[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Rules and Regulations]
[Pages 73006-73029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28175]
[[Page 73005]]
-----------------------------------------------------------------------
Part IV
Department of Education
-----------------------------------------------------------------------
34 CFR Part 300
Assistance to States for the Education of Children With Disabilities
and Preschool Grants for Children With Disabilities; Final Rule
Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 /
Rules and Regulations
[[Page 73006]]
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Part 300
[DOCKET ID ED-2008-OSERS-0005]
RIN 1820-AB60
Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary issues final regulations governing the
Assistance to States for Education of Children with Disabilities
Program and the Preschool Grants for Children with Disabilities
Program. These regulations are needed to clarify and strengthen current
regulations in 34 CFR Part 300 governing the Assistance to States for
the Education of Children with Disabilities Program and Preschool
Grants for Children with Disabilities Program, as published in the
Federal Register on August 14, 2006, in the areas of parental consent
for continued special education and related services; non-attorney
representation in due process hearings; State monitoring, technical
assistance, and enforcement; and allocation of funds. The regulations
also incorporate a statutory requirement relating to positive efforts
to employ and advance in employment individuals with disabilities that
was inadvertently omitted from the 2006 regulations.
DATES: These regulations take effect on December 31, 2008.
FOR FURTHER INFORMATION CONTACT: Tracy R. Justesen, U.S. Department of
Education, 400 Maryland Avenue, SW., room 5107, Potomac Center Plaza,
Washington, DC 20202-2600, Telephone: (202) 245-7605. If you use a
telecommunications device for the deaf (TDD), you may call the Federal
Relay System (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternate format (e.g., braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These regulations implement changes in the
regulations governing the Assistance to States for Education of
Children with Disabilities Program and the Preschool Grants for
Children with Disabilities Program that we have determined are
necessary for effective implementation and administration of the
programs.
On May 13, 2008, the Secretary published a notice of proposed
rulemaking in the Federal Register (73 FR 27690) (NPRM) to amend the
regulations in 34 CFR Part 300 governing these programs. In the
preamble to the NPRM, the Secretary discussed, on pages 27691 through
27697, the changes being proposed; specifically, (1) parental
revocation of consent after consenting to the initial provision of
services; (2) a State's or local educational agency's (LEA) obligation
to make positive efforts to employ qualified individuals with
disabilities; (3) representation of parents by non-attorneys in due
process hearings; (4) State monitoring, technical assistance, and
enforcement of the Part B program; and (5) the allocation of funds,
under sections 611 and 619 of the Individuals with Disabilities
Education Act, as amended by the Individuals with Disabilities
Education Improvement Act of 2004 (Act or IDEA), to LEAs that are not
serving any children with disabilities.
Major Changes in the Regulations
The following is a summary of the major changes in these final
regulations from the regulations proposed in the NPRM (the rationale
for each of these changes is discussed in the Analysis of Comments and
Changes section of this preamble):
Section 300.300(b)(4) has been revised to require that
parental revocation of consent for the continued provision of special
education and related services must be in writing and that upon
revocation of consent a public agency must provide the parent with
prior written notice in accordance with Sec. 300.503.
The exception clause in Sec. 300.512(a)(1), regarding the
right to be represented by non-attorneys, has been revised to apply to
any party to a hearing, not just parents.
The timeline in Sec. 300.602(b)(1)(i)(A), regarding the
State's public reporting on the performance of each LEA located in the
State, has been changed from 60 days to 120 days following the State's
submission of the annual performance report to the Secretary.
Analysis of Comments and Changes
Introduction
In response to the invitation in the NPRM, more than 700 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM immediately follows this introduction. The perspectives of
parents, individuals with disabilities, teachers, related services
providers, State and local officials, and others were very important in
helping us identify where changes to the proposed regulations were
necessary, and in formulating the changes. In light of the comments
received, a number of changes are reflected in these final regulations.
We discuss substantive issues under the pertinent section. The
analysis generally does not address--
(a) Minor changes, including technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority;
(c) Suggested changes that are beyond the scope of the changes
proposed in the NPRM; and
(d) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, such as requests for information about innovative
instructional methods or matters that are within the purview of State
and local decision-makers.
Consent (Sec. 300.9)
Comment: A few commenters supported proposed Sec. 300.9(c)(3),
which states that if a parent revokes consent for his or her child's
receipt of 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. The commenters stated
that this revision provides clear direction to schools regarding the
management of student records when a parent revokes consent. The
commenters stated that schools must have the ability to keep accurate
records pertaining to the child and the child's receipt of special
education and related services. One commenter recommended that proposed
Sec. 300.9(c)(3) would be more appropriately placed in either
Sec. Sec. 300.618 or 300.624, regarding the amendment of education
records and the destruction of information, respectively.
Discussion: We appreciate the commenters' support for this
provision. Concerning the recommendation that the substance of proposed
Sec. 300.9(c)(3) be placed in either Sec. Sec. 300.618 or 300.624, we
have included the provision in Sec. 300.9 because the provision
specifically relates to the definition of consent. Section 300.9(c)
addresses revocation of consent, explaining that consent is voluntary
and
[[Page 73007]]
may be revoked at any time. Further, Sec. 300.9(c) states that the
parent's revocation of consent is not retroactive in that revocation
does not negate an action that has occurred after the consent was given
and before the consent was revoked. Proposed Sec. 300.9(c)(3) further
defines the effect of a parent's revocation of consent on the content
of his or her child's education records. A parent's revocation of
consent is not retroactive; consequently, the public agency would not
be required to amend the child's education records to remove any
references to the child's receipt of special education and related
services in the event the child's parent revokes consent. Therefore, we
decline to follow the commenters' recommendation to remove Sec.
300.9(c)(3) and include the content of this provision in either
Sec. Sec. 300.618 or 300.624.
Changes: None.
Comment: One commenter recommended adding a rule of construction in
Sec. 300.9 to clarify that nothing in proposed Sec. 300.9(c)(3)
reduces a parent's right to request an amendment of their child's
record in accordance with the confidentiality provisions in Sec. Sec.
300.618 through 300.621. Another commenter requested that the language
in proposed Sec. 300.9(c)(3) be clarified to require public agencies
to maintain a child's special education records to ensure that public
agencies are not allowed to amend the child's records or remove
information at their sole discretion.
Discussion: Proposed Sec. 300.9(c)(3) specifies that if a parent
revokes consent for the child's receipt of special education and
related services, the public agency is not required to remove any
references to the child's receipt of special education and related
services because of the parent's revocation of consent. This provision
does not affect the rights provided to parents in Sec. Sec. 300.618
through 300.621, including the opportunity to request amendments to
information in education records that is inaccurate or misleading, or
violates the privacy or other rights of a child. Additionally, proposed
Sec. 300.9(c)(3) does not affect a public agency's responsibilities
under Sec. 300.613, concerning a parent's right to inspect and review
any education records relating to his or her children that are
collected, maintained, or used by the agency under Part B of the Act,
or Sec. 300.624, requiring a public agency to (a) inform parents when
personally identifiable information collected, maintained, or used
under Part B of the Act is no longer needed to provide educational
services to the child, and (b) destroy, at the request of the parent,
such information. Given the protections available to parents to monitor
the information in education records, to amend records, to be notified
if the public agency intends to destroy information in education
records, and to ultimately have the records destroyed, adding a rule of
construction to Sec. 300.9(c)(3), as requested by the commenter, is
not necessary.
We also decline to make the change recommended regarding a public
agency's maintenance of a child's special education records, as the
regulations already provide sufficient protection of the child's and
parents' interests with regard to monitoring, amending, and removing
information from the child's records. Parents have the right, under
Sec. 300.613, to inspect and review any education records relating to
their child that are collected, maintained, or used by the agency under
Part B of the Act. If a parent believes that information in the
education records collected, maintained, or used under Part B of the
Act is inaccurate or misleading or violates the privacy or other rights
of the child, the parent may request that the participating agency
amend the information in the records. Additionally, under Sec.
300.619, the agency must, on request, provide the parent with an
opportunity for a hearing to challenge information in education records
to ensure that it is not inaccurate.
Further, Sec. 300.624 requires that a public agency inform parents
when personally identifiable information is no longer needed to provide
educational services to a child. This notice would normally be given
after a child graduates or otherwise leaves the agency. In instances
when an agency intends to destroy personally identifiable information
that is no longer needed to provide educational services to a child and
informs the parents of that determination, the parents may want to
exercise their right, under Sec. 300.613, to access those records and
request copies of the records they may need to acquire post-school
benefits.
Changes: None.
Comment: One commenter requested that the word ``parents'' in
proposed Sec. 303.9(c)(3) be replaced with the word ``parent'' because
the word ``parent'' has a particular meaning under the IDEA, and
because both the Family Educational Rights and Privacy Act (FERPA) (20
U.S.C. 1232g) and the implementing regulations (34 CFR Part 99) and
IDEA give rights to each individual parent.
Discussion: We agree with the commenter that the word ``parent'' is
more consistent with the language of the other IDEA parental consent
provisions; therefore, we have made the requested change.
Changes: The word ``parents'' in Sec. 300.9(c)(3) has been changed
to ``parent.''
Parental Revocation of Consent for Special Education Services (Sec.
300.300)
Comment: Some commenters, including parents, teachers, and State
educational agencies (SEAs), supported the requirements in proposed
Sec. 300.300(b)(4) that would allow a parent of a child receiving
special education and related services to revoke consent for those
services. Commenters stated that if a parent has the right to initially
consent to special education and related services, the parent also
should have the right to revoke consent for special education and
related services, particularly given that the plain language in Sec.
300.9(c)(1) states that consent may be revoked at any time. Other
commenters stated that parents are the ultimate experts on their
children and have a fundamental right to direct their education. One
commenter stated that schools should not have the right to force
evaluations or services on a child through legal processes. Another
commenter stated that a student should have every right to attempt to
become independent and take responsibility for his or her academic
achievement, without the assistance of an individualized education
program (IEP).
Some commenters generally supported a parent's right to revoke
consent, but only if changes were made to proposed Sec. 300.300(b)(4).
Their recommendations included giving a parent the right to revoke
consent at any time while still ensuring that the parent receives the
time and information needed to make informed decisions regarding his or
her child's continued need for services. Several commenters recommended
procedures that could be implemented when a parent unilaterally revokes
consent for special education and related services. For example,
commenters suggested requiring--that a parent's revocation be in
writing; a meeting between the parent and the public agency to discuss
the parent's decision to revoke consent for special education and
related services; a timeline from the revocation of consent through
discontinuation of services and a specific deadline for convening a
meeting with the parent and providing prior written notice to the
parent; written notice of the receipt of the
[[Page 73008]]
parent's revocation and the public agency's intent to discontinue
services; and that the parent be given an opportunity to meet with the
State's Parent Training Information center (PTI) to receive additional
information concerning the potential impact of the parent's decision.
Other suggested procedures included requiring a parent to acknowledge
in writing that the parent has been fully informed of the educational
services and supports that their child will no longer receive. In
contrast, a few commenters stated that no additional procedures should
be required when a parent revokes consent.
Discussion: We appreciate the commenters' support for this
provision. We agree with the commenters that revocation of consent for
special education and related services must be in writing to ensure
that both the public agency and the parent have documentation that the
child will no longer receive special education and related services.
Therefore, we have revised Sec. Sec. 300.9(c)(3) and 300.300(b)(4) to
require that consent be revoked in writing.
Concerning the comments about written notice of the receipt of a
parent's revocation and the public agency's intent to discontinue
services and the comment concerning an opportunity to meet with the
State's PTI center to receive additional information about the
potential effect of the parent's decision, we have not adopted
additional procedures for parental revocation of consent for special
education and related services because the regulations already provide
sufficient notice protections to enable parents to understand the
implications of the decision they are making. To clarify this point, we
have revised Sec. 300.300(b)(4)(i) to specify that prior written
notice consistent with Sec. 300.503 be provided to parents before a
public agency discontinues special education and related services to
their child. Public agencies, under Sec. 300.503, are required to give
the parents of a child with a disability written notice that meets the
requirements in Sec. 300.503(b) within a reasonable time before the
public agency proposes or refuses to initiate or change the
identification, evaluation, or educational placement of the child or
the provision of a free appropriate public education (FAPE) to the
child. Once a public agency receives a parent's written revocation of
consent for a child's receipt of special education and related
services, the public agency, under Sec. 300.503, must provide prior
written notice to the parent regarding the change in educational
placement and services that will result from the revocation of consent.
The notice must include, among other matters, information on sources
for the parents to contact that can assist the parents in understanding
the requirements of Part B of the Act and its implementing regulations.
Section 300.503(c)(1)(i) also requires that this prior notice be
written in language understandable to the general public. It is
imperative that the public agency provide the required prior notice in
a meaningful manner. Accordingly, Sec. 300.503(c)(1)(ii) requires that
any notice required by Sec. 300.503 must be 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. Additionally, if
the parent's native language or other mode of communication is not a
written language, Sec. 300.503(c)(2) requires the public agency to
take additional measures to communicate the information contained in
the notice. These measures involve taking steps to ensure that the
notice is translated orally or by other means to the parent in the
parent's native language or other mode of communication, that the
parent understands the content of the notice, and that there is written
evidence that the requirements of Sec. 300.503(c) have been met.
Concerning the comment about ensuring that the parent receives the
time and information needed to make informed decisions regarding their
child's continued need for services, a public agency cannot discontinue
services until prior written notice consistent with Sec. 300.503 has
been provided to the parents. Therefore, we expect public agencies to
promptly respond to receipt of written revocation of consent by
providing prior written notice to the parents under Sec. 300.503.
Section 300.503 specifies that, within a reasonable time before a
public agency discontinues services, the public agency must provide the
parents of a child with a disability written notice of the proposal to
discontinue services based on receipt of the parent's written
revocation of consent. Providing such notice a reasonable time before
the public agency discontinues services gives parents the necessary
information and time to fully consider the change and determine if they
have any additional questions or concerns regarding the discontinuation
of services.
While the notice required under Sec. 300.503 provides sufficient
information to parents regarding revocation of consent for special
education and related services, a State may choose to establish
additional procedures for implementing Sec. 300.300(b)(4), such as
requiring a public agency to offer to meet with parents to discuss
concerns for their child's education. However, the State must ensure
that any additional procedures are voluntary for the parents, do not
delay or deny the discontinuation of special education and related
services, and are otherwise consistent with the requirements under Part
B of the Act and its implementing regulations. For example, while a
public agency may inquire as to why a parent is revoking consent for
special education and related services, a public agency may not require
a parent to provide an explanation, either orally or in writing, prior
to ceasing the provision of special education and related services.
Concerning the suggestion that the Department establish a timeline
from revocation of consent through discontinuation of services with a
specific deadline for convening a meeting with the parent and providing
prior written notice to the parent, we expect the discontinuation of
services to occur in a timely manner. However, we understand that the
specific timeline may differ, to some extent, due to parent-specific
factors, such as whether the parent wants to meet with the public
agency or another entity prior to the discontinuation of services.
