[Code of Federal Regulations] [Title 32, Volume 1] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR57.6] [Page 281-292] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE PART 57--PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES TO ELIGIBLE DOD DEPENDENTS IN OVERSEAS AREAS--Table of Contents Sec. 57.6 Procedures. (a) The procedures for early intervention services for infants and toddlers with disabilities and their families are prescribed in Appendix A to this part. (b) The procedures for educational programs and services for children with disabilities, ages 3 to 21, inclusive, are prescribed in Appendix B to this part. (c) The procedures for conducting hearings are prescribed in Appendix F to this part. Appendix A to Part 57--Procedures for the Provision of Early Intervention Services for Infants and Toddlers With Disabilities and Their Families A. Requirements for an Early Intervention Program (EIP) 1. All eligible infants and toddlers with disabilities from birth through age 2 and their families shall receive early intervention services, as follows: a. In school years 1991 through 1994, the Department of Defense planned and continues to develop a comprehensive, coordinated, multidisciplinary program of early intervention services for infants and toddlers with disabilities among DoD entities involved in providing such services. b. In school year 1994 through 1995, the Department of Defense implemented and shall continue to implement the following program components described in paragraph A.1.a. of this Appendix: (1) Multidisciplinary assessments. (2) IFSPs. (3) Service coordination. c. In school year 1995 through 1996, the Department of Defense shall implement the program described in paragraph A.1.a. of this Appendix. \1\ --------------------------------------------------------------------------- \1\ The EIP shall be continuously implemented. --------------------------------------------------------------------------- 2. Early intervention services shall be provided in the natural environment. 3. Parents of infants and toddlers with disabilities are to be full and meaningful participants in the EIP. B. Military Department Responsibilities Each Military Department shall develop and implement in its assigned geographic area a system to provide for the following: 1. A comprehensive child find procedure coordinated with the DoDDS child find system and primary referral sources such as the child development center and the pediatric clinic. 2. Administration and supervision of EIPs and services. 3. Identification of available resources and coordination with those resource providers, including the DoD Components, who routinely provide services to infants and toddlers without disabilities and their families. 4. Procedures to provide timely services for infants and toddlers with disabilities and their families. [[Page 282]] 5. Procedures to resolve inter-Component disputes about the delivery of early intervention services. 6. Procedures to collect and report data reflecting the number of infants and toddlers and their families served, the types of services provided, and other information required by the USD(P&R) implementation of early intervention services. 7. Multidisciplinary, comprehensive, and functional assessment of the unique strengths and needs of infants or toddlers and the identification of services to meet those needs. 8. Procedures for a family-directed assessment to determine resources, priorities, and concerns of a family and to identify services necessary to enhance a family's capacity to meet the child's needs. 9. An IFSP that details the early intervention services and the coordination of those services. 10. A public awareness program focusing on early identification of infants and toddlers with disabilities. 11. A central directory that includes a description of the early intervention services and other relevant resources available in each military community overseas. 12. Information to parents about their EIP procedural safeguards. 13. Establishment of ICCs at appropriate levels. Memberships shall include parents and the DoD Components who are involved in the delivery of early intervention services. 14. Policies and procedures for the establishment and maintenance of standards to ensure that personnel necessary to carry out the EIP are prepared and trained. C. Eligibility Infants and toddlers with disabilities from birth through age 2 are eligible for early intervention services because they meet one of the following criteria: 1. The child is experiencing a developmental delay as measured by diagnostic instruments and procedures of 2 standard deviations below the mean in at least one area, or by a 25 percent delay in at least one area on assessment instruments that yield scores in months, or a developmental delay of 1.5 standard deviations below the mean in two or more areas, or by a 20 percent delay on assessment instruments that yield scores in months in two or more of the following areas of development: Cognitive, physical, communication, social or emotional, or adaptive. 2. The child has a diagnosed physical or mental condition which has a high probability of resulting in developmental delay; e.g., chromosomal disorders or genetic syndromes. D. IFSP 1. Each military medical department shall develop and implement procedures to ensure that an IFSP is developed by a multidisciplinary team including the parents of each infant or toddler with a disability who meets the eligibility criteria in section C.1. of this appendix. 2. Meetings to develop and review the IFSP must include the following participants: a. The parent or parents of the child. b. Other family members, as requested by the parent, if possible. c. An advocate outside of the family, if the parent requests that person's participation. d. The EIP services coordinator who has worked with the family since the initial referral of the child or who has been designated as ``responsible for the implementation of the IFSP.'' e. The person(s) directly involved in conducting the evaluations and assessments. f. As appropriate, persons who shall provide services to the child or family. 3. If a person listed in section D.2. of this appendix is unable to attend a meeting, arrangements must be made for the person's involvement through other means, including the following: a. Participating in a telephone conference call. b. Having a knowledgeable representative attend the meeting. c. Making pertinent records available at the meeting. 