):
      Definition.........  303.15.
      Permissive use of    303.501(c)-(d).
     funds by lead agency.
      State option to      303.211(e)(1)-(2).
     make services available to
     children ages three and
     older.
      States with Free     303.521(c).
     Appropriate Public Education
     (FAPE) mandates to serve
     children under age three.
FREQUENCY and INTENSITY:
      Content of an        303.344(d)(1)(i).
     individualized family
     service plan (IFSP).

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      Definition.........  303.344(d)(2)(i).
FUNCTIONS NOT SUBJECT TO FEES:
      Administrative and   303.521(b)(4).
     coordinative activities.
      Child find           303.521(b)(1).
     requirements.
      Evaluation and       303.521(b)(2).
     assessment.
      Service              303.521(b)(3).
     coordination services.
FUNDING SOURCES:
      Service              303.34(b)(9).
     coordination services.
FUNDS (A-D):
      Acquisition of       303.104(a).
     equipment and construction
     or alteration of facilities.
      Allocation of funds
     (Outlying areas):
        ○ Consolidation of     303.730(b).
         funds.
        ○ Reservation of       303.730(a).
         funds.
      Control of funds     303.223.
     and property.
      Council:
        ○ Funds for            303.602(b)(3).
         interpreters.
        ○ Use of funds b