Thus, to provide needed flexibility, we have not mandated a specific
timeline.
With regard to the comment about ensuring parents acknowledge in
writing that they have been fully informed of the educational services
and supports that they are declining, it is the Department's position
that the prior written notice informs parents of the educational
services and supports that they are declining and establishes a
sufficient record that parents have been appropriately informed.
We also note that under Sec. 300.504, public agencies must provide
parents, at least annually, a procedural safeguards notice that
includes a full explanation of the procedural safeguards available to
the parents of a child with a disability. This notice must explain the
requirements in Sec. 300.300, including that a parent has the right to
revoke consent, in writing, to his or her child's continued receipt of
special education and related services.
Changes: We have added the phrase ``in writing'' after the words
``revokes consent'' in Sec. Sec. 300.9(c)(3) and 300.300(b)(4). We
also have revised Sec. 300.300(b)(4)(i) to clarify that a public
agency must provide prior written notice in accordance with Sec.
300.503
[[Page 73009]]
before ceasing the provision of special education and related services.
Comment: Many commenters opposed the requirements in proposed Sec.
300.300(b)(4) that would allow a parent to revoke consent for special
education and related services. These commenters stated that the
decision to terminate services should be made by the IEP Team because
the IEP Team includes both the parent and professionals. Some
commenters stated that children cannot be placed unilaterally into
special education because eligibility for special education and related
services is determined by a group of qualified individuals and the
parent; therefore, if a parent believes special education services are
not needed, the parent should consult with the IEP Team rather than
making that determination unilaterally.
Other commenters suggested that when a parent believes his or her
child is not progressing, an IEP Team meeting should be held so that
the IEP Team, as a whole and not just the parent, can determine whether
the level of services is appropriate for the child. The commenters
stated that allowing the IEP Team to determine whether the child needs
special education and related services, rather than allowing parental
revocation of consent, would be in the child's best interest.
One commenter stated that revoking consent should be treated
differently than refusing to provide initial consent because revoking
consent results in changing the status quo (i.e., terminating services
that are currently being provided to the child). This commenter argued
that the party seeking a change in the status quo should bear the
burden of showing that the change is warranted. One commenter expressed
concern specifically about a situation in which a parent revokes
consent for special education and related services for a child placed
in a residential setting.
Another commenter expressed concern that allowing a parent to
revoke consent goes too far beyond providing for meaningful parental
participation because it gives the parent a right to veto the IEP Team.
Discussion: We agree with the commenters that the IEP Team (defined
in Sec. 300.23, which includes the child's parents) plays an important
role in the special education decision-making process. For example,
through the development, review and revision of the child's IEP, the
IEP Team determines how to make FAPE available to a child with a
disability. However, the IEP Team does not have the authority to
consent to the provision of special education and related services to a
child. That authority is given exclusively to the parent under section
614(a)(1)(D)(i)(II) of the Act. The Secretary strongly believes that a
parent also has the authority to revoke that consent, thereby ending
the provision of special education and related services to their child.
Allowing parents to revoke consent for the continued provision of
special education and related services at any time is consistent with
the IDEA's emphasis on the role of parents in protecting their child's
rights and the Department's goal of enhancing parent involvement and
choice in their child's education.
We expect that after a parent revokes consent for the continued
provision of special education and related services, the parent will
continue to work with the child's school to support the child in the
general education curriculum. Parents of nondisabled children serve as
partners in their children's education in the same manner as parents of
children with disabilities.
We agree that an IEP Team meeting should be convened if any member
of the IEP Team, including a parent, believes the child is not
progressing. Section 300.324(b)(1)(i) and (ii)(A) requires each public
agency to review a child's IEP periodically, but not less than
annually, and revise the IEP as appropriate to address any lack of
expected progress. However, the review of a child's IEP by the IEP Team
does not replace a parent's right to revoke consent for the continued
provision of special education and related services to his or her
child.
Concerning the comment that revoking consent should be treated
differently than refusing to provide initial consent because the parent
is seeking to terminate special education services that are presently
provided, thus seeking to change the status quo and the comment
expressing concern about revoking consent for a child whose current
placement is in a residential setting, we appreciate that there are
differences between consent for special education and related services
and revocation of such consent. However, at their core, both issues
entail a parent's decision of whether a child will receive special
education and related services. Thus, section 614(a)(1)(D)(i)(II) and
(ii)(II) of the Act, which provides a parent unilateral authority to
refuse special education and related services, informs our decision on
the related issue of revocation of consent for the continued provision
of special education and related services.
Lastly, we disagree with the comments that allowing parents to
revoke consent exceeds the parental participation requirements in Part
B of the Act. As previously discussed, a parent's right to revoke
consent is consistent with the parent's right, in section
614(a)(1)(D)(i)(II) and (ii)(II) of the Act, to determine if his or her
child should receive special education and related services.
Changes: None.
Comment: Many commenters stated that parents may revoke consent for
various reasons or beliefs that are not in the best interest of the
child. Commenters provided specific examples such as conflicts between
the parent and school personnel; an insufficient understanding or
knowledge of the importance of special education and related services;
a belief that continued participation in the special education program
would hinder the child's success in life or stigmatize the child; and
concerns that the special education program is not appropriate. The
commenters expressed concern that parental revocation of consent for
special education and related services could be detrimental to the
academic future of a child with a disability, as well as the academic
future and safety of children in the general education classroom.
Other commenters expressed concern that allowing a parent to
unilaterally revoke consent for the continued provision of special
education and related services is not in the best interest of the child
because these children may not receive instruction from trained
professionals.
Discussion: A parent, under section 614(a)(1)(D)(i)(II) and
(ii)(II) of the Act, has the authority to consent to the initial
provision of special education and related services, and this parental
right applies regardless of the parent's reasons. As previously
discussed, the Secretary believes that a parent also should have the
authority to revoke that consent, thereby ending the provision of
special education and related services to their child. Allowing parents
to revoke consent for special education and related services at any
time is consistent with the IDEA's emphasis on the role of parents in
protecting their child's rights and the Department's goal of enhancing
parent involvement and choice in their child's education.
Concerning the comments asserting that parental revocation of
consent for special education and related services could be detrimental
to the academic future of a child with a disability, the Act presumes
that a parent acts in the best interest of their child. If a child
[[Page 73010]]
experiences academic difficulties after a parent revokes consent to the
continued provision of special education and related services, nothing
in the Act or the implementing regulations would prevent a parent from
requesting an evaluation to determine if the child is eligible, at that
time, for special education and related services.
Safety of all students in the classroom is of primary concern to
the Secretary. The Department expects that schools will continue to
maintain the safety of all students in all classrooms regardless of
whether children are receiving special education and related services.
We do not agree with the commenters that students whose parents
revoke consent for the continued provision of special education and
related services will no longer receive instruction from trained
professionals. The Elementary and Secondary Education Act of 1965, as
amended by the No Child Left Behind Act of 2001 (ESEA), requires that
all teachers in a State who are teaching core academic subjects be
``highly qualified.'' Therefore, States are required to ensure that
students in both general and special education programs are receiving
instruction in core academic subjects from highly qualified teachers,
as that term is defined in section 9101 of the ESEA and 34 CFR 200.56.
Changes: None.
Comment: A few commenters expressed concern that proposed Sec.
300.300(b)(4) may result in students removing themselves from services
when they reach the age of majority. Other commenters asked whether a
child who reaches the age of majority can hold a school responsible for
lost services. One commenter suggested adding a new paragraph to Sec.
300.300(b)(4) that would grant immunity to an LEA if a child with a
disability attains the age of majority and seeks to sue the LEA for
failure to make FAPE available because the child's parent revoked
consent for the continued provision of special education and related
services. Another commenter asked whether unilaterally withdrawing a
child with a disability from special education releases the LEA from
any liability, past or future, with regard to providing FAPE to the
child and the remedies available for denial of FAPE.
Discussion: Section 615(m)(1) of the Act allows, but does not
require, a State to transfer all rights accorded to parents under Part
B of the Act to children who have reached the age of majority under
State law. If State law grants a child who has reached the age of
majority under State law (except for a child with a disability who has
been determined to be incompetent under State law) all rights
previously granted to parents, then the parents' rights are transferred
to the child as provided in Sec. 300.520(a), enabling that child to
revoke consent for special education and related services under Sec.
300.300(b)(4). However, in accordance with section 615(m)(1) of the Act
and Sec. 300.520(a)(1)(i), the public agency must provide any notice
required under Part B of the Act to the child and the parents.
Therefore, the parents would receive prior written notice, consistent
with Sec. 300.503, of the public agency's proposal to discontinue
special education and related services based on receipt of the written
revocation of consent from a child to whom rights transferred under
Sec. 300.520(a). This parental notice could facilitate discussion
between the child and parent of the decision to revoke consent and the
potential ramifications of that decision.
Concerning the comments about a student who reaches the age of
majority holding a school responsible for loss of Part B services,
Sec. 300.300(b)(4)(iii) provides that, if the parent of a child
revokes consent in writing for the continued provision of special
education and related services, the public agency 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. Therefore, granting the public
agency immunity is not necessary because the public agency will not be
considered to be in violation of the requirement to make FAPE available
to the child if the parent revokes consent for special education and
related services. Revocation of parental consent releases the LEA from
liability for providing FAPE from the time the parent revokes consent
for special education and related services until the time, if any, that
the child is evaluated and deemed eligible, once again, for special
education and related services.
Changes: None.
Comment: Several commenters stated that the right to FAPE is a
child's right and allowing parents to revoke consent for special
education and related services undermines that right.
Discussion: We do not agree with the commenters that Sec.
300.300(b)(4) undermines a child's right to FAPE. Section 300.101
requires that FAPE must be available to all children with disabilities
residing in a State between the ages of 3 and 21, inclusive, except
that public agencies are not required to serve children aged 3 through
5 and aged 18 through 21 if serving such children is inconsistent with
State law, practice or the order of any court with respect to the
provision of public education to children of those ages. The child's
parents, under the Act, are afforded rights regarding the provision of
FAPE to their child, including the right to determine whether their
child will receive special education and related services.
Specifically, under section 614(a)(1)(D)(i)(II) and (ii)(II) of the
Act, a parent has the authority to determine whether a public agency
may begin to provide special education and related services to their
child. As discussed previously, it is the Department's position that a
parent also should have the authority to revoke consent to the
continued provision of special education and related services to their
child. The Act presumes that parents act in the best interest of their
child. Therefore, affording a parent the right to consent to the
initial provision of special education and related services or the
right to revoke consent, in writing, to the continued provision of
special education and related services is consistent with the Act and
does not undermine a child's right to FAPE under Sec. 300.101.
Changes: None.
Comment: A few commenters expressed concern about how the
revocation of consent provisions would affect children who live in
foster homes, or where guardianship is in dispute. Another commenter
proposed replacing the words ``the parent'' in Sec. 300.300(b)(4) with
the words ``each parent'' because when custody of a child is in dispute
the provision should require that each legally responsible parent
revoke consent before special education and related services are
discontinued.
Discussion: Certain provisions in the Part 300 regulations, such as
the definition of parent in Sec. 300.30 and the requirements regarding
surrogate parents in Sec. 300.519, ensure that a child with a
disability has an individual who can act as a parent to make
educational decisions on behalf of the child. Parent, as defined in
Sec. 300.30, means a biological or adoptive parent of a child; 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; 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); 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
[[Page 73011]]
responsible for the child's welfare. The definition of parent also
includes a surrogate parent who has been appointed in accordance with
Sec. 300.519 and section 639(a)(5) of the Act. The duty to appoint a
surrogate parent under Sec. 300.519 arises when no parent can be
identified, the public agency, after reasonable efforts, cannot locate
a parent, the child is a ward of the State, or the child is an
unaccompanied homeless youth, as defined in section 725(6) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434(a)(6)).
The language in Sec. 300.300(b)(4) is consistent with other
regulatory language concerning parental rights in the Part B
regulations. Under Sec. 300.30, when guardianship or custody of a
child with a disability is at issue, the parental rights established by
the Act apply to both parents, unless a court order or State law
specifies otherwise. Therefore, we decline to make the change requested
by the commenter.
Changes: None.
Comment: A few commenters questioned whether a parent may revoke
consent for the continued provision of some services and not others
and, therefore, require the public agency to continue to provide only
those services for which the parent has not revoked consent.
Discussion: Section 300.300(b)(4) allows a parent at any time after
the initial provision of special education and related services to
revoke consent for the continued provision of special education and
related services to their child in their entirety. Under Sec.
300.300(b)(1), parental consent is for the initial provision of special
education and related services generally, not for a particular service
or services. Once a public agency receives a parental revocation of
consent, in writing, for all special education and related services for
a child and provides prior written notice in accordance with Sec.
300.503, the public agency must, within a reasonable time, discontinue
all special education and related services to the child. In this
circumstance, the public agency may not use the procedures in subpart E
of these regulations, including the mediation procedures under Sec.
300.506 or the due process procedures under Sec. Sec. 300.507 through
300.516, to obtain agreement or a ruling that the services may be
provided to the child.
In situations where a parent disagrees with the provision of a
particular special education or related service and the parent and
public agency agree that the child would be provided with FAPE if the
child did not receive that service, the public agency should remove the
service from the child's IEP and would not have a basis for using the
procedures in subpart E to require that the service be provided to the
child.
If, however, the parent and public agency disagree about whether
the child would be provided with FAPE if the child did not receive a
particular special education or related service, the parent may use the
due process procedures in subpart E of these regulations to obtain a
ruling that the service with which the parent disagrees is not
appropriate for their child.
Additionally, under the regulations in Sec. 300.300(d)(2), States
are free to create additional parental consent rights, such as
requiring parental consent for particular services, or allowing parents
to revoke consent for particular services, but in those cases, the
State must ensure that each public agency in the State has effective
procedures to ensure that the parents' exercise of these rights does
not result in a failure to provide FAPE to the child.
Changes: None.
Comment: Some commenters asked how proposed Sec. 300.300(b)(4)
will affect a school district's adequate yearly progress (AYP)
reporting under the ESEA and whether children who previously received
special education and related services would be counted in the special
education subgroup. The commenters requested clarification as to
whether the student will remain in the students with disabilities
subgroup if services are discontinued after school has begun but before
the State assessment is administered and whether or not the State will
be required to provide accommodations on assessments to the student.
Another commenter expressed concern that teachers will be blamed if a
child fails to succeed after a parent revokes consent for the continued
provision of special education and related services because educators
are ``liable'' for all students under the ESEA. One commenter expressed
concern about an LEA's and State's ability to accurately track the
progress of students with disabilities over time, especially if large
numbers of parents choose to exercise their right to revoke consent.