4. The IFSP shall be written in a reasonable time after assessment and shall contain the following: a. A statement of the child's current developmental levels including physical, cognitive, communication, social or emotional, and adaptive behaviors based on acceptable objective criteria. b. A statement of the family's resources, priorities, and concerns on enhancing the child's development. c. A statement of the major outcomes expected to be achieved for the child and the family. Additionally, the statement shall contain the criteria, procedures, and timeliness used to determine the degree to which progress toward achieving the outcomes is being made and whether modification or revision of the outcomes and services are necessary. d. A statement of the specific early intervention services necessary to meet the unique needs of the child and the family including the frequency, intensity, and method of delivering services. e. A statement of the natural environments in which early intervention services shall be provided. f. The projected dates for initiation of services and the anticipated duration of those services. [[Page 283]] g. The name of the EIP service coordinator. h. The steps to be taken supporting the transition of the toddler with a disability to preschool or other services. 5. The IFSP shall be evaluated at least once a year and the family shall be provided an opportunity to review the plan at 6-month intervals (or more frequently, based on the child and family needs). 6. The contents of the IFSP shall be explained to the parents and an informed, written consent from the parents shall be obtained before providing early intervention services described in that plan. 7. With the parent's consent, early intervention services may begin before the completion of the evaluation and assessment when it has been determined by a multidisciplinary team that a service is needed immediately by the child and/or the child's family. Although all assessments have not been completed, an IFSP must be developed before the start of services. The remaining assessments must then be completed in a timely manner. 8. If a parent does not provide consent for participation in all early intervention services, the services shall still be provided for those interventions to which a parent does give consent. E. Procedural Safeguards in the EIP 1. Parents of infants and toddlers with disabilities are afforded the following procedural safeguards to ensure that their children receive appropriate early intervention services: a. The timely administrative resolution of parental complaints, including hearing procedures in appendix F to this part. b. The right to confidentiality of personally identifiable information under DoD Directive 5400.11.\2\ --------------------------------------------------------------------------- \2\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. --------------------------------------------------------------------------- c. The right to written notice and consent to the release of relevant information outside the Department of Defense. d. The right to determine whether they, their child, or other family members shall accept or decline any early intervention services without jeopardizing other early intervention services. e. The opportunity to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP. f. The right to prior written notice when the EIP multidisciplinary team proposes, or refuses, to initiate or change the identification, evaluation, placement, or provision of early intervention services to the infant or toddler with a disability. g. The right to prior written notice in their native language, unless it clearly is not possible to do so, which informs them of all procedural safeguards. h. During the pendency of any proceeding or action involving a complaint, unless the EIP and the parents otherwise agree, the child shall continue to receive the appropriate early intervention services currently being provided, or, if applying for initial services, shall receive the services not in dispute. 2. Parents shall be advised of their rights to due process, as defined in appendix F to this part. Appendix B to Part 57--Procedures for Educational Programs and Services for Children With Disabilities, Ages 3 to 21, Inclusive A. Identification and Screening It is the responsibility of school officials of the DoDDS to locate, identify, and with the consent of a child's parent, evaluate all children who are eligible to enroll in the DoDDS under DoD Directive 1342.13 \1\ who may require special education and related services. --------------------------------------------------------------------------- \1\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. --------------------------------------------------------------------------- 1. Procedures for Identification and Screening. The DoDDS officials shall conduct the following activities to determine if a child needs special education and related services: a. Screen educational records. b. Screen students using system-wide or other basic skill tests in the areas of reading, math, and language arts. c. Screen school health data such as reports of hearing, vision, speech, or language tests and reports from healthcare personnel about the health status of a child. d. Analyze school records to obtain pertinent information about the basis for suspensions, exclusions, withdrawals, and disciplinary actions. e. In cooperation with the Military Departments, conduct on-going child-finding activities and publish, periodically, any information, guidelines, and direction on child-find activities for eligible children with disabilities, ages 3 to 21, inclusive. f. Coordinate the transition of children from early intervention to preschool with the Military Services. 2. Referral of a Child for Special Education or Related Services. The DoDDS officials, MRS providers, or others who suspect that a child has a possible disabling condition shall refer that child to the CSC. [[Page 284]] B. Assessment and Evaluation Any eligible child who is referred to a CSC shall receive a full and comprehensive diagnostic evaluation of educational needs. An evaluation shall be conducted before an IEP is developed or placement is made in a special education program. 1. Procedures for Assessment and Evaluation. A CSC shall ensure that the following elements are included in a comprehensive assessment and evaluation of a child: a. Assessment of visual and auditory acuity. b. A plan to assess the type and extent of the disability. A child shall be assessed in all areas related to the suspected disability. When necessary, the assessment plan shall include the following: (1) Assessment of the level of functioning academically, intellectually, emotionally, socially, and in the family. (2) Observation in an educational environment. (3) Assessment of physical status including perceptual and motor abilities. (4) Assessment of the need for transition services for students 14 years and older, the acquisition of daily living skills, and functional vocational assessment. c. The involvement of parents, under this part. d. The use of all locally available community, medical, and school resources to accomplish the assessment. At least one specialist with knowledge in the area of the suspected disability shall be a member of the multidisciplinary assessment team. e. The requirement that each assessor prepare an individual assessment report that describes the instruments and techniques used, the results of the testing, and the relationship of those findings to educational functioning. f. The inclusion of a description of the problem area constituting the basis for an MRS referral. 