Lastly, another commenter expressed concern that a parent who
unilaterally withdraws his or her child from special education and
related services may sue an LEA if a student fails to make progress.
Discussion: Once a parent revokes consent for a child to receive
special education and related services, the child is considered a
general education student and will be considered a general education
student under the ESEA. Therefore, if a parent revokes consent after
the school year begins but before administration of the annual State
assessment required under the ESEA, the child is considered a general
education student who has exited special education for accountability
purposes. Section 200.20(f) of the Title I regulations allows States to
include, for a period of up to two AYP determination cycles, the scores
of students who were previously identified with a disability under the
Act, but who no longer receive special education services, in the
special education subgroup for purposes of calculating AYP (but not for
reporting purposes). Therefore, the State may continue to include a
child whose parent revokes consent for special education and related
services in the special education subgroup for purposes of calculating
AYP for two years following parental revocation of consent. While the
State may continue to include the child in the students with
disabilities subgroup for purposes of calculating AYP for up to two
years, the child will not have an IEP; therefore, the State will no
longer be required under the IDEA to provide accommodations that were
previously included in the child's IEP.
Concerning the suggestion that teachers are ``liable'' and will be
blamed if a child fails to succeed after a parent revokes consent for
special education and related services, we disagree. Teachers play a
critical role in ensuring that all children progress academically
regardless of whether a child receives special education and related
services. The majority of children who receive special education and
related services receive their special education services in the
general education classroom; therefore, general education teachers have
a vital role in promoting their educational progress. These general
education teachers will continue to have an important role in fostering
the educational progress of all children, regardless of whether they
receive special education and related services.
We disagree that LEAs and States will not have the ability to
accurately track the progress of students with disabilities over time.
LEAs currently track the progress of all students through student
records, report cards, progress reports, and State assessments.
Students who no longer receive special education and related services
due to a parent revoking consent will have their progress tracked in
the same manner as students who do not receive special education and
related services.
Lastly, concerning the comment that a parent who revokes consent
for special education and related services may sue an LEA if their
child fails to make
[[Page 73012]]
progress, Sec. 300.300(b)(4)(iii) states that a public agency will not
be considered 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 based on the parent's revocation
of consent. Additionally, there is no private right of action under the
ESEA for a parent to sue an LEA if a child fails to make progress.
Changes: None.
Comment: One commenter asked if a teacher is required to provide
the accommodations listed in a child's IEP in the general education
environment for any child for whom consent for special education and
related services is revoked. Another commenter expressed concern that
the children whose parents revoke consent for special education and
related services may not receive needed accommodations and
modifications thereby compromising the child's success in school and
perhaps in later life.
Discussion: Once a parent revokes consent in writing under Sec.
300.300(b)(4) for the continued provision of special education and
related services, a teacher is not required to provide the previously
identified IEP accommodations in the general education environment.
However, general education teachers often provide classroom
accommodations for children who do not have IEPs. Nothing in Sec.
300.300(b)(4) would prevent a general education teacher from providing
a child whose parent has revoked consent for the continued provision of
special education and related services with accommodations that are
available to non-disabled children under relevant State standards.
Changes: None.
Comment: A few commenters requested that the Department clarify
that the right of a parent to revoke consent for special education and
related services does not relieve the LEA of its obligation under child
find to identify, locate, and evaluate all children with disabilities,
including children whose parents revoke consent for special education
and related services. Other commenters requested clarification as to
the time frame that applies for an LEA to comply with the child find
and service obligations for a child who exits special education without
the agreement of the IEP Team and whether the child should be referred
for services each school year. One commenter expressed concern that
allowing revocation of parental consent would potentially create a
disincentive for general educators to refer students to special
education because teachers would be reluctant to repeatedly refer a
student for special education if a parent previously revoked consent
for services.
Discussion: The child find provisions in section 612(a)(3) of the
Act and Sec. 300.111 require each State to have in effect policies and
procedures to ensure that all children with disabilities residing in
the State and who are in need of special education and related services
are identified, located, and evaluated. Children who have previously
received special education and related services and whose parents
subsequently revoke consent should not be treated any differently in
the child find process than any other child, including a child who was
determined eligible and whose parent refused to provide initial consent
for services. A parent who previously revoked consent for special
education and related services may continue to refuse services;
however, this does not diminish a State's responsibility under Sec.
300.111 to identify, locate and evaluate a child who is suspected of
having a disability and being in need of special education and related
services. A public agency must obtain informed written parental
consent, consistent with Sec. 300.300(a), before conducting an initial
evaluation. A parent who previously revoked consent for the continued
provision of special education and related services, like any parent of
a child suspected of having a disability, may refuse to provide consent
for an initial evaluation.
Concerning the request for clarification of the child find
timeline, child find is an ongoing process. The Department expects that
children whose parents revoke consent will be identified, located and
offered an evaluation in the same manner as any other child if the
child is suspected of having a disability and being in need of special
education and related services. Similarly, we do not agree with the
commenter that general education teachers will not refer children who
previously received special education and related services. States are
required to have policies and procedures in place to ensure effective
child find. Ensuring that general education teachers make appropriate
referrals of children suspected of having a disability, which would
include the referral of children whose parents have previously revoked
consent for such services, is consistent with this responsibility.
Changes: None.
Comment: One commenter requested that Sec. 300.300 be amended to
specifically state that, for discipline purposes, a public agency will
not consider the child to be a child with a disability if the parent
refuses consent, fails to respond to a request for consent, or revokes
consent for special education and related services. Other commenters
stated that revocation of consent for special education and related
services should not impact discipline protections for children whose
parents have revoked consent because the school has prior knowledge
that the child is a child with a disability and the child has been
determined eligible for services. The commenters stated that Sec.
300.534, consistent with section 615(k)(5) of the Act, applies to
children not yet determined to be eligible for special education and
related services who have engaged in behavior in violation of a code of
student conduct. One commenter expressed concern that subjecting
previously eligible students to general education discipline procedures
would leave these students without any education.
Discussion: Section 300.534 generally provides protections for
children not yet determined eligible for special education and related
services in instances when the public agency is deemed to have
knowledge that a child is a child with a disability before the behavior
that precipitated the disciplinary action occurred. However, Sec.
300.534(c)(1)(ii) states that a public agency is not deemed to have
knowledge under this section if the parent of the child has refused
services under the regulations implementing Part B of the Act. When a
parent revokes consent for special education and related services under
Sec. 300.300(b), the parent has refused services as described in Sec.
300.534(c)(1)(ii); therefore, the public agency is not deemed to have
knowledge that the child is a child with a disability and the child may
be disciplined as a general education student and is not entitled to
the Act's discipline protections.
We do not agree that additional clarification of the discipline
procedures is needed in Sec. 300.300 or with the comment that
revocation of consent for special education and related services should
not affect discipline protections because the school has prior
knowledge that the child has been determined eligible for services. The
provisions in Sec. 300.534(c), which mirror the language in section
615(k)(5)(C) of the Act, are clear that once a parent refuses services
the public agency will not be deemed to have knowledge that the child
is a child with a disability and the child will be subject to the same
disciplinary procedures and timelines applicable to general education
students.
[[Page 73013]]
We also disagree that previously eligible students who are subject
to general education discipline procedures will be left without any
education. Students who are no longer receiving special education and
related services due to the revocation of parental consent to the
continued provision of special education and related services will be
subject to the LEA's discipline procedures without the discipline
protections provided in the Act. However, students will continue to
receive the full benefit of education provided by the LEA as long as
they have not committed any disciplinary violations that affect access
to education (e.g., violations that result in suspension). We expect
that parents will consider possible consequences of discipline
procedures when making the decision to revoke consent for the provision
of special education and related services.
Changes: None.
Comment: One commenter asked whether a school will be able to place
a student with a disability whose parent has revoked consent for
special education and related services in a general education classroom
that is co-taught by a special education teacher. Another commenter
asked if a child must meet all the statewide assessment and credit
requirements for graduation applicable to students in the general
education setting if a parent revokes consent for special education and
related services when the child is a high school senior.
Discussion: Once a parent revokes consent for special education and
related services under Sec. 300.300(b), the child is a general
education student. Consequently, the child may be placed in any
classroom where other general education students are placed. If a child
whose parent has revoked consent is placed in a classroom that is co-
taught by a general education teacher and a special education teacher,
then that child is placed in the classroom as a general education
student and should be treated the same as all other general education
students in that classroom.
High school graduation requirements are within the purview of each
State. However, it is reasonable to assume that any student, regardless
of whether they are receiving special education and related services,
will be required to meet statewide assessment and credit requirements
for graduation with a regular diploma.
Changes: None.
Comment: Some commenters raised questions about the protections
under Section 504 of the Rehabilitation Act of 1973, as amended
(Section 504), and Title II of the Americans with Disabilities Act of
1990, as amended (ADA), and their relationship to children with
disabilities whose parents revoke consent for special education and
related services under the Act. Some commenters questioned whether the
Section 504 and ADA protections would continue to apply, and the
relationship between a Section 504 or ADA plan and an IEP, whenever a
parent withdraws consent for continued services under the IDEA. One
commenter asked whether students would remain eligible for discipline
protections under Section 504 even after a parent revokes consent for
special education and related services. Another commenter maintained
that, under Section 504 and the Fourteenth Amendment to the U.S.
Constitution, a child with a disability has a right not to be
discriminated against by imposing disciplinary sanctions for behavior
that is a manifestation of his disability. Several commenters cited the
statement in the Department's March 12, 1999 Analysis of Comments and
Changes to the Final Part B regulations that ``[u]nder Section 504 of
the Rehabilitation Act of 1973, children with disabilities may not be
disciplined for behavior that is a manifestation of their disability if
that disciplinary action constitutes a change of placement'' (see 64 FR
12626), and asked how this interpretation affects the use of
disciplinary measures for students with disabilities, protected under
Section 504 and the ADA, but whose parent has revoked consent for
services under Part B of the Act.
Discussion: These final regulations implement provisions of the
IDEA only. They do not attempt to address any overlap between the
protections and requirements of the IDEA, and those of Section 504 and
the ADA.
Changes: None.
Comment: A few commenters asked whether Sec. 300.300(b)(4) would
affect supplemental security income (SSI) or accommodations in college.
Discussion: If a parent revokes consent for the provision of
special education and related services pursuant to Sec. 300.300(b)(4),
the child's eligibility for other programs, such as SSI, may be
affected. A parent may seek additional information concerning
eligibility requirements for other programs from the agency responsible
for implementing those programs. Regarding accommodations in
postsecondary educational institutions, Office for Civil Rights (OCR)
offers helpful guidance on the transition of individuals with
disabilities to postsecondary education, which is available on OCR's
Web page: http://www.ed.gov/about/offices/list/ocr/transitionguide.html.
Changes: None.
Comment: Some commenters expressed concern that a parent could
assert that the public agency should have done more to convince the
parent not to unilaterally revoke consent for special education and
related services under Sec. 300.300(b)(4).
Discussion: A public agency does not have any obligation to
``convince'' parents to accept the special education and related
services that are offered to a child. Section 300.300(b)(3)(iii) and
(4)(iii) provides that the public agency will not be considered to be
in violation of the requirement to make FAPE available to the child if
the parent of a child revokes consent for the continued provision of
special education and related services. No provision in the Act or
implementing regulations imposes an obligation on public agencies to
dissuade parents from revoking consent.
Changes: None.
Comment: One commenter recommended that if a parent revokes
consent, the LEA should be required to offer FAPE thereafter, including
three year reevaluations, progress monitoring, and an annual IEP until
the LEA and the responsible SEA report under the ESEA that 80 percent
or more of the students with disabilities in the LEA are meeting State
standards and graduating with a regular high school diploma.
Discussion: Section 300.300(b)(4)(iii) through (iv) makes clear
that once a parent revokes consent for special education and related
services, the public agency (a) will not be considered in violation of
the obligation to make FAPE available to the child for failure to
provide the child with further special education and related services,
and (b) will not be required to convene an IEP Team meeting or develop
an IEP, under Sec. Sec. 300.320 through 300.324. As noted earlier, a
child whose parent has revoked consent should be treated the same as
any other child in the LEA's child find process.
We do not agree that a State should be required to offer FAPE,
triennial reevaluations, or an annual IEP until a certain percentage of
students with disabilities meet State standards and graduate with a
regular high school diploma. Decisions concerning the provision of FAPE
and special educational services are individualized and made by an IEP
Team, which includes the child's parents. If a parent revokes consent
for special education and related services, the child will be treated
as a general education student
[[Page 73014]]
and will not be eligible for FAPE, triennial evaluations, or an annual
IEP.
Changes: None.
Comment: Some commenters expressed concern that school district
personnel may encourage a parent to remove their child from special
education and related services, and a few of these commenters requested
that the regulations be amended to prohibit a school district from
doing so. One commenter requested that the regulations require LEAs to
track the number of children whose parents revoke consent in each LEA
(including a child's name, identifying information, and school name)
and report that information to the SEA each year.
Discussion: It is inappropriate for school personnel to encourage a
parent to revoke consent for special education and related services. If
school personnel believe a child no longer qualifies as a child with a
disability, Part B of the Act and its implementing regulations provide
a process for making that determination. Specifically Sec. 300.305(e),
consistent with section 614(c)(5) of the Act, requires that an LEA
evaluate a child before determining that the child is no longer a child
with a disability. This provision applies when eligibility is in
question and an LEA believes a child may no longer be eligible for
special education services. A public agency must follow this long-
standing procedure if the agency believes a child should no longer
receive special education and related services.
Concerning the commenter's request that the Department require LEAs
to track the number of children whose parents withdraw consent in each
LEA, we decline to impose additional data collection requirements on
LEAs to track the number of children whose parents revoke consent in
each LEA because we believe the number of children whose parents revoke
consent will be small. However, nothing in these regulations prevents a
State from separately tracking the number of children whose parents
revoke consent in each LEA.
Changes: None.
Comment: One commenter requested that the Department clarify in
these regulations that the placement of a child in a private school
when FAPE is at issue, pursuant to Sec. 300.148 and section
612(a)(10)(C) of the Act, does not constitute a revocation of consent
under Sec. 300.300(b)(4).
Discussion: We agree with the commenter that the placement of a
child in a private school when FAPE is at issue does not constitute a
revocation of consent under Sec. 300.300(b). However, the provisions
concerning the placement of a child in a private school when FAPE is at
issue do not need to be referenced in Sec. 300.300, as suggested by
the commenter, because those provisions are clearly outlined in Sec.
300.148. Section 300.148 addresses the steps a parent must take when
enrolling a child with a disability in a private school when FAPE is at
issue. If the parent seeks reimbursement for the cost of the private
school, then the parent must follow the procedures in Sec. 300.148(c)
through (e). The parent must inform the IEP Team at the most recent IEP
Team meeting that he or she is rejecting the placement proposed by the
public agency and must inform the IEP Team of his or her intent to
enroll the child in a private school at public expense or give written
notice 10 business days prior to the removal of the child from the
public school. These actions, which are required in response to a
disagreement between the parent and public agency about the provision
of FAPE, do not constitute parental revocation of consent for special
education and related services.
Changes: None.
Comment: Some commenters expressed concern that allowing parents to
revoke consent for special education and related services would result
in parents pulling their children in and out of special education and
related services. The commenters noted that pulling children in and out
of special education and related services would have a negative effect
on student progress, would cause a loss of instructional time, and
could affect the provision of FAPE. Other commenters expressed concern
that parents, who previously revoked consent for services, will ask for
special education and related services when the child has a discipline
issue or is at risk of not graduating. A few commenters requested that
there be a limit to how frequently a parent can revoke consent and then
subsequently request reinstatement in special education for their
child.
Discussion: Section 300.300(b)(4) clarifies that parents have the
right to withdraw their child from special education and related
services. After revoking consent for his or her child, a parent always
maintains the right to subsequently request an initial evaluation to
determine if the child is a child with a disability who needs special
education and related services. Nothing in the Act or the implementing
regulations prevents a parent from requesting an evaluation when their
child has a discipline issue or is at risk of not succeeding in school.
This is because, consistent with Sec. 300.101, the public agency has
an affirmative obligation to make FAPE available to a child with a
disability. The child's right to have FAPE available does not cease to
exist upon the revocation of consent. Therefore, a parent may consider
discipline and graduation requirements when determining whether to
request special education and related services for their child.
We do not agree with the commenter that the Department should limit
how frequently a parent may revoke consent and then subsequently
request reinstatement in special education services because retaining
flexibility to address the unique and individualized circumstances
surrounding each child's education is important. A public agency will
not be considered in violation of the obligation to make FAPE available
to the child for failure to provide the child with further special
education services following a parent's revocation of consent. We
understand the commenter's concern that placing a child in and out of
special education services may affect the provision of FAPE; however, a
public agency is only responsible for providing FAPE during the time
period that the parent has provided consent for special education and
related services.
Changes: None.
Comment: One commenter expressed concern about potential staffing
implications, especially for small school districts that may have hired
a teacher with unique expertise for a child whose parent subsequently
revokes consent for the continued provision of special education and
related services.
Discussion: The Department appreciates that a parent's revocation
of consent could affect staffing at the school and district levels and
that there may be instances where staff members are no longer providing
special education and related services. However, such issues should not
affect a parent's right to revoke consent for special education and
related services because a parent's right to determine whether his or
her child will receive special education and related services is
paramount.
Changes: None.
Comment: Some commenters requested that the Department clarify the
procedures to be followed when a parent provides consent for special
education and related services after previously revoking consent (re-
enrollment), including whether re-enrollment would be considered an
initial evaluation that would trigger the 60-day or other State-imposed
evaluation timeline. Another commenter expressed concern about the
[[Page 73015]]
expenditure of resources toward a ``new'' initial evaluation and IEP
for a student for whom consent for special education and related
services has been revoked and then granted again.
Discussion: If a parent who revoked consent for special education
and related services later requests that his or her child be re-
enrolled in special education, an LEA must treat this request as a
request for an initial evaluation under Sec. 300.301 (rather than a
reevaluation under Sec. 300.303). However, depending on the data
available, a new evaluation may not always be required. An initial
evaluation, under Sec. 300.305, requires a review of existing
evaluation data that includes classroom based, local, or State
assessments, and classroom based observations by teachers and related
services providers. On the basis of that review and input from the
child's parents, the IEP Team and other qualified professionals must
identify what additional data, if any, are needed to determine whether
the child is a child with a disability, as defined in Sec. 300.8, and
the educational needs of the child. Therefore, a public agency may not
always have to expend resources on a ``new'' initial evaluation.
Changes: None.
Comment: A few commenters argued that the Department does not have
the authority to issue regulations that allow a parent to revoke
consent for special education and related services. One commenter
argued that there is no statutory language in section 614(a)(1)(D)(ii)
of the Act that authorizes a parent to revoke consent once services
have been provided. Other commenters argued that the Department does
not have the authority to regulate in this manner because doing so
violates the requirements of section 607 of the Act, which prohibits
the adoption of any regulation that procedurally or substantively
lessens the protections provided to children with disabilities as
embodied in the regulations in effect on July 20, 1983 unless the
regulation ``reflects the clear and unequivocal intent of Congress in
legislation.'' These commenters noted that the current regulations
(i.e., without provisions permitting the parent to revoke consent) are
designed to safeguard the rights of the child, not the unilateral
preferences of the parent.
Discussion: As discussed elsewhere in this preamble, although
section 614(a)(1)(D) of the Act does not explicitly state that parents
have the right to revoke consent for special education and related
services, the parent's right to revoke consent for special education
and related services at any time is consistent with the Act's emphasis
on the role of parents in protecting their child's rights and the
Department's goal of enhancing parent involvement and choice in their
child's education.
We also disagree that allowing a parent to revoke consent for the
provision of special education and related services under Sec.
300.300(b)(4) procedurally or substantively lessens protections
provided to children with disabilities as embodied in regulations in
effect on July 20, 1983. As previously stated in response to other
comments, a parent is recognized under the Act as the party responsible
for protecting the child's interest in obtaining appropriate
educational services. It is the Department's position that the
protections provided to children with disabilities are enlarged rather
than lessened by amending the regulations to provide that a parent's
decision to revoke consent for the continued provision of special
education and related services cannot be challenged by the public
agency. Furthermore, the change reflected in Sec. 300.300(b)(4) is
consistent with the legislative changes made to the Act in 2004, which
included adding to section 614(a)(1)(D)(ii)(II) of the Act the
requirement that parental consent be obtained before the public agency
begins to provide special education and related services to their
child. In our view, the better reading of the Act, especially in light
of the Department's long-standing regulatory definition of ``consent,''
which has included the concept that consent can be revoked at any time,
is that a parent's revocation of consent for the continued provision of
services cannot be challenged by a public agency any more than a
parent's refusal to provide consent for the initial provision of
special education and related services can be.
Changes: None.
Comment: One commenter suggested that allowing parents to
discontinue special education and related services without a
reevaluation is inconsistent with the requirement in section 614(c)(5)
of the Act that a public agency conduct a reevaluation of a child
before determining that the child is no longer a child with a
disability.
Discussion: We disagree with the commenter that allowing a parent
to revoke consent for special education and related services is
inconsistent with the requirements in section 614(c)(5) of the Act.
Section 614(c)(5) of the Act requires that an LEA evaluate a child
before determining that the child is no longer a child with a
disability. This provision applies when eligibility is in question and
the LEA believes the child may no longer be eligible for special
education services. Section 300.300(b)(4) allows a parent to revoke
consent for the continued provision of special education and related
services and does not trigger an LEA's obligation to conduct an
evaluation for a child that is receiving services before determining
that a child is no longer a child with a disability. If a parent
revokes consent for the continued provision of special education and
related services for his or her child, the public agency is not
determining that the child is no longer a child with a disability as
contemplated by section 614(c)(5) of the Act and Sec. 300.305(e).
Instead, the public agency is discontinuing the provision of special
education and related services pursuant to the decision of the parent
and there is no obligation for the LEA to evaluate the child.
Changes: None.
Comment: Some commenters requested that the final regulations
provide dispute resolution options for public agencies when a parent
revokes consent for special education and related services. The
commenters cited various reasons as to why dispute resolution options
should be included in Sec. 300.300(b)(4) such as: The ability to
strike a suitable balance among the interests of the public agency,
parent, and child with a disability; the need for proposed Sec.
300.300(b)(4) to be consistent with section 615(b)(6)(A) of the Act and
Sec. 300.507, providing that a parent or a public agency may file a
due process complaint on any matter relating to the identification,
evaluation or educational placement of a child with a disability, or
the provision of FAPE to the child; and the ability of a public agency
to determine that a child is no longer a child with a disability.
Lastly, some commenters requested that public agencies be allowed
to initiate the mediation process when a parent revokes consent, while
another commenter stated that public agencies should, at least, be able
to offer mediation and that parents can refuse to participate, at their
sole discretion.
Discussion: While the dispute resolution mechanisms in section 615
of the Act generally are appropriate to resolve disputes between a
parent and the public agency, it is the Department's position that they
are not appropriate when a parent revokes consent for all special
education and related services. Section 615(b)(6)(A) of the Act and
Sec. 300.507 allow a parent or public agency to file a due process
complaint on any matter relating to the identification, evaluation, and
educational placement of a child with a
[[Page 73016]]
disability, or the provision of FAPE to the child. However, section
614(a)(1)(D)(ii)(II) of the Act does not allow an LEA to use the due
process procedures under section 615 of the Act, including mediation,
if a parent refuses to provide consent for the initial provision of
services. If an LEA cannot use the due process procedures in section
615(b)(6)(A) of the Act and Sec. 303.507 to override a parent's
refusal to provide initial consent for services, then an LEA also
should not be allowed to use these due process procedures to override a
parent's revocation of consent for the continued provision of services.
As discussed throughout this preamble, the Secretary believes that
protecting the interest of parents to make the decision as to whether
or not their child receives special education and related services is
consistent with the intent of the Act.
We agree that the application of the due process procedures to
disputes between parents and public agencies generally balances the
interests of public agencies, parents, and children. However, as
evidenced by section 614(a)(1)(D)(ii)(II) of the Act, which prohibits
LEAs from using the due process procedures under section 615 of the Act
if a parent refuses to provide consent for the initial provision of
services, a public agency's right to use the due process procedures in
section 615(b)(6)(A) of the Act and Sec. 303.507 is not absolute.
Similarly, a public agency should not have the ability to override a
parent's revocation of consent for the continued provision of special
education services and related services.
Moreover, we do not agree with the commenter who suggested that
allowing a parent to revoke consent will affect a public agency's
ability to determine that a child is no longer a child with a
disability. If a public agency believes a child is no longer a child
with a disability then, as required in Sec. 300.305(e), a public
agency must evaluate the child before making that determination. If the
parent disagrees with the eligibility determination, then the parent
may challenge the decision using the due process procedures in section
615 of the Act.
Lastly, mediation, pursuant to Sec. 300.506(a), may be used to
resolve any disputes under Part B of the Act and its implementing
regulations before a parent revokes consent for the continued provision
of special education and related services. However, for the same
reasons that mediation is not allowed when a parent refuses to provide
initial consent for services, mediation is not appropriate once a
parent revokes consent for the provision of special education and
related services.
Changes: None.
Comment: One commenter expressed concern that allowing a parent to
remove their child from special education and related services will
affect LEAs' and SEAs' ability to meet their State Performance Plans
(SPP) and the Annual Performance Report (APR) targets for graduation in
Indicator 1 and the targets for the participation and performance of
children with disabilities on statewide assessments in Indicator 3. The
commenter also expressed concern about the potential failure of
students with disabilities whose parents revoke consent for special
education and related services to participate fully in post-school
opportunities, reflected in Indicators 13 and 14, regarding secondary
transition and post-school outcomes, respectively.
Discussion: Section 616(a)(3) of the Act requires the Secretary to
monitor the States, and the States to monitor LEAs, using quantifiable
indicators in the following priority areas: The provision of FAPE in
the LRE; the State's exercise of general supervisory authority; and
disproportionate representation of racial and ethnic groups in special
education and related services to the extent the representation is the
result of inappropriate identification. As required by the Act, the
Secretary established, with broad stakeholder input, 20 indicators.
States established rigorous targets for each indicator and developed
activities to improve performance to meet those targets in their SPPs.
States report to the Department in their APR on their performance in
meeting their targets.
Generally, if a parent revokes consent for his or her child to
receive special education and related services, the child is no longer
required to be included in calculations for children with disabilities
for indicators in the SPP/APR. States may choose to handle students
whose parents revoke consent to the continued provision of special
education and related services in graduation rate calculations for
purposes of the SPPs/APRs in the same way that they treat other
students who exit from special education and related services prior to
graduation. Additionally, students whose parents revoke consent to the
continued provision of special education and related services are no
longer children with disabilities whose participation in post-school
opportunities would be tracked by the SPP/APR Indicators 13 and 14.
Changes: None.
Comment: One commenter noted that some States' mandatory reporting
requirements for abuse and neglect may be triggered when a parent
revokes consent for special education and related services, especially
in cases where a child may require medical services.
Discussion: The commenter is correct that each State has
established reporting requirements and professional codes of conduct
concerning suspected abuse and neglect. Nothing in these regulations
will alter any responsibilities under those State laws.
Changes: None.
States' Sovereign Immunity and Positive Efforts To Employ and Advance
Qualified Individuals With Disabilities (Sec. 300.177)
Comment: A few commenters requested clarification of the term
``positive efforts,'' as it is used in Sec. 300.177(b). One commenter
recommended that the regulations clarify that the term ``positive
efforts'' includes making reasonable accommodations during the
recruitment and interview process, and ensuring that assistive
technology devices are provided in the workplace.
Discussion: Consistent with section 606 of the Act, positive
efforts must be made to recruit and advance qualified individuals with
disabilities in programs assisted under Part B of the Act. We decline
to define the term ``positive efforts'' in these regulations because
the positive efforts taken by States will vary based on the unique and
individual needs of a State and public agency, and those needs may
change over time. For example, a public agency's positive efforts might
include participating in an employment fair that is targeted at
individuals with disabilities, sending vacancy announcements to
organizations for individuals with disabilities and ensuring that
employees with disabilities are aware of promotion opportunities. As a
separate obligation under Section 504, each recipient of assistance
must provide reasonable accommodations, which may include assistive
technology devices, to each qualified individual with a disability who
applies for employment, or is employed in programs assisted under Part
B of the Act.
Changes: None.
Comment: One commenter opposed proposed Sec. 300.177 because,
according to the commenter, section 606 of the Act is silent on the
Department's authority to issue regulations relating to the employment
of individuals with disabilities. The commenter argued that
[[Page 73017]]
doing so would be contrary to Congress' intent, in section 607(a) of
the Act, that the Secretary issue regulations only to the extent that
such regulations are necessary to ensure compliance with the specific
requirements of the IDEA. The commenter further noted that proposed
Sec. 300.177(b) is unnecessary because in order to receive a grant
under Part B of the IDEA, each State must already have on file with the
Department a description of the steps the State proposes to take to
ensure equitable access to, and participation in, activities conducted
under Part B of the Act, as required by section 427 of the General
Education Provisions Act (GEPA).
Another commenter opposed this provision because the changes
pertain to employment requirements rather than to the provision of
special education. The commenter suggested that the Department provide
guidance on this issue rather than include it in the regulations.
Discussion: Section 606 of the Act requires the Secretary to ensure
that each recipient of assistance under Part B of the Act makes
positive efforts to employ and advance in employment qualified
individuals with disabilities in programs assisted under the Act.