2. Standards for Assessment Selection and Procedures. All DoD elements, including the CSC and MRS providers, shall ensure that assessment materials and evaluation procedures comply, as follows: a. Selected and administered so as not to be racially or culturally discriminatory. b. Administered in the native language or mode of communication of the child unless it clearly is not possible to do so. c. Validated for the specific purpose for which they are used or intended to be used. d. Administered by trained personnel in compliance with the instructions of the testing instrument. e. Administered such that no single procedure is the sole criterion for determining an appropriate educational program for a child with a disability. f. Selected to assess specific areas of educational needs and strengths and not merely to provide a single general intelligence quotient. g. Administered to a child with impaired sensor, motor, or communication skills so that the results reflect a child's actual ability or level of achievement, and simply not the impaired skill itself. 3. Determination of Eligibility for Special Education and Related Services. The CSC shall be convened to determine the eligibility of a child for special education and related services. The CSC shall do the following: a. Ensure that the full comprehensive evaluation of a child is accomplished by a multidisciplinary team. The team shall be comprised of teachers or other specialists with knowledge in the area of the suspected disability. b. Meet as soon as possible after a child has been assessed to determine the eligibility of the child for services. c. Afford the child's parents the opportunity to participate in the CSC eligibility meeting. d. Issue a written eligibility report that contains the following: (1) A description of the nature of the child's disabling condition. (2) A synthesis of the formal and informal findings of the multidisciplinary assessment team of the child's academic progress. (3) A summary of information from the parents, the child, or other persons having significant previous contact with the child. (4) A determination of eligibility statement. (5) A list of the educational areas affected by a child's disability and a description of a child's educational needs. 4. Reevaluation for Eligibility for Special Education and Related Services. School officials shall provide a comprehensive reevaluation of a child with a disability every 3 years, or more frequently, if conditions warrant. The scope and type of the comprehensive reevaluation shall be determined individually based on a child's performance, behavior, and needs during the reevaluation. C. Individualized Education Program (IEP) The DoDDS officials shall ensure that the CSC develops and implements an IEP for each child with a disability who is enrolled in the DoDDS or is placed in another institution by the DoDDS. 1. The CSC Meeting for the Development and Implementation of an IEP. The CSC shall establish and convene a meeting to develop, review, or revise the IEP of a child with a disability. That meeting shall be scheduled as soon as possible following a determination by the school or area CSC that the child is eligible for special education and related services. The meeting participants shall, minimally, include the following: [[Page 285]] a. A principal or school representative other than the child's teacher who is qualified to provide or supervise the provision of special education. b. The child's teacher. c. A special education teacher. d. One or both of the child's parents. e. The child, if appropriate. f. For a child with a disability who has been evaluated for the first time, a representative of the evaluation team who is knowledgeable about the evaluation procedures used and is familiar with the results of the evaluation. g. Other individuals invited at the discretion of the parent or school. 2. Requirements for the Development of the IEP. The CSC shall prepare the IEP with the following: a. A statement of the child's present levels of educational performance. b. A statement of annual goals including short-term instructional objectives. c. Objective criteria for determining, at least annually, whether the educational objectives are being achieved. d. A statement of the physical education program provided in one of the following settings: (1) In the regular education program. (2) In the regular education program with adaptations, modifications, or the use of assistive technology. (3) Through specially designed instruction based on the goals and objectives included in the IEP. e. A statement of the transition services beginning at age 14 and annually, thereafter. When appropriate, include a statement of the inter-Agency responsibilities or linkages (or both) before the student leaves the school setting. If a specially designed instructional program is required, include the goals and objectives in the IEP. f. A statement of special transportation requirement. g. A statement of the amount of time a week that each special education and related service shall be provided to the child. h. The extent to which the child shall participate in regular educational programs, including the following: (1) The projected date for the initiation and the anticipated length of IEP activities and services. (2) Any statements requiring an adjusted school day or an extended school year program. i. A statement of the vocational education program for secondary students. If a specially designed instructional program is required, the necessary goals and objectives in the IEP shall be included. 3. Requirements for the Implementation of the IEP. The DoDDS CSC shall: a. Obtain parental agreement and signature before implementation of the IEP. b. Provide a copy of the child's IEP to the parents. c. Ensure that the IEP is in effect before a child receives special education and related services. d. Review and revise the IEP for each child at least annually in a CSC meeting. e. Accept a child's current IEP when he or she transfers to the DoDDS if the CSC of the gaining school or the area CSC does the following: (1) Notifies and obtains consent of the parents to use the current IEP and all elements contained in it. (2) Involves the local DoD Component responsible for the delivery of the MRS of the medical requirements in the IEP. (3) Initiates a CSC meeting to revise the current IEP. (4) If necessary, initiates an evaluation of the child. f. Afford the child's parents the opportunity to participate in every CSC meeting to determine their child's initial or continuing eligibility for special education and related services, or to prepare or change the child's IEP or to determine or change the child's placement. g. Ensure that at least one parent understands the