Section 300.177(b), consistent with section 606 of the Act, makes clear
that this requirement applies to each recipient of Part B funds,
including both SEAs and LEAs. This provision does not replace or
contradict protections afforded to individuals with disabilities under
other State or Federal laws, including requirements under GEPA, Section
504, Title II of the ADA, and applicable employment laws. Additionally,
Sec. 300.177(b) implements statutory provisions; the fact that it
addresses employment matters rather than the provision of special
education services does not mean that it should not be included in the
regulations. The Department therefore declines to adopt the suggestion
that this matter be addressed through guidance rather than through the
regulations.
Changes: None.
Comment: One commenter questioned whether the Department might add
the provision in Sec. 300.177(b) as one of the Secretary's monitoring
priorities for reporting by SEAs and LEAs in the SPP and APR.
Discussion: As previously discussed in this preamble, section
616(a)(3) of the Act specifies the Department's IDEA monitoring
priorities and requires the Secretary to monitor the States'
performance in these priority areas using quantifiable indicators. At
this time, the Department does not expect to include an additional
indicator to monitor the implementation of the requirements in Sec.
300.177(b).
Changes: None.
Hearing Rights (Sec. 300.512)
Comment: Several commenters supported proposed Sec. 300.512
stating that a parent's right to be represented by non-attorneys at due
process hearings is best decided by State law. Other commenters
disagreed with our statement in the preamble to the NPRM that the
language of the Act is not clear about whether non-attorneys can
represent parties in due process hearings. These commenters stated that
the Act and its implementing regulations both provide that any party to
a hearing shall be accorded the right to be accompanied and advised
``by counsel and by individuals with special knowledge or training with
respect to the problems of children with disabilities * * *.'' The
commenters stated that because the term ``counsel'' is referenced
separately and distinguished from ``individuals with special knowledge
or training'' in both the Act and the regulations, the Department
should conclude that such ``individuals'' may, in fact, be other than
counsel (i.e., attorneys) and represent a parent in a due process
hearing. One commenter noted that experienced advocates can be very
helpful to parents who represent themselves in due process hearings.
Another commenter stated that proposed Sec. 300.512 should not permit
a State's rules related to the unauthorized practice of law to prohibit
a parent from being ``accompanied and advised'' by a lay advocate
because this would be contrary to the actual text of the Act. Moreover,
several commenters stated that proposed Sec. 300.512 violates the
intent of the Act, which they describe as providing parents with the
broadest opportunities for assistance in due process hearings. These
commenters stated further that nothing in the language or intent of the
Act permits the Department's interpretation that States have the
authority to decide whether parents can be represented by non-attorneys
in due process hearings under the Act.
Discussion: Section 615(h)(1) of the Act is clear that parties to a
due process hearing may be ``accompanied and advised'' by counsel and
by individuals, such as non-attorney advocates, who have special
knowledge or training regarding the problems of children with
disabilities. Nothing in these regulations or State law can limit this
right. However, neither the Act nor the current regulations
implementing Part B of the Act address the issue of whether individuals
who are not attorneys, but have special knowledge or training regarding
the problems of children with disabilities, may ``represent'' parties
in due process hearings under the Act. Congress considered the question
of non-attorney representation during the 2003-2004 IDEA
reauthorization process. The version of H.R. 1350 passed by the House
of Representatives in 2003 included a provision giving a party the
``right to be represented by counsel and by non-attorney advocates and
to be accompanied and advised by individuals with special knowledge or
training with respect to the problems of children with disabilities''
(63 Cong. Rec. H3458 and H3495 (daily ed. Apr. 30, 2003)). The final
version of the bill enacted in 2004, however, did not adopt this
language. In other areas, though, the Act, as revised in 2004, now
specifically addresses duties applicable to ``either party, or the
attorney representing a party'' (see section 615(b)(7)(A) and (B) of
the Act). Given that the Act is silent regarding the representational
role of non-attorneys in IDEA due process hearings, the issue of
whether non-attorneys may ``represent'' parties to a due process
hearing is a matter that is left, by the statute, to each State to
decide. As the commenter notes, even if a State law prohibits non-
attorney representation in due process hearings, the Act still affords
parties to due process hearings the right to be accompanied and advised
by individuals with special knowledge or training with respect to the
problems of children with disabilities.
Changes: None.
Comment: Several commenters expressed dissatisfaction with proposed
Sec. 300.512 because it would give too much deference to States,
permit inconsistent rules across States, and would limit a party's
right under Federal law to be represented by a non-attorney in a due
process hearing based on States' interest in regulating the practice of
law. Other commenters stated that federalism concerns should not
override the national interest, reflected in the Act, in the equal
opportunity of children with disabilities to appropriate education.
Discussion: As noted elsewhere in this preamble, the Act does not
state that parties to a due process hearing have a right to
representation in those hearings by non-attorney advocates. Given the
Act's silence in this regard, the Act does not prevent States from
regulating whether non-attorneys may ``represent'' parties in due
process hearings.
Changes: None.
Comment: One commenter requested that the final regulations clarify
whether
[[Page 73018]]
it is sufficient for an SEA to provide by regulation or procedural rule
that a lay advocate may represent parties at due process hearings or
whether the ability of a lay advocate to represent a party at a due
process hearing instead is controlled by State law regarding the
unauthorized practice of law. Another commenter requested that we add a
provision to the regulations to clarify that nothing in the Act
authorizes parents to be represented by non-attorneys if State law is
silent on the issue.
Discussion: Whether an SEA may have a State regulation or
procedural rule permitting non-attorney advocates to represent parties
at due process hearings or whether that issue is controlled by State
attorney practice laws is determined by State law. If State law is
silent on the question of whether non-attorney advocates can represent
parties in due process hearings, there is no prohibition under the Act
or its implementing regulations on non-attorney advocates assuming a
representational role in due process hearings.
Changes: None.
Comment: Many commenters asserted that the proposed changes to
Sec. 300.512 would negatively affect future cases as parents unable to
afford attorneys' fees, or unable to find an attorney knowledgeable
about special education law, will be faced with the choice of either
representing themselves or foregoing a due process hearing. Other
commenters suggested that the proposed regulatory change has the
potential to disrupt the State system of administrative due process
hearings when lay advocates are not available to assist parents. One
commenter noted that lay advocates are necessary to help represent
parents because school officials are more knowledgeable about the law
than parents, and there are more school lawyers than there are lawyers
willing to represent parents in due process hearings. Some commenters
noted that publicly funded programs providing legal representation to
persons with disabilities are not funded at the level that meets the
need for free or low-cost assistance. Another commenter noted that non-
attorney advocates provide a necessary and valuable service to children
with disabilities, and that limiting the role of non-attorney advocates
will adversely affect the rights of children with disabilities in due
process hearings. Other commenters argued that lay advocates serve an
important function and are an excellent resource for families.
Discussion: We agree with the commenters that non-attorney
advocates can perform a valuable service to parties in due process
hearings. As just one example, non-attorney advisors with special
knowledge of or training in the problems of children with disabilities
who speak languages other than English can play an important role in
accompanying and advising parents who do not speak English at due
process hearings. However, because the Act is silent about the
representational role of non-attorneys in due process hearings, States
are not prohibited by the Act from regulating on that issue. Therefore,
we make clear, in Sec. 300.512, that whether non-attorneys can
``represent'' parties in due process hearings is a matter that is
controlled by State law. There currently are States that prohibit non-
attorney representation in due process hearings, and parties to due
process hearings in those States need to understand that they may not
be ``represented'' in a due process hearing by a non-attorney, although
they may be ``accompanied and advised'' by a non-attorney in the due
process hearing if that individual has special knowledge or training
respecting the problems of children with disabilities.
Changes: None.
Comment: A few commenters recommended that States be required to
provide parents with a list of available and affordable attorneys if
State law does not allow for non-attorney representation in due process
hearings. The commenters also recommended that the Department identify
strategies to ensure that parents have access to free or reduced-fee
representation by knowledgeable attorneys when legal counsel is
necessary, such as appealing due process decisions in court.
Discussion: Current Sec. 300.507 requires public agencies to
inform a parent of any free or low-cost legal and other relevant
services in the area if the parent requests the information or if the
parent or public agency files a due process complaint. We expect States
to work to ensure that parents for whom legal counsel under Part B of
the Act is necessary have easy access to information about free or low-
cost legal or other relevant services available in their area. Each
State is in the best position to determine effective strategies to
ensure that parents have access to information about free or low-cost
assistance. For these reasons, we decline to make the requested changes
to these regulations.
Changes: None.
Comment: One commenter opposed the proposed changes to Sec.
300.512 and expressed concern that these changes will limit parents'
representation during the IEP process. Another commenter stated that
parents are intended to be ``equal partners'' in the educational
decision-making process for their child under the Act, and therefore,
should be able to utilize non-attorney assistance whenever necessary.
Some commenters stated that effective advocacy is necessary to ensure
that children have access to the services and programs necessary to
develop an appropriate IEP.
Discussion: We agree with commenters that parents should be equal
partners in the educational decision-making process for their child and
that parents should be able to utilize assistance from non-attorney
advocates whenever necessary, such as in securing an appropriate IEP
for their child and, as noted previously in this preamble, in preparing
for and participating in due process hearings. The proposed changes to
Sec. 300.512 only address whether a party can be represented by a non-
attorney in a due process hearing, specifying that this matter is
determined by State law. Whether parents may be ``represented'' by non-
attorney advocates at other stages of the process is not addressed by
the Act and also depends on State law. That said, under Sec.
300.321(a)(6), the IEP Team may include, at the discretion of the
parent or public agency, individuals who have knowledge or special
expertise regarding the child, including non-attorney advocates. While
these individuals are members of the IEP Team, their role is not to
``represent'' or speak for the parents.
Changes: None.
Comment: Several commenters expressed concern that proposed Sec.
300.512 could lead to confusion because not all States have a clear
position as to whether lay advocates can represent parents at due
process hearings. Some of these commenters noted that 10 States
currently bar lay advocates, 12 States permit lay advocates to
represent parents in due process hearings, and that the positions of
the remaining States are unclear. Given this disparity across States,
these commenters expressed concern that leaving the decision to States
could lead to more confusion and litigation, not less. A few commenters
questioned whether States would be required to amend their laws to
specify whether lay advocates can represent parties in due process
hearings.
One commenter stated that proposed Sec. 300.512 raises an issue to
the national level that is only a problem in a few jurisdictions, and
would lead to increased, and tangential, disputes. Another commenter
stated that
[[Page 73019]]
appropriate representation should remain a matter of State law, but
that the Department should not make the changes proposed to Sec.
300.512 in the NPRM.
Discussion: We disagree with commenters that confusion will result
from the changes reflected in proposed Sec. 300.512. To the contrary,
we expect that the effect of this amended provision will be to reduce
confusion and the potential for litigation because parties will know to
look to State law to determine whether non-attorneys can represent
parties in due process hearings; States will know they are free to
continue to permit or prohibit such representation. In the absence of
State law on this point, there is nothing in the Act or these
regulations that would prohibit non-attorneys with special knowledge or
training respecting the problems of children with disabilities from
representing parties in due process hearings. Nothing in proposed Sec.
300.512 requires States to adopt changes to State law to address this
issue.
Even though a relatively small number of States may prohibit non-
attorneys from representing parties in IDEA due process hearings, it is
still important for the Department to address this issue in its
regulations. In the absence of that clarification, parties may not
consider this issue at the time they are making decisions about how to
proceed in a due process hearing, or may mistakenly rely on the April
8, 1981 letter from Theodore Sky, Acting General Counsel of the
Department of Education, to the Honorable Frank B. Brouillet, in which
the Department interpreted section 615 of the Act and implementing
regulations to mean that attorneys and lay advocates may perform the
same functions at due process hearings. As noted in the NPRM, the
Department no longer interprets section 615 of the Act and implementing
regulations in this manner. Nothing in amended Sec. 300.512 should
increase disputes, or raise an issue that is not already an issue under
State law.
Changes: None.
Comment: One commenter noted that non-attorney lay advocates have
long represented underprivileged persons in a variety of administrative
hearings, including those concerning veterans' benefits, welfare
benefits, and social security benefits.
Discussion: The programs cited by the commenter are Federal
programs under which administrative hearings are conducted before the
Federal agency. Due process hearings under IDEA, however, are conducted
before a local or State hearing officer, as determined under State law.
Absent specific statutory authority to require States to permit non-
attorney representation, we do not believe we should impose such a
requirement on States.
Changes: None.
Comment: A number of commenters stated that in some States school
districts are represented by lay advocates and expressed concern that a
rule applying only to parents would be both inconsistent and unfair.
Some commenters stated that State regulations of the practice of law
should affect equally parents and school districts. One commenter
reported that lay advocates commonly represent a school district, but
are not subject to license-based sanctions or censure or held to the
legal profession's standards of candor and fair dealing. Others noted
that school districts are often ``represented'' at hearings by agency
representatives, including special education directors or other
administrators, rather than attorneys.
Discussion: We agree with the commenters that a further change is
needed to Sec. 300.512 to specify that State law controls whether non-
attorneys can represent any party in a due process hearing under the
Act. We are persuaded by commenters who pointed out that public
agencies also retain non-attorney advocates, and agree that the Act's
silence on the matter of non-attorney representation in a due process
hearing means that State law applies to all parties to a due process
hearing.
Changes: We have revised the exception clause in Sec.
300.512(a)(1) to specify that whether parties have the right to be
represented by non-attorneys at due process hearings is determined
under State law.
Comment: Several commenters stated that proposed Sec. 300.512
violates section 607 of the Act, which prohibits the adoption of any
regulation that procedurally or substantively lessens the protections
provided to children with disabilities in the regulations in effect on
July 20, 1983 unless the regulation reflects the clear and unequivocal
intent of Congress in legislation. These commenters noted that proposed
Sec. 300.512 was not in effect in 1983 and that no legislative change
has been made to the right ``to be accompanied and advised by counsel
and by individuals with special knowledge or training with respect to
the problems of children with disabilities.''
Discussion: We disagree that the change reflected in proposed Sec.
300.512 violates the provisions of section 607 of the Act. As the
regulations that were in effect on July 20, 1983 did not address
whether non-attorneys could ``represent'' parties to due process
hearings, the regulations in effect at that time did not embody a right
to representation by non-attorneys. Section 607 of the Act does not
prevent the Department from addressing rights that were not in the
regulations that were in effect on July 20, 1983.
Changes: None.
Comment: One commenter asked who proposed the changes to Sec.
300.512, on what data the changes were based, and whether the
Protection and Advocacy system was involved in proposing the changes to
this section.
Discussion: The Department proposed the changes to Sec. 300.512
because we came to accept, after the Delaware Supreme Court's decision
in In re Arons, 756 A.2d 867 (Del. 2000), cert. denied sub nom, Arons
v. Office of Disciplinary Counsel, 532 U.S. 1065 (2001), that the
interpretation of the regulations in the 1981 letter from the Acting
General Counsel of the Department was not persuasive, and that, because
the Act does not specifically address non-attorney representation in
due process hearings, State law controls whether non-attorneys can
represent parties to due process hearings. The Protection and Advocacy
system was not involved in proposing the change.
Changes: None.
Comment: One commenter expressed concern that the proposed changes
in Sec. 300.512 would increase the number of lawsuits against school
districts by requiring the use of a lawyer and court action.
Discussion: We disagree with this comment because Sec. 300.512
does not require the use of lawyers and does not concern court actions.
Changes: None.
Comment: A number of commenters stated that the issue of whether to
allow parents to be represented by non-lawyers in IDEA due process
hearings should be left to Congress to resolve. Many of these
commenters stated that given the pending reauthorization of the Act,
regulating on this topic is premature. Some commenters stated that this
issue should be reviewed in Congressional oversight hearings. Many
commenters argued that there is a need for review and consideration of
available research data, or that research should first be conducted on
the special education administrative due process systems of States and
districts, before a change is made. Others called for research on the
availability of legal representation for parents in due process
hearings before a change in the Department's policy is made.
[[Page 73020]]
Discussion: We disagree with commenters that this matter should be
left to Congress to resolve or that it is premature to address this
issue given the pending reauthorization of the Act. Participants in due
process hearings should understand that, under the current state of the
law, the Act does not prohibit States from determining whether parties
to due process hearings can be represented in those hearings by non-
attorneys. We also disagree with commenters that additional research is
needed to better understand the current state of State law on this
issue before amending Sec. 300.512. That said, we agree that
additional information about the availability of legal representation
for parties might be useful in helping Congress decide whether a change
in the statute is advisable.
Changes: None.
Comment: A number of commenters remarked that Congressional
inaction on the issue of lay advocate representation of parties in due
process hearings after the Arons decision indicates that Congress did
not mean to reverse the Department's longstanding policy that the Act
permits non-attorney representation.
Discussion: We do not agree that Congressional acquiescence in the
Department's prior interpretation can be inferred in this case. The
commenters' assessment of the reasons that Congress decided to take no
action in this regard is speculative. Congress was aware, at the time
of the 2004 reauthorization, that non-attorneys were not permitted to
represent parties in due process hearings in at least one State,
Delaware. Therefore, we cannot assume that Congressional inaction meant
that Congress viewed the Department's prior interpretation as
controlling. Lack of congressional action could also mean that Congress
believed that the Arons case was correctly decided, and that State law
should control the representational role of non-attorneys in IDEA due
process hearings.
Changes: None.
State Monitoring and Enforcement (Sec. 300.600)
Comment: None.
Discussion: In the course of our internal review of this provision,
we noted that Sec. 300.600(e) implied, but did not clearly state, that
the one-year timeline for correction begins with the State's
identification of the noncompliance.
Changes: We have revised Sec. 300.600(e) to specify that
correction of noncompliance must be completed no later than one year
after the State's identification of the noncompliance.
Comment: A few commenters acknowledged that there are some areas of
noncompliance that can be corrected within one year of identification;
however, the commenters expressed concern that the one-year timeline is
not realistic for findings of systemic noncompliance in substantive
areas such as the provision of FAPE, placement in the least restrictive
environment (LRE), and child find. Other commenters requested that
proposed Sec. 300.600(e) be revised to reflect ``degrees'' of
noncompliance. For example, one commenter suggested that some instances
of noncompliance (e.g., those related to a specific child's IEP
implementation) should not take one year to correct; whereas instances
of noncompliance related to systemic issues may take longer than one
year to correct. The commenter also questioned how proposed Sec.
300.600(e) will address situations involving longstanding
noncompliance. Lastly, one commenter agreed with the intent of proposed
Sec. 300.600(e) but requested that the timeline be modified to allow
for exceptions, such as allowing a State to initiate appropriate action
to correct noncompliance within one year of identification or as soon
as possible thereafter.
Discussion: Section 300.600(e) requires that all noncompliance
related to the implementation of Part B of the Act be corrected as soon
as possible, and in no case later than one year after the State's
identification of the noncompliance. These changes are necessary to
ensure that children with disabilities are provided with the FAPE to
which they are entitled so that they are able to make progress towards
meeting IEP goals and statewide achievement standards.
While we agree with the commenters that some areas of noncompliance
are more difficult to correct than others, we do not agree that the
timeline should be extended beyond one year. Our experience has been
that most States can correct noncompliance, including noncompliance
that is spread broadly across a system, in less than one year from
identification of the noncompliance. For example, States have required
the implementation of short-term correction strategies while they are
developing and implementing a plan for long-term change to ensure
sustained compliance. An example of a short-term correction strategy
coupled with a longer-term change might include contracting with speech
therapists to provide the speech pathology services needed by current
students while developing an in-district program to support speech
pathology assistants to become certified speech language pathologists.
Therefore, Sec. 300.600(e) provides an appropriate timeline for
correcting noncompliance, including systemic and long-standing
noncompliance. In cases where a State is unable to correct
noncompliance within one year of identification, as provided in Sec.
300.600(e), a State may enter into a compliance agreement with the
Department under section 457 of GEPA (Compliance Agreement), if the
Department deems a Compliance Agreement appropriate. The purpose of a
Compliance Agreement is to allow a State the time needed to correct
long-standing systemic noncompliance and come into full compliance with
the applicable requirements of the Federal program as soon as feasible,
but not later than three years from the date of the Compliance
Agreement. A Compliance Agreement allows a State to continue to receive
its grant award under Part B of the Act while it works toward achieving
full compliance under the terms of the agreement. Section 300.600(e),
when read together with the provisions in section 457 of GEPA,
adequately address the commenters' concerns.
We decline to amend the regulations to distinguish between or
stratify types of noncompliance. Any noncompliance with the provisions
in 34 CFR Part 300 is subject to the provisions in Sec. 300.600(e),
and, therefore, must be corrected as soon as possible, and in no case
later than one year from identification. However, we do agree with the
commenter who suggested that some instances of noncompliance, e.g.,
those related to child-specific IEP timelines, may be corrected far
more quickly than one year from identification. We expect that all
noncompliance in those instances will be corrected as soon as possible.
We recognize, though, that not all noncompliance can be corrected
immediately. In our more than 30 year experience in implementing Part B
of the Act, we have found that one year is a reasonable outside time
limit for States for correcting noncompliance.
For reasons previously stated in this preamble and because a State
must initiate appropriate corrective actions immediately upon the
identification of noncompliance, we decline to amend the regulations to
allow for exceptions to the timely correction timeline in Sec.
300.600(e) or to indicate that a State must only initiate appropriate
action to correct noncompliance within one year or as soon as possible
thereafter. The one-year timeline to correct noncompliance will ensure
that most cases of noncompliance are corrected in one year or less,
thereby facilitating the
[[Page 73021]]
provision of FAPE to children with disabilities.
Changes: None.
Comment: One commenter expressed concern that proposed Sec.
300.600(e) contradicts the logic of Sec. 300.604(b)(2)(ii), which
allows compliance agreements if the Secretary has reason to believe
that the State cannot correct the problem within one year.
Additionally, the commenter stated that proposed Sec. 300.600(e) will
be problematic for data collection and analysis purposes because the
strict one-year timeline may impede the SEA's ability to use the most
current LEA data in determining whether or not a systemic violation has
been corrected. The commenter noted that an SEA could erroneously
determine, based on outdated data, that an LEA has corrected its
noncompliance, allowing for the continuation of the violation and
ultimately poor student outcomes.
Discussion: We do not agree that the provisions in Sec. 300.600(e)
contradict the provisions in Sec. 300.604(b)(2)(ii). These two
regulatory sections address two separate and distinct processes. While
Sec. 300.600(e) addresses the standard for the timely correction of
noncompliance, Sec. 300.604(b)(2)(ii) addresses enforcement actions
available to the Secretary 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. In situations where the Secretary determines, for three or more
consecutive years, that a State needs intervention in implementing the
requirements of Part B of the Act, the Secretary may require a State to
enter into a Compliance Agreement if the Secretary has reason to
believe that the State cannot correct noncompliance that has existed
for multiple years, within one year.
We do not agree with the commenter that a one-year timeline will in
any way impede the use of data in determining the correction of
systemic noncompliance or contribute to diminished student outcomes.
Many States collect compliance data using a real-time database.
Therefore, correction of systemic noncompliance, or the continuation of
noncompliance, can be determined at any time.
Changes: None.
Comment: One commenter stated that there is no statutory authority
that requires correction of noncompliance within one year after the
State's identification. The commenter further noted that under
Indicator 15 in the State Performance Plan (SPP), a State must report
on the percentage of noncompliance corrected within one year of
identification and for any noncompliance not corrected within one year,
the State must describe those actions, including technical assistance
and enforcement actions the State has taken. The commenter noted that
proposed Sec. 300.600(e) appears to give a State two different
policies to follow with respect to noncompliance.
Discussion: Section 612(a)(11) of the Act and Sec. 300.149 require
States to ensure that each educational program for children with
disabilities administered within the State is under the general
supervision of individuals responsible for educational programs for
children with disabilities in the SEA. Section 616(a)(1)(C) of the Act
and section 441a(b)(3)(A) of GEPA require a State to monitor
implementation of Part B of the Act in each of its LEAs. Additionally,
Sec. 300.100, consistent with section 612(a) of the Act, requires that
all States receiving funds under Part B of the Act provide assurances
to the Secretary that the State has in effect policies and procedures
to ensure that the State meets the requirements of Part B of the Act,
including the monitoring and enforcement requirements in Sec. Sec.
300.600 through 300.602 and Sec. Sec. 300.606 through 300.608.
The Act is silent regarding a timeline for correction of
noncompliance with the requirements of Part B of the Act. However, the
Department recognizes that full, continuous compliance with Part B of
the Act may not be possible. Therefore, the Department allows States,
through Sec. 300.600(e), a reasonable timeframe for correcting
noncompliance; that is, any noncompliance must be corrected as soon as
possible and in no case later than one year from identification. It is
the Department's position that specifying a one-year timeline for
correcting noncompliance is necessary to ensure proper and effective
implementation of the requirements of Part B of the Act.
As noted previously, section 616(a)(3) of the Act requires the
Secretary to monitor the States, and the States to monitor their LEAs,
using quantifiable indicators in several priority areas, including a
State's exercise of its general supervisory authority. As required by
the Act, the Secretary established 20 indicators to monitor these
priority areas.
Indicator 15 in the SPP measures the effectiveness of a State's
general supervision by determining the percentage of noncompliance that
was corrected within one year of identification. It is the Department's
longstanding position, as reflected in Indicator 15 of the SPP, that
when a State identifies noncompliance with the requirements of Part B
of the Act by its LEAs, the noncompliance must be corrected as soon as
possible, and in no case later than one year after the State identifies
the noncompliance. The Department has established a target of 100
percent for Indicator 15, meaning States are expected to correct 100
percent of noncompliance as soon as possible, and in no case later than
one year. Further, in our experience, when a State makes a good faith
effort to correct noncompliance, the needed corrective actions can be
accomplished and their effectiveness verified within one year. Finally,
we expect that in the limited circumstances where correction does not
occur within one year of the State's identification, the State will
take specific enforcement actions with the LEA that are designed to
achieve compliance. Section 300.600(e) is consistent with the
Department's policy and guidance concerning the State's monitoring and
enforcement responsibilities under Part B of the Act and the reporting
requirements for Indicator 15.
Changes: None.
Comment: One commenter requested that the regulations include a
more uniform process for States to follow in making annual
determinations on the performance of LEAs because current practice
differs from State to State.
Discussion: It is the Department's position that States should have
some discretion in making annual determinations on the performance of
their LEAs and, therefore, decline to establish, in regulation, a
uniform process for making annual determinations under section
616(b)(2)(C)(ii)(I) of the Act. We have advised States that, at a
minimum, a State's annual determination process must include
consideration of the following: an LEA's performance on all SPP
compliance indicators (e.g., Indicators 9, 10, 11, 12, 13, 15, 16, 17,
and 20), whether an LEA submitted valid and reliable data for each
indicator, LEA-specific audit findings, and any uncorrected
noncompliance from any source. Additionally, we have advised States to
consider performance on results indicators, such as an LEA's graduation
and dropout rates, or the participation rate of students with
disabilities in State assessments.
Changes: None.
Comment: One commenter recommended requiring the participation of
federally funded Parent Training and Information Centers, Community
Parent Resource Centers, Protection and Advocacy Agencies, and
[[Page 73022]]
parent and advocacy organizations and coalitions in the Federal and
State monitoring processes.
Discussion: The Department encourages States to involve all
stakeholders, including those noted by the commenter, in monitoring the
implementation of Part B of the Act and these regulations. However,
regulating, as the commenter requested, is not necessary because the
commenter's concern is adequately addressed through other means. The
Department engaged a number of stakeholders, including parent and
advocacy organizations, in developing the Federal monitoring system,
and continues to ensure that States include broad stakeholder input in
the development of State targets and improvement activities.
Additionally, under Sec. Sec. 300.167 through 300.169, regarding the
State Advisory Panel, States must establish and maintain an advisory
panel with broad membership for the purpose of providing policy
guidance with respect to special education and related services for
children with disabilities in the State. Section 300.169 specifies many
duties of the State Advisory Panel, including advising the SEA of unmet
needs in the education of children with disabilities within the State,
developing corrective action plans to address findings identified in
Federal monitoring reports under Part B of the Act, and developing and
implementing policies relating to the coordination of services for
children with disabilities. All of these activities are integral to the
effective ongoing monitoring of the full implementation of Part B of
the Act.
Changes: None.
Timeframe for Public Reporting About LEA Performance Public Reporting
and Privacy (Sec. 300.602(b))
Comment: Several commenters requested that we change the public
reporting timeline in proposed Sec. 300.602(b)(1)(i)(A). Some of these
commenters argued that the Secretary does not have the statutory
authority to establish a timeline and that meeting the timeline would
be an excessive burden on States. Other commenters agreed with the
concept of a timeline and offered suggestions as to what the timeline
should be. Some commenters suggested that the regulations allow for
State-determined timelines; others recommended timelines ranging from
90 to 120 days following a State's submission of its APR to the
Secretary; still others recommended a 60 day timeline beginning with a
State's receipt of its annual determination from the Secretary.
Commenters stated that a State-determined timeline or a timeline
triggered by the State's receipt of it annual determination from the
Secretary would allow for a more careful analysis of individual LEA
data, thereby ensuring more accurate public reporting on the
performance of each LEA.