special education procedures including the due process procedures described in appendix F of this part and the importance of the parent's participation in those processes. School officials shall use devices or hire interpreters or other intermediaries who might be necessary to foster effective communications between the school and the parent about the child. h. Provide special education and related services, in accordance with the IEP. The Department of Defense and its constituent elements and personnel are not accountable if a child does not achieve the growth projected in the IEP. i. Ensure that all provisions developed for any child entitled to an education by the DoDDS are fully implemented in schools or in non-DoDDS schools or facilities including those requiring special facilities, other adaptations, or assistive devices. D. Placement Procedures and Least Restrictive Environment 1. A child shall not be placed by the DoDDS in any special education program unless the CSC has developed an IEP. If a child with a disability is applying for initial admission to a school, the child shall enter on the same basis as a child without a disability. A child with a disability and with the consent of a parent and school officials may receive an initial placement in a special education program under procedures listed in paragraph C.3.e. of this appendix. 2. A placement decision requires the following: [[Page 286]] a. A parent consent to the placement before actual placement of the child, except as otherwise provided in section F.2. of this appendix. b. Delivery of educational instruction and related services in the least restrictive environment. To the maximum extent, a child with a disability should be placed with children who are not disabled. Special classes, separate schooling, or other removal of a child with a disability from the regular education environment shall occur only when the type or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. c. The CSC to base placements on the IEP and to review the IEP at least annually. d. A child shall participate, to the maximum extent, in school activities including meals, assemblies, recess periods, and field trips with children who are not disabled. e. Consideration of factors affecting the child's well-being including the effects of separation from parents. f. A child shall attend a DoDDS school that is located as close as possible to the residence of the parent who is sponsoring the child's attendance. Unless otherwise required by the IEP, the school should be the same school that the child would have attended had he or she not been disabled. E. Children With Disabilities Who Are Placed in a Non-DOD School or Facility Children with disabilities who are eligible to receive a DoDDS education, but are placed in a non-DoDDS school or facility by the DoDDS, shall have all the rights of children with disabilities who are enrolled in a DoDDS school. A child with a disability may be placed in a non-DoDDS school or facility only if required by the IEP. 1. Requirements for a Non-DoDDS School or Facility Placement a. Placement in a non-DoDDS school or facility shall be made under the host-nation requirements. b. Placement in a non-DoDDS school or facility is subject to all treaties, Executive agreements, and status of forces agreements between the United States and the host nations, and all DoD and DoDDS regulations. c. If the DoDDS places a child with a disability in a non-DoDDS school or facility as a means of providing special education and related services, the program of that institution including nonmedical care and room and board, as in the child's IEP, must be provided at no cost to the child or the child's parents. The DoDDS or the responsible DoD Component shall pay the costs in accordance with DoD 1010.13-R \2\. --------------------------------------------------------------------------- \2\ See footnote 1 to section A. of this appendix. --------------------------------------------------------------------------- d. Local school officials shall initiate and conduct a meeting to develop an IEP for the child before placement. A representative of the non-DoDDS school or facility should attend the meeting. If the representative cannot attend, the DoDDS officials shall communicate in other ways to ensure participation including individual or conference telephone calls. The IEP must meet the following standards: (1) Be signed by an authorized DoDDS official before it becomes valid. (2) Include a determination that the DoDDS does not currently have or cannot reasonably create an educational program appropriate to meet the needs of the child with a disability. (3) Include a determination that the non-DoDDS school or facility and its educational program and related services conform to the requirements of this part. 2. Cost of Tuition For Non-DoDDS School or Facility. The Department of Defense is not authorized to fund non-DoDDS placement unless it is directed by the DoDDS Area Superintendent in coordination with the Director, DoDDS; or it is directed by an impartial hearing officer or court of competent jurisdiction. A valid IEP must document the necessity of the placement in a non-DoDDS school or facility. F. Procedural Safeguards for Children and Parents Parents of children with disabilities are afforded procedural safeguards to ensure that their children receive a free public education consistent with appendix F to this part. 1. Notice of Procedural Safeguards a. Parents shall be provided a written notice in a reasonable time before one of the following: (1) Receiving a proposal to initiate or change the identification, evaluation, or educational placement of the child or the provision of free public education to the child. (2) Receiving refusal from the DoDDS to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free public education. b. The notice shall inform the parent of the following: (1) Parental procedural rights detailed in appendix F to this part. (2) A description of the action proposed or refused by the DoDDS with a brief explanation for the decision. c. The notice shall be provided so as to ensure the parent's understanding. That may [[Page 287]] be achieved by using simplified language, delivering the notice in the parent's native language, or using an interpreter or other person selected by the parents. 2. Parental Consent a. The consent of a parent of a child with a disability or suspected of having a disability shall be obtained before any of the following: (1) Initiation of formal evaluation procedures. (2) Initial educational placement. (3) Change in educational placement. b. If the parent refuses consent to any formal evaluation or initial placement in a special education program, the DoDDs or the parent may do the following: (1) Request a conference between the school and parents. (2) Request mediation. (3) Initiate an impartial due process hearing under appendix F to this part, to show cause as to why an evaluation or placement in a special education program should or should not occur without such consent. If the hearing officer sustains the DoDDS position in the impartial due process hearing, the DoDDS may evaluate or provide special education and related services to the child without the consent of a parent, subject to the further exercise of due process rights. 3. Independent Evaluation a. A parent is entitled to an independent evaluation at the expense of the DoDDS if the parent disagrees with the DoDDS evaluation of the child and successfully challenges the evaluation in an impartial due process hearing. An independent evaluation provided at the DoDDS expense must do the following: (1) Conform to the requirements of this part. (2) Be conducted, when possible, in the area where the child resides. (3) Meet DoD standards governing persons qualified to conduct an educational evaluation including an evaluation for MRS. b. If the final decision rendered in an impartial due process hearing sustains the DoDDS evaluation, the parent has the right to an independent evaluation, but not at the DoDDS expense. c. The DoDDS, the CSC, and a hearing officer appointed under this part shall consider any evaluation report presented by a parent. 4. Access to Records. The parents of a child with a disability shall be afforded an opportunity to inspect and review educational records about the identification, evaluation, and educational placement of the child, and the provision of a free public education for the child. 5. Due Process Rights a. The parent of a child with a disability or the DoDDS has the opportunity to file a written petition for an impartial due process hearing at the DoDDS expense under appendix F to this part. The dispute may concern issues effecting a partial child's identification, evaluation, or placement, or the provision of a free and appropriate public education. b. While an impartial due process hearing or judicial proceeding is pending, unless the DoDDS and a parent of the child agree otherwise, the child shall remain in the present educational setting, subject to the disciplinary procedures prescribed in section H. of this appendix. 6. Dispute Resolution--Other Complaints. A parent, teacher, or other person covered by this part may file a written complaint about any aspect of this part that is not a proper subject for adjudication by a due process hearing officer, in accordance with DSR 2500.10.\3\ --------------------------------------------------------------------------- \3\ Copies of the appropriate forms are available at every school office. --------------------------------------------------------------------------- G. Confidentiality of Records The DoDDS officials shall maintain all student records, in accordance with DoD Directive 5400.11.\4\ --------------------------------------------------------------------------- \4\ See footnote 1 to section A. of this appendix. --------------------------------------------------------------------------- H. Disciplinary Procedures All regular disciplinary rules and procedures applicable to children receiving educational instruction in the DoDDS shall apply to children with disabilities who violate school rules and regulations or disrupt regular classroom activities, subject to the following provisions: 1. Before suspending or expelling a child with a disability, the CSC or, a child with a disability in a non-DoDDS school, authorized DoDDS officials, shall determine the following: a. Whether the behavioral conduct is the result of the child's disability. b. If any change in the educational placement is needed. 2. If it is determined that the child's conduct results in whole or part from the disability, the child may not be subject to any regular disciplinary rules and procedures and the following procedures must be followed: a. The child's parents shall be notified of the right to have an IEP meeting before any change in the child's educational placement. b. The CSC or authorized DoDDS officials shall ensure that a meeting is held to determine the appropriate educational placement for the child in consideration of the child's conduct. [[Page 288]] c. The child may not be suspended for more than 10 days during a school year. 3. A child with a disability may be suspended on an emergency basis when it reasonably appears that the child's behavior may endanger the health, welfare, or safety of self or any other child, teacher, or school personnel. The following conditions apply: a. The child's parents shall be notified immediately of that suspension and of the time, purpose, and location of the CSC meeting and of their right to attend the meeting. b. That suspension remains in effect only for the duration of the emergency. 4. If it is determined that the child requires a change in educational placement, the CSC or, in the case of a child with a disability in a non-DoDDS school, authorized DoDDS officials shall ensure that a meeting is held to determine the appropriate educational placement for the child in consideration of the child's conduct. Appendix C to Part 57--The National Advisory Panel (Nap) on the Education of Dependents With Disabilities A. Membership The NAP shall meet as needed in publicly announced, accessible meetings open to the general public and shall comply with DoD Directive 5105.4\1\. The NAP members, appointed by the Secretary of Defense, or designee, shall include at least one representative from each of the following groups. --------------------------------------------------------------------------- \1\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. --------------------------------------------------------------------------- 1. Persons with disabilities 2. The DoDDS special education teachers 3. The DoDDS regular education teachers. 4. Parents of children, ages 3 to 21, inclusive, who are receiving special education from the DoDDS. 5. The staff personnel of the DoDDS Headquarters. 6. Special education program managers from the DoDDS field activities. 7. Representatives of the Military Departments and overseas commands, including providers of related services. 8. Providers of the DoD early intervention services. 9. Other appropriate persons. B. Activities 1. The NAP shall perform the following activities: a. Review information about improvements in service provided to children with disabilities, ages 3 to 21, inclusive in the Department of Defense. b. Receive and consider comments from parents, students, professional groups, and individuals with disabilities. c. When necessary establish committees for short-term purposes comprised of representatives from parent, student, professional groups, and individuals with disabilities. d. Review the findings of fact and decisions of each impartial due process hearing conducted under appendix F of this part. e. Assist in developing and reporting such information and evaluations as may assist the Department of Defense. f. Make recommendations based on program and operational information for changes in policy and procedures and in the budget, organization, and general management of the special education program. g. Comment publicly on rules or standards about the education of children with disabilities, ages 3 to 21, inclusive. h. Perform such other tasks as may be requested by the USD(P&R) or the Director, DoDDS. 