Discussion: Section 300.602(b)(1)(i)(A) implements section
616(b)(2)(C)(ii)(I) of the Act. Although the Act is silent on the
timeline for public reporting, section 607(a) of the Act provides that
the Secretary shall issue regulations to the extent that such
regulations are necessary to ensure that there is compliance with
specific requirements of the Act. We proposed a timeline for public
reporting in the NPRM because there was uncertainty in the field about
reporting requirements. Specifically, following the publication of the
Part B regulations in 2006, the Department received many informal
inquiries from SEA personnel and other interested parties regarding the
timeline for reporting information to the public about LEAs'
performance relative to its State's targets. It is still the
Department's position, after consideration of the comments, that
establishing a definitive timeline is necessary to ensure that each
State provides timely information to the public.
We agree, however, with the commenters who suggested that an
extended timeline would allow for more accurate analysis of LEA data,
thereby improving the quality of information reported to the public
and, ultimately, contributing to improved outcomes for children with
disabilities and their families. Additionally, extending the timeline
will reduce the burden associated with establishing a timeline for
public reporting. Therefore, we have revised the timeline in Sec.
300.602(b)(1)(i)(A) to require a State to report annually on the
performance of each LEA located in the State on the targets in the
State's SPP as soon as practicable but no later than 120 days following
the submission of its APR to the Secretary under Sec. 300.602(b)(2).
Changes: We have replaced the 60 day timeline in Sec.
300.602(b)(2) with the requirement that the State report on the
performance of each LEA located in the State on the targets in the
State's SPP as soon as practicable but no later than 120 days following
the State's submission of its APR to the Secretary.
Comment: One commenter suggested that changes to Sec. 300.602 are
not necessary and that issuing administrative guidance on public
reporting requirements, including timelines, would be more appropriate.
Discussion: Public accountability is served by requiring States to
make the documents referenced in Sec. 300.602(b)(1)(i)(B) available to
the public within a specific timeframe. A regulation provides a degree
of certainty on the timing of notice to the public that administrative
guidance would not. We are aware that a number of States did not post
public reports on LEA performance for FFY 2005 year by the time they
submitted their APRs on FFY 2006. Therefore, regulatory action, rather
than non-regulatory guidance is needed to ensure the proper and
effective implementation of the requirements of Part B of the Act.
Changes: None.
Comment: One commenter noted that proposed Sec.
300.602(b)(1)(i)(B) differs from current Sec. 300.602(b) in that it
refers to the State's Web site as opposed to the SEA's Web site. This
commenter requested that the Department clarify whether the information
must be posted on the SEA's or the State's Web site in instances where
SEAs have Web sites that are separate from State government Web sites.
Discussion: We agree that the reference in the regulations should
be to the SEA's Web site, rather than to the State's Web site, and have
made this change.
Changes: Sections 300.602(b)(1)(i)(B) and 300.606 have been revised
to require posting on the SEA's Web site, rather than the State Web
site.
Comment: Another commenter requested that the Department clarify
each State's obligation to make public any former reports on the
performance of the LEAs within the State as well as the time frame when
this information must be made available to the public.
Discussion: Neither the Act nor the regulations address the public
posting of reports on the performance of the LEAs that were issued
prior to the promulgation of these regulations. Posting historical
documents related to the implementation of the IDEA on an SEA's Web
site may be beneficial, but it is not required by the Act or the
regulations implementing Part B of the Act. The decision to post
historical documents and a timeline for posting these reports and
notices would be most appropriately decided by each State.
Changes: None.
Additional Information To Be Made Available to the Public (Sec.
300.602)
Comment: One commenter suggested that the requirement in Sec.
300.602(b)(1)(i)(B) to distribute the State's SPP, the State's APR, and
the State's annual reports on the performance of LEAs to the media and
public agencies represents an undue paperwork burden on SEAs and would
[[Page 73023]]
result in the excessive distribution of paper.
Discussion: Neither Sec. 300.602(b)(1)(i)(B) nor section
616(b)(2)(C)(ii)(I) of the Act requires the distribution of paper
copies of the SPP and APRs to the media and public agencies. Therefore,
we do not agree that implementing this requirement would result in an
excessive distribution of paper copies of these reports.
Changes: None.
Notifying the Public of Enforcement Actions (Sec. 300.606)
Comment: One commenter requested that the Department require SEAs
to report to the public any enforcement actions taken against their
LEAs pursuant to Sec. 300.604 because doing so would be consistent
with publication of enforcement actions against the State by the
Secretary of Education.
Discussion: Neither the Act nor these regulations require SEAs to
publicly report on enforcement actions taken against LEAs in the State.
The decision to report to the public on enforcement actions imposed on
an LEA is best left to each State to decide because individual LEA
circumstances vary across each State and no one set of requirements is
appropriate in every situation. For example, publicly reporting
enforcement actions taken against an LEA with limited numbers of
children with disabilities would not be appropriate if that public
reporting would in any way reveal personally identifiable information
of children with disabilities in that LEA. However, in the interest of
transparency and public accountability, the Department encourages
States, where appropriate, to report to the public on any enforcement
actions taken against LEAs under Sec. 300.604.
Changes: None.
Comment: One commenter stated that increasing public accountability
is important and requested that the regulations require States and
districts to publicly post and make available to the public the
Department's SPP/APR determination letters as well as Federal-or State-
required corrective actions and enforcement actions.
Discussion: We encourage States to post all information, including
corrective actions and enforcement actions related to their SPP/APR, on
their Web sites. However, regulating on this issue, as the commenter
requested, is not necessary because this information is posted on the
Department's Web site when the Department responds to States' SPP/APR
submission. These response letters are typically issued in June of each
year following the States' submission of their SPP/APR and posted on
the Department's Web site at: http://www.ed.gov/fund/data/report/idea/partbspap/index.html.
Changes: None.
Comment: One commenter requested that the phrase ``proposing to
take'' in proposed Sec. 300.606 be clarified or eliminated. The
commenter recommended using the language from page 27694 of the NPRM
stating that a State must provide public notice when the Secretary
``takes'' an enforcement action as a result of annual determinations
under Sec. 300.604.
Discussion: The language in Sec. 300.606 is accurate and we
decline to make the requested change for the following reasons. Section
300.606 implements section 616(e)(7) of the Act, and requires a State
that has received notice, under section 616(d)(2) of the Act, of a
pending enforcement action against the State under section 616(e) of
the Act to provide public notice of the pendency of that action.
Pursuant to section 616(d)(2)(B) of the Act, a State that has been
determined to ``need intervention'' for three consecutive years or
``need substantial intervention'' in implementing the requirements of
Part B of the Act, faces enforcement actions and is entitled to
reasonable notice and an opportunity for a hearing on such a
determination. If a State requests a hearing on a determination, the
Department's final determination would not be made until after that
hearing. In this situation, the enforcement action also would depend on
the outcome of the hearing and final determination. Therefore, in a
case such as this, the public must be notified that the Secretary is
proposing to take, but has not yet taken, an enforcement action
pursuant to Sec. 300.604.
Changes: None.
Comment: One commenter stated that the changes in proposed Sec.
300.606 are unnecessary because current Sec. 300.606 already requires
the public to be notified of an action ``taken pursuant to Sec.
300.604.'' The commenter stated that specifying in these regulations
that ``public notice'' consists of posting information on a Web site
and distributing information to the media and public agencies is
unnecessary to ensure compliance with IDEA.
Discussion: We disagree with the commenter. We have received
numerous inquiries regarding current Sec. 300.606 and whether this
provision requires public notification of each determination of ``needs
assistance'', ``needs intervention'' and ``needs substantial
intervention'' or whether it merely requires States to notify the
public of enforcement actions taken by the Secretary. We intend for
Sec. 300.606, as proposed in the NPRM, to clarify the public reporting
requirements by indicating that a State must provide public notice of
any enforcement action taken by the Secretary pursuant to Sec. 300.604
by posting the notice on the SEA's Web site and distributing the notice
to the media and through public agencies. This clarification is further
designed to minimize a State's reporting burden while providing the
public with appropriate notice of the actions taken by the Secretary as
a result of the determinations required by section 616(d) of the Act
and Sec. 300.603. For these reasons, we decline to make any regulatory
changes based on this comment.
Changes: None.
Subgrants to LEAs (Sec. 300.705(a))
Comment: A few commenters supported the proposed changes to Sec.
300.705(a) clarifying that States are required to make a subgrant under
section 611(f) of the Act to eligible LEAs, including public charter
schools that operate as LEAs, even if the LEA is not serving any
children with disabilities, because all LEAs have a responsibility to
identify and provide services to children with disabilities. The
commenters stated that the Department should ensure that a newly
created LEA not serving any children with disabilities in the first
year would still be eligible for some IDEA funds (e.g., based on
enrollment and the number of students in poverty) to allow the new LEA
to conduct child find activities and serve any students who are
identified as eligible for special education services later in the
year.
Some commenters opposed this provision and recommended that given
the current level of IDEA Federal funding, funds should be used for
direct services for students who are currently eligible for special
education and related services. Additionally, one of these commenters
expressed concern that Sec. 300.705(a) would require revising current
State and local funding processes, which would place accounting and
administrative burdens on both State and local systems. A few
commenters stated that the proposed change to Sec. 300.705(a) is
unnecessary because States have been successful in ensuring that small
school districts receive allocations when they enroll a student with a
disability. Lastly, one commenter suggested that the proposed changes
could be handled through administrative guidance, rather than
regulations.
[[Page 73024]]
Discussion: Section 300.705(a), consistent with section 611(f)(1)
of the Act, requires each State to provide subgrants to LEAs, including
public charter schools that operate as LEAs in the State, that have
established their eligibility under section 613 of the Act. Section
613(a) of the Act states that an LEA is eligible for assistance under
Part B of the Act for a fiscal year if the LEA submits a plan that
provides assurances to the SEA that the LEA meets each of the
conditions in section 613(a) of the Act. There is no requirement in
section 613(a) of the Act that an LEA must be serving children with
disabilities for an LEA to be eligible for a subgrant. Requiring States
to make a subgrant to all eligible LEAs, including public charter
schools that operate as LEAs, will ensure that LEAs have Part B funds
available if they are needed to conduct child find activities or to
serve children with disabilities who subsequently enroll or are
identified during the year. Regardless of the level of funding made
available for the Part B program under the Act, neither the Act nor the
implementing regulations require that Part B funds be spent only for
direct services for students who are currently eligible for special
education and related services. As in the past, LEAs may use Part B
funds for direct services to children with disabilities or for other
permissible activities, such as child find, professional development,
and more recently, for coordinated early intervening services in
accordance with Sec. 300.226.
The Grants to States and Preschool Grants for Children with
Disabilities Programs are forward-funded programs and LEAs generally
receive a subgrant at the beginning of the school year to cover the
costs of providing special education and related services to children
with disabilities during the school year. Ensuring that all LEAs,
including those that have no children with disabilities enrolled at the
beginning of the school year, have section 611 and section 619 funds
available will enable LEAs to meet their responsibilities under the Act
during the school year if a child with a disability subsequently
enrolls or a child is subsequently identified as having a disability.
We understand the commenter's concern that this change in the
regulations may require States to revise their procedures for
distributing Part B funds, and that there may be some administrative
burden associated with these changes. However, the importance of
ensuring consistency across States concerning the distribution of
section 611 and section 619 funds outweighs the potential
administrative burden. As previously stated in this preamble, making
these funds available to LEAs is critical to ensure that each LEA is
able to fulfill its responsibilities under the Act. We agree with
commenters that some States have been successful in ensuring small LEAs
receive allocations when they enroll students with disabilities after
the school year has begun. However, given that the Act and the
implementing regulations are silent on whether an SEA must make a
subgrant to an LEA that is not serving any children with disabilities,
clarification is necessary in Sec. Sec. 300.705(a) and 300.815 to
remove any ambiguity in this regard. Revising the regulations, rather
than remaining silent on the issue or issuing guidance, will ensure
that all States treat LEAs in the same manner, including those LEAs
that are not serving any children with disabilities, when allocating
Part B funds.
Changes: None.
Comment: A few commenters recommended that the proposed regulations
be modified to give States the option of making subgrants to eligible
LEAs, including public charter schools that operate as LEAs, when an
LEA is not currently serving any students with disabilities. The
commenters stated that States have different needs and some have
policies in place to help new charter schools meet their child find
obligations.
Discussion: We recognize that States are in a unique position to
assist new LEAs, including charter schools that operate as LEAs.
However, requiring States to make a subgrant under section 611(f) and
section 619(g) of the Act to eligible LEAs, including public charter
schools that operate as LEAs, even if the LEA is not serving any
children with disabilities, ensures consistency across States and an
equitable distribution of Part B funds. We also recognize that some
States may not assign child find responsibility to public charter
schools that operate as LEAs. However, all LEAs, including public
charter schools that operate as LEAs, have other responsibilities under
the IDEA that may need to be carried out during the school year, such
as serving a child with a disability who is identified during the
school year. It is the Department's position that it is necessary to
require States to make (rather than give them the option of making)
subgrants to eligible LEAs not currently serving any students with
disabilities, to ensure that all States treat LEAs in the same manner,
including those LEAs that are not serving any children with
disabilities, when allocating Part B funds.
Changes: None.
Comment: One commenter recommended that the Department withdraw the
proposed changes and add, if necessary, a new paragraph in Sec. Sec.
300.705 and 300.815 that would allow a new or expanded charter school
to receive an allocation under Sec. Sec. 300.705 and 300.815,
respectively, if the school demonstrates to the SEA that the school is
serving children with disabilities in accordance with the requirements
of Part B of the Act within the time frame established by the SEA under
34 CFR 76.788(b)(2)(i), which provides that once a charter school LEA
has opened or significantly expanded its enrollment, the charter school
LEA must provide actual enrollment and eligibility data to the SEA at a
time the SEA may reasonably require.
Discussion: We do not agree that the change suggested by the
commenter is necessary. An eligible public charter school LEA has the
responsibility to meet the requirements of the Act during the school
year regardless of whether the LEA is serving children with
disabilities at the time the subgrant is calculated based on actual
enrollment and eligibility data. In recognition of these
responsibilities, requiring an SEA to make an initial subgrant to a new
or expanded public charter school LEA is appropriate, even if it is not
serving any children with disabilities at the time actual enrollment
and eligibility data are provided to the SEA.
Changes: None.
Reallocation of LEA Funds (Sec. 300.705(c))
Comment: One commenter supported proposed Sec. 300.705(c). Another
commenter requested clarification as to the types of activities that
could be supported with the Part B funds that an LEA does not need to
provide FAPE, if a State chooses to retain the funds, instead of
reallocating the funds to other LEAs in the State. One commenter
recommended that the State be authorized to reallocate the funds
intended to be allocated to an LEA or retain them for State-level
activities only after consulting with the LEA to assess the LEA's needs
and after determining that the LEA does not need the funds.