2. The NAP members shall serve under appointments that shall be for a term not to exceed 3 years. C. Reporting Requirements Submit an annual report of the NAP's activities and suggestions to the USD(P&R) and the Director, DoDDS, by July 31 of each year. That report is exempt from formal review and licensing under section E. of DoD Instruction 7750.7.\2\ --------------------------------------------------------------------------- \2\ See footnote 1 to section A. of this appendix. --------------------------------------------------------------------------- Appendix D to Part 57--DoD Coordinating Committee on Early Intervention, Special Education, and Medically Related Services A. Committee Membership The committee shall meet at least twice yearly to facilitate collaboration in early intervention, special education, and Medically Related Services (MRS) in the Department of Defense. The committee shall consist of the following members: 1. A representative of the USD(P&R) or designee, who shall serve as the Chair. 2. Representatives of the Secretaries of the Military Departments. 3. Representatives of the Assistant Secretary of Defense (Health Affairs) (ASD(HA)). 4. Representatives from the DoD school systems (domestic and overseas). 5. Representatives from the GC, DoD. [[Page 289]] B. Responsibilities 1. Advise and assist the USD(P&R) in the performance of his or her responsibilities. 2. At the direction of the USD(P&R), advise and assist the Military Departments, and the DoD school systems (overseas and domestic) in the coordination of services among providers of early intervention, special education, and MRS. 3. Ensure compliance in the provision of early intervention services for infants and toddlers and special education and related services for children ages 3 to 21, inclusive. 4. Oversee the coordination of early intervention, special education, and related services. 5. Review the recommendations of the NAP and the Early Intervention ICC to identify common concerns, ensure coordination of effort, and forward issues requiring resolution to the USD(P&R). 6. Promote the coordination of services and information sharing among the providers of early intervention, special education, and MRS. 7. Assist in the coordination of assignments of sponsors who have children with disabilities who are or who may be eligible for special education and MRS in the DoDDS or the EIP through the Military Departments. Appendix E to Part 57--DoD Inter-Component Coordinating Council (ICC) on Early Intervention A. Council Membership The USD(P&R) shall appoint members to the ICC. The Council shall meet at least yearly in publicly announced, open meetings that are accessible to the general public and shall comply with DoD Directive 5105.4.\1\ The Council shall be comprised of the following: --------------------------------------------------------------------------- \1\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. --------------------------------------------------------------------------- 1. Parents. At least 20 percent of the members shall be parents with infants or toddlers with disabilities or children ages 12 or younger with disabilities, with knowledge of, or experience with, programs for infants and toddlers with disabilities. At least one such member shall be a parent of an infant or toddler or a child age 6 or younger. 2. Representatives of the Surgeons General of the Military Departments. 3. Representatives of the family support programs of the Military Departments. 4. Representatives from the ASD(HA). 5. Representative(s) from the DoDDS. 6. A representative from the GC, DoD. B. Responsibilities 1. Advise and assist the Military medical Departments in the performance of their responsibilities, particularly the identification of appropriate resources and Agencies for providing early intervention services and the promoting of inter-Component agreements. 2. Advise and assist the DoDDS on the transition of toddlers with disabilities to preschool services. 3. Identify strategies to address areas of conflict, overlap, duplication, or omission of early intervention services. 4. Review policy memoranda on effective inter-Department and inter- Component collaboration. 5. Review reports of technical assistance and monitoring activities and make recommendations to improve the policies, procedures, programs, and delivery of early intervention services. 6. Make recommendations based on program and operational information for changes in the policy, procedures, budget, organization, and general management of the EIPs. 7. Provide advice and technical assistance in the establishment, membership, and operation of installation or command level ICCs. 8. When necessary, establish committees for short-term purposes comprised of parents of children with disabilities, service providers, and representatives of professional groups. 9. Submit an annual report of its activities and suggestions to the USD(P&R) by July 31 of each year. That report is exempt from formal review and licensing under section E. of DoD Instruction 7750.7.\2\ --------------------------------------------------------------------------- \2\ See footnote 1 to section A. of this appendix. --------------------------------------------------------------------------- C. Procedures 1. The USD(P&R) shall nominate and select all members to the ICC to include those listed in section A.1. of this appendix. 2. Appointments shall be for a term not to exceed 3 years except for DoD personnel who are not representing the parent category of membership. 3. The USD(P&R), or designee, shall call and conduct the meeting of the Council. Appendix F to Part 57--Mediation and Hearing Procedures A. Purpose This appendix establishes requirements for the resolution of conflicts through mediation and impartial due process hearings. Parents of infants, toddlers, and children who are covered by this Instruction and, as the case may be, the cognizant Military Department [[Page 290]] or the DoDDS are afforded impartial mediation and/or impartial due process hearings and administrative appeals about the provision of early intervention services, or the identification, evaluation, educational placement of, and the FAPE provided to, such children by the Department of Defense, in accordance with 20 U.S.C. 921 et seq. and 1400 et seq. B. Mediation 1. Mediation may be initiated by either a parent or the Military Department concerned, or the DoDDS to resolve informally a disagreement on the early intervention services for an infant or toddler or the identification, evaluation, educational placement of, or the FAPE provided to, a child age 3 to 21, inclusive. The cognizant Military Department, rather than the DoDDS, shall participate in mediation involving early intervention services. Mediation shall consist of, but not be limited to, an informal discussion of the differences between the parties in an effort to resolve those differences. The parents and the school or Military Department officials may attend mediation sessions. 2. Mediation must be conducted, attempted, or refused in writing by a parent of the infant, toddler, or child whose early intervention or special education services (including related services) are at issue before a request for, or initiation of, a formal due process hearing authorized by this appendix. Any request by the DoDDS or the Military Department for a hearing under this appendix shall state how that requirement has been satisfied. No stigma may be attached to the refusal of a parent to mediate or to an unsuccessful attempt to mediate. C. Hearing Administration 1. The Defense Office of Hearings and Appeals (DOHA) shall have administrative responsibility for the proceedings authorized by sections D. through G. of this appendix. 2. This appendix shall be administered to ensure that the findings, judgments, and determinations made are prompt, fair, and impartial. 3. Impartial hearing officers who shall be DOHA Administrative Judges, shall be appointed by the Director, DOHA, and shall be attorneys in good standing of the bar of any State, the District of Columbia, or a territory or possession of the United States who are independent of the DoDDS or the Military Department concerned in proceedings conducted under this appendix. A parent shall have the right to be represented in such proceedings, at no cost to the Government, by counsel, and by persons with special knowledge or training with respect to the problems of individuals with disabilities. The DOHA Department counsel normally shall appear and represent the DoDDS in proceedings conducted under this appendix, when such proceedings involve a child age 3 to 21, inclusive. When an infant or toddler is involved, the Military Department responsible under this Instruction for delivering early intervention services shall either provide its own counsel or request counsel from DOHA. D. Hearing Practice and Procedure 1. Hearing a. Should mediation be refused or otherwise fail to resolve the issues on the provision of early intervention services to an infant or toddler or the identification or evaluation of such an individual, the parent may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of an infant or toddler and the Military Department concerned shall be the only parties to a hearing conducted under this appendix. b. Should mediation be refused or otherwise fail to resolve the issues on the provision of a FAPE to a child with a disability, age 3 to 21, inclusive, or the identification, evaluation, or educational placement of such an individual, the parent or the school principal, for the DoDDS, may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of a child age 3 to 21, inclusive, and the DoDDS shall be the only parties to a hearing conducted under this appendix. c. The party seeking the hearing shall submit a written request, in the form of a petition, setting forth the facts, issues, and proposed relief, to the Director, DOHA. The petitioner shall deliver a copy of the petition to the opposing party (i.e., the parent or the school principal, for the DoDDS, or the military MTF commander, for the Military Department), either in person or by first-class mail, postage prepaid. Delivery is complete on mailing. When the DoDDS or the Military Department petitions for a hearing, it shall inform the other parties of the deadline for filing an answer under paragraph D.1.c. of this appendix, and shall provide the other parties with a copy of this part. d. An opposing party shall submit an answer to the petition to the Director, DOHA, with a copy to the petitioner, within 15 calendar days of receipt of the petition. The answer shall be as full and complete as possible, addressing the issues, facts, and proposed relief. The submission of the answer is complete on mailing. e. In 10 calendar days after receiving the petition, the Director, DOHA, shall assign a hearing officer, who then shall have jurisdiction over the resulting proceedings. The Director, DOHA, shall forward all pleadings to the hearing officer. [[Page 291]] f. The questions for adjudication shall be based on the petition and the answer, if a party may amend a pleading if the amendment is filed with the hearing officer and is received by the other parties at least 5 calendar days before the hearing. g. The Director, DOHA, shall arrange for the time and place of the hearing, and shall provide administrative support. Such arrangements shall be reasonably convenient to the parties. h. The purpose of a hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the case. Oral and documentary evidence that is relevant and material may be received. The technical rules of evidence shall be relaxed to permit the development of a full evidentiary record, with the ``Federal Rules of Evidence'' (Rules 1-1102) of 28 U.S.C., serving as a guide. i. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include the authority to order an independent evaluation of the child at the expense of the DoDDS or the Military Department concerned and to call and question witnesses. j. Those normally authorized to attend a hearing shall be the parents of the individual with disabilities, the counsel and personal representative of the parents, the counsel and professional employees of the DoDDS or the Military Department concerned, the hearing officer, and a person qualified to transcribe or record the proceedings. The hearing officer may permit other persons to attend the hearing, consistent with the privacy interests of the parents and the individual with disabilities, if the parents have the right to an open hearing on waiving in writing their privacy rights and those of the individual with disabilities. k. A verbatim transcription of the hearing shall be made in written or electronic form and shall become a permanent part of the record. A copy of the written transcript or electronic record of the hearing shall be made available to a parent on request and without cost. The hearing officer may allow corrections to the written transcript or electronic recording for conforming it to actual testimony after adequate notice of such changes is given to all parties. l. The hearing officer's decision of the case shall be based on the record, which shall include the petition, the answer, the written transcript or the electronic recording of the hearing, exhibits admitted into evidence, pleadings or correspondence properly filed and served on all parties, and such other matters as the hearing officer may include in the record, if such matter is made available to all parties before the record is closed under paragraph D.1.m. of this appendix. m. The hearing officer shall make a full and complete record of a case presented for adjudication. n. The hearing officer shall decide when the record in a case is closed. o. The hearing officer shall issue findings of fact and render a decision in a case not later than 50 calendar days after being assigned to the case, unless a discovery request under section D.2. of this appendix, is pending. 