Discussion: A State, under Sec. 300.705(c), may use funds from an
LEA that does not need the funds for any allowable activities permitted
under Sec. 300.704, to the extent that the State has not reserved the
maximum amount of funds it is permitted to reserve for State-level
activities pursuant to Sec. 300.704(a) and (b). To the extent the
State has not reserved the maximum
[[Page 73025]]
amount for administration, the State may use those funds for
administrative costs consistent with Sec. 300.704(a). To the extent
the State has not reserved the maximum amount of funds available for
other State-level activities, the State may use those funds for any
allowable activities permitted under Sec. 300.704(b)(3) and (4)
including, but not limited to, technical assistance, personnel
preparation, and assisting LEAs in providing positive behavioral
interventions and supports. Additionally, if the State has opted to
finance a high-cost fund under Sec. 300.704(c) and has not reserved
the maximum amount available for the fund, the State may use those
funds for the LEA high-cost fund consistent with Sec. 300.704(c).
In response to the commenter that recommended that the State be
permitted to reallocate funds only after consulting with the LEA to
assess the LEA's needs, nothing in these regulations prohibits a State
from working with an LEA to assess the needs of the LEA before
determining that the LEA will not be able to use the funds prior to the
end of the carryover period. However, we believe it would be burdensome
and unnecessary to require that an SEA consult with an LEA to assess
the LEA's needs prior to a reallocation of the LEA's remaining
unobligated funds. The LEA would have already had sufficient time and
incentive during the carryover period of availability to assess its own
needs and make appropriate obligations for needed expenditures.
Changes: None.
Subgrants to LEAs (Sec. 300.815)
Comment: One commenter supported the changes proposed to Sec.
300.815. Another commenter opposed this provision, which would require
States to allocate funds under section 619 of the Act to an LEA even if
the LEA is not serving children with disabilities; this commenter
stated that the funds should be directed toward serving preschool
children with disabilities.
Discussion: Section 300.815, consistent with section 619(g) of the
Act, requires that each State provide subgrants to LEAs, including
public charter schools that operate as LEAs in the State, that are
responsible for providing education to children aged three through five
years and have established their eligibility under section 613 of the
Act. Section 613(a) of the Act states that an LEA is eligible for
assistance under Part B of the Act for a fiscal year if the LEA submits
a plan that provides assurances to the SEA that the LEA meets each of
the conditions in section 613(a) of the Act. There is no requirement in
section 613(a) of the Act that an LEA must be serving preschool
children with disabilities for an LEA to be eligible for a subgrant.
Requiring States to make a subgrant to all eligible LEAs responsible
for providing education to preschool children, including public charter
schools that operate as LEAs, will help ensure that LEAs have Part B
funds available if they are needed to conduct child find activities or
to serve preschool children with disabilities who subsequently enroll
or are identified during the school year. As in the past, LEAs may use
section 619 funds for direct services to preschool children with
disabilities or for other permissible activities, such as child find
and professional development.
Changes: None.
Reallocation of LEA Funds (Sec. 300.817)
Comment: One commenter supported the changes reflected in proposed
Sec. 300.817. Another commenter opposed the changes, stating that the
time and effort needed for States to monitor LEAs as provided in Sec.
300.817 could be better used elsewhere.
Discussion: We understand the commenter's concern that this
provision will require States to revise their procedures for monitoring
the obligation of funds. However, requiring an SEA, after it
distributes Part B funds to an LEA that is not serving any children
with disabilities, to determine, within a reasonable period of time
prior to the end of the carryover period in Sec. 300.709, whether the
LEA has obligated those funds will prevent the funds from lapsing and
enable the State to use those funds for other purposes. Therefore, the
benefit of this provision outweighs the potential administrative
burden.
Changes: None.
Executive Order 12866
Costs and Benefits
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive Order and review by OMB. Section 3(f)
of Executive Order 12866 defines a ``significant regulatory action'' as
an action likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more, or adversely affect a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities in a material way (also referred to as an
``economically significant'' rule); (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impacts of entitlement grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. The Secretary has determined that this regulatory
action is significant under section 3(f)(4) of the Executive Order.
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action as required by Executive Order
12866.
Summary of Public Comments
The Department received one comment on the analysis of costs and
benefits included in the NPRM. These commenters suggested that the
Department should only propose new regulations in conjunction with the
reauthorization of the Act because any subsequent regulations would
require States to amend their regulations and this process is expensive
and time consuming. These comments were considered in conducting the
analysis of the costs and benefits of the final regulations. The
Department's estimates and assumptions included in the analysis are
described in the following paragraphs.
1. Summary of Costs and Benefits
The potential costs associated with these final regulations are
those resulting from statutory requirements and those we have
determined are necessary to administer these programs effectively and
efficiently. In assessing the potential costs and benefits--both
quantitative and qualitative--of this regulatory action, we have
determined that the benefits would justify the costs. We also have
determined that this regulatory action will not unduly interfere with
State, local, private, and tribal governments in the exercise of their
governmental functions.
The following is an analysis of the costs and benefits of the most
significant changes reflected in these final regulations. In conducting
this analysis, the Department examined the extent the changes made by
these regulations add to or reduce the costs for States, LEAs, and
others, as compared to the costs of implementing the current Part B
program regulations. Variations in practice from State to State and a
lack of pertinent data make it difficult to predict the effect of these
changes. However, based on the following analysis, the Secretary has
concluded
[[Page 73026]]
that the changes reflected in the final regulations will not impose
significant net costs on the States, LEAs, and others.
Parental Revocation of Consent for Special Education Services
(Sec. Sec. 300.9 and 300.300)
Section 300.300(b)(4) allows a parent, at any time subsequent to
the initial provision of special education and related services, to
revoke consent in writing for the continued provision of special
education and related services. Once the parent revokes consent for
special education and related services the public agency must provide
the parent with prior written notice consistent with Sec. 300.503. The
final regulations do not allow public agencies to take steps to
override a parent's refusal to consent to further services.
We do not agree with the commenters who recommended that the
Department postpone making these regulatory revisions until the next
reauthorization of IDEA. The changes reflected in Sec. Sec. 300.9 and
300.300 were made in response to comments received on the consent
provisions proposed in the notice of proposed rulemaking for Part B of
the Act that was published in the Federal Register on June 21, 2005 (70
FR 35782), including comments requesting that we address situations
when a child's parent wants to discontinue special education and
related services because he or she believes that the child no longer
needs those services. In response to these comments, we indicated that
we would solicit comment on this suggested change in a subsequent
notice of proposed rulemaking. While States may have to revise some of
their regulations to conform with the changes in Sec. Sec. 300.9 and
300.300, the provisions related to parental revocation of consent may
reduce burden on, and costs to, LEAs by relieving them of the
obligation to override a parent's refusal to consent subsequent to the
initiation of special education services through informal means or
through due process procedures. Therefore, the Department's position is
that allowing parents to revoke consent for special education and
related services will not have a significant cost impact on States,
LEAs, or others.
2. Clarity of the Regulations
The Department received one comment concerning the clarity of the
regulations proposed in the NPRM. The commenter stated that the
regulations are written at an advanced reading level, not written in
plain language, and are in a font that is too small. We have reviewed
the regulations to ensure that they are easy to understand and written
in plain language. Additionally, the final regulations will be posted
on the Department's Web site and the Department's Web site meets the
accessibility standards included in section 508 of the Rehabilitation
Act of 1973, as amended.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), we
have assessed the information collections in these regulations that are
subject to review by the Office of Management and Budget. Based on this
analysis, the Secretary has concluded that these amendments to the Part
B IDEA regulations do not impose additional information collection
requirements. The changes to Sec. 300.602(b)(1)(i)(B) add the State's
APR to the list of documents that a State must make available through
public means, and specify that the SEA must make the State's SPP/APR
and the State's annual reports on the performance of each LEA in the
State available to the public by posting the documents on the SEA's Web
site and distributing the documents to the media and through public
agencies. Each State already is required to report to the Secretary on
the annual performance of the State as a whole in the APR. We expect
the additional time for reporting to the public to be minimal because
the APR is a completed document. Additionally, this reporting
requirement is within the established reporting and recordkeeping
estimate of current information collection 1820-0624 (71 FR 46751-
46752). States already are required by current Sec. 300.602(a) and
(b)(1)(i)(A) to analyze the performance of each LEA on the State's
targets, and to report annually to the public on the performance of
each LEA in meeting the targets. Requiring that these documents be
posted on the SEA's Web site and be distributed to the media and
through public agencies merely adds specificity about the means of
public reporting. The additional time for reporting to the public
through these means will be minimal and is within the established
reporting and recordkeeping estimate of current information collection
1820-0624 (71 FR 46751-46752).
Intergovernmental Review
This program is subject to requirements of Executive Order 12372
and the regulations in 34 CFR part 79. The objective of the Executive
Order is to foster an intergovernmental partnership and a strengthened
federalism by relying on processes developed by State and local
governments for coordination and review of Federal financial
assistance.
In accordance with this order, we intend this document to provide
early notification of the Department's specific plans and actions for
these programs.
Assessment of Educational Impact
In the NPRM, and in accordance with section 411 of GEPA, 20 U.S.C.
1221e-4, we requested comments on whether the proposed regulations
would require transmission of information that any other agency or
authority of the United States gathers or makes available.
Based on the response to the NPRM and on our own review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or
portable document format (PDF) at the following site: http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO) toll free at 1-800-293-4922; or in the
Washington, DC area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at http://www.gpoaccess.gov/nara/index.html.
List of Subjects in 34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs--education, Privacy, Private
schools, Reporting and recordkeeping requirements.
Dated: November 21, 2008.
Margaret Spellings,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends title
34 of the Code of Federal Regulations as follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
0
1. The authority citation for part 300 continues to read as follows:
[[Page 73027]]
Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise
noted.
* * * * *
0
2. Section 300.9 is amended by adding a new paragraph (c)(3).
The addition reads as follows:
Sec. 300.9 Consent.
* * * * *
(c) * * *
(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.
* * * * *
0
3. Section 300.177 is revised to read as follows:
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)
0
4. Section 300.300 is amended by:
0
A. Revising paragraphs (b)(3) and (b)(4).
0
B. In paragraph (d)(2), removing the words ``paragraph (a)'' and
inserting, in their place, the words ``paragraphs (a), (b), and (c)''.
0
C. In paragraph (d)(3), adding after the words ``paragraphs (a)'' the
words ``, (b), (c),''.
The revision reads as follows:
Sec. 300.300 Parental consent.
* * * * *
(b) * * *
(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.
* * * * *
0
5. Section 300.512 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 300.512 Hearing rights.
(a) * * *
(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;
* * * * *
0
6. Section 300.600 is amended by:
0
A. Revising paragraph (a).
0
B. Adding a new paragraph (e).
The revision and addition read as follows:
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).
* * * * *
(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.
* * * * *
0
7. Section 300.602(b)(1)(i) is revised to read as follows:
Sec. 300.602 State use of targets and reporting.
* * * * *
(b) * * *
(1) * * *
(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)
[[Page 73028]]
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.
* * * * *
0
8. Section 300.606 is revised to read as follows:
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))
0
9. Section 300.705 is amended by:
0
A. Revising paragraph (a).
0
B. In paragraph (b)(2)(ii), removing the word ``and'' at the end of the
paragraph.
0
C. In paragraph (b)(2)(iii), removing the punctuation ``.'' and adding,
in its place, the words ``; and''.
0
D. Adding a new paragraph (b)(2)(iv).
0
E. Revising paragraph (c).
The revisions and addition read as follows:
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) * * *
(2) * * *
(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.
* * * * *
(c) Reallocation of LEA funds. (1) If an SEA determines that an LEA
is adequately providing FAPE to all children with disabilities residing
in the area served by that agency with State and local funds, the SEA
may reallocate any portion of the funds under this part that are not
needed by that LEA to provide FAPE, to other LEAs in the State that are
not adequately providing special education and related services to all
children with disabilities residing in the areas served by those other
LEAs. The SEA may also retain those funds for use at the State level to
the extent the State has not reserved the maximum amount of funds it is
permitted to reserve for State-level activities pursuant to Sec.
300.704.
(2) After an SEA distributes funds under this part to an eligible
LEA that is not serving any children with disabilities, as provided in
paragraph (a) of this section, the SEA must determine, within a
reasonable period of time prior to the end of the carryover period in
34 CFR 76.709, whether the LEA has obligated the funds. The SEA may
reallocate any of those funds not obligated by the LEA to other LEAs in
the State that are not adequately providing special education and
related services to all children with disabilities residing in the
areas served by those other LEAs. The SEA may also retain those funds
for use at the State level to the extent the State has not reserved the
maximum amount of funds it is permitted to reserve for State-level
activities pursuant to Sec. 300.704.
* * * * *
0
10. Section 300.815 is revised to read as follows:
Sec. 300.815 Subgrants to LEAs.
Each State that receives a grant under section 619 of the Act for
any fiscal year must distribute all of the grant funds the State does
not reserve under Sec. 300.812 to LEAs (including public charter
schools that operate as LEAs) in the State that have established their
eligibility under section 613 of the Act. Effective with funds that
become available on July 1, 2009, each State must distribute funds to
eligible LEAs that are responsible for providing education to children
aged three through five years, including public charter schools that
operate as LEAs, even if the LEA is not serving any preschool children
with disabilities.
(Authority: 20 U.S.C. 1419(g)(1))
0
11. Section 300.816 is amended by:
0
A. In paragraph (b)(2), removing the word ``and''.
0
B. In paragraph (b)(3), removing the punctuation ``.'' and adding, in
its place, the words ``; and''.
0
C. Adding a new paragraph (b)(4) to read as follows:
Sec. 300.816 Allocations to LEAs.
* * * * *
(b) * * *
(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.
* * * * *
0
12. Section 300.817 is revised to read as follows:
Sec. 300.817 Reallocation of LEA funds.
(a) If an SEA determines that an LEA is adequately providing FAPE
to all children with disabilities aged three through five years
residing in the area served by the LEA with State and local funds, the
SEA may reallocate any portion of the funds under section 619 of the
Act that are not needed by that LEA to provide FAPE, to other LEAs in
the State that are not adequately providing special education and
related services to all children with disabilities aged three through
five years residing in the areas served by those other LEAs. The SEA
may also retain those funds for use at the State level to the extent
the State has not reserved the maximum amount of funds it is permitted
to reserve for State-level activities pursuant to Sec. 300.812.
(b) After an SEA distributes section 619 funds to an eligible LEA
that is not serving any children with disabilities aged three through
five years, as provided in Sec. 300.815, the SEA must determine,
within a reasonable period of time prior to the end of the carryover
period in 34 CFR 76.709, whether the LEA has obligated the funds. The
SEA may reallocate any of those funds not
[[Page 73029]]
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))
[FR Doc. E8-28175 Filed 11-28-08; 8:45 am]
BILLING CODE 4000-01-P