2. Discovery a. Full and complete discovery shall be available to parties to the proceeding, with the ``Federal Rules of Civil Procedure,'' Rules 26-37, codified at 28 U.S.C. serving as a guide. b. If voluntary discovery cannot be accomplished, a party seeking discovery may file a motion with the hearing officer to accomplish discovery, provided such motion is founded on the relevance and materiality of the proposed discovery to the issues. An order granting discovery shall be enforceable as is an order compelling testimony or the production of evidence. c. A copy of the written or electronic transcription of a deposition taken by the DoDDS or the Military Department concerned shall be made available free of charge to a parent. 3. Witnesses; Production of Evidence a. All witnesses testifying at the hearing shall be advised that it is a criminal offense knowingly and willfully to make a false statement or representation to a Department or Agency of the U.S. Government as to any matter in the jurisdiction of that Department or Agency. All witnesses shall be subject to cross-examination by the parties. b. A party calling a witness shall bear the witness' travel and incidental expenses associated with testifying at the hearing. The DoDDS or the Military Department concerned shall pay such expenses when a witness is called by the hearing officer. c. The hearing officer may issue an order compelling the attendance of witnesses or the production of evidence on the hearing officer's own motion or, if good cause be shown, on motion of a party. d. When the hearing officer determines that a person has failed to obey an order to testify or to produce evidence, and such failure is in knowing and willful disregard of the order, the hearing officer shall so certify. e. The party or the hearing officer seeking to compel testimony or the production of evidence may, on the certification provided for in paragraph D.3.d. of this appendix, file an appropriate action in a court of competent jurisdiction to compel compliance with the hearing officer's order. [[Page 292]] 4. Hearing Officer's Findings of Fact and Decision a. The hearing officer shall make written findings of fact and shall issue a decision setting forth the questions presented, the resolution of those questions, and the rationale for the resolution. The hearing officer shall file the findings of fact and decision with the Director, DOHA, with a copy to the parties. b. The Director, DOHA, shall forward to the Director, DoDDS, or to the Military Department concerned, and to the NAP or the ICC, as appropriate, copies with all personally identifiable information deleted, of the hearing officer's findings of fact and decision or, in cases that are administratively appealed, of the final decision of the DOHA Appeal Board. c. The hearing officer shall have the authority to impose financial responsibility for early intervention services, educational placements, evaluations, and related services under his or her findings of fact and decision. d. The findings of fact and decision of the hearing officer shall become final unless a notice of appeal is filed under section F.1. The DoDDS or the Military Department concerned shall implement a decision as soon as practicable after it becomes final. E. Determination Without Hearing 1. At the request of a parent of an infant, toddler, or child age 3 to 21, inclusive, when early intervention or special educational (including related) services are at issue, the requirement for a hearing may be waived, and the case may be submitted to the hearing officer on written documents filed by the parties. The hearing officer shall make findings of fact and issue a decision in the period fixed by paragraph D.1.o. of this appendix. 2. The DoDDS or the Military Department concerned may oppose a request to waive that hearing. In that event, the hearing officer shall rule on that request. 3. Documents submitted to the hearing officer in a case determined without a hearing shall comply with paragraph D.1.h. of this appendix. A party submitting such documents shall provide copies to all other parties. F. Appeal 1. A party may appeal the hearing officer's findings of fact and decision by filing a written notice of appeal with the Director, DOHA, within 5 calendar days of receipt of the findings of fact and decision. The notice of appeal must contain the appellant's certification that a copy of the notice of appeal has been provided to all other parties. Filing is complete on mailing. 2. Within 10 calendar days of filing the notice of appeal, the appellant shall submit a written statement of issues and arguments to the Director, DOHA, with a copy to the other parties. The other parties shall submit a reply or replies to the Director, DOHA, within 15 calendar days of receiving the statement, and shall deliver a copy of each reply to the appellant. Submission is complete on mailing. 3. The Director, DOHA, shall refer the matter on appeal to the DOHA Appeal Board. It shall determine the matter, including the making of interlocutory rulings, within 60 calendar days of receiving timely submitted replies under section F.2. of this appendix. The DOHA Appeal Board may require oral argument at a time and place reasonably convenient to the parties. 4. The determination of the DOHA Appeal Board shall be a final administrative decision and shall be in written form. It shall address the issues presented and set forth a rationale for the decision reached. A determination denying the appeal of a parent in whole or in part shall state that the parent has the right under 20 U.S.C. 921 et seq. and 1400 et seq., to bring a civil action on the matters in dispute in a district court of the United States without regard to the amount in controversy. 5. No provision of this Instruction or other DoD guidance may be construed as conferring a further right of administrative review. A party must exhaust all administrative remedies afforded by this appendix before seeking judicial review of a determination made under this appendix. G. Publication and Indexing of Final Decisions The Director, DOHA, shall ensure that final decisions in cases arising under this appendix are published and indexed to protect the privacy rights of the parents who are parties in those cases and the children of such parents, in accordance with DoD Directive 5400.11\1\. --------------------------------------------------------------------------- \1\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. ---------------------------------------------------------------------------