[Code of Federal Regulations] [Title 32, Volume 1] [Revised as of July 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR57.6] [Page 358-376] 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--Table of Contents Sec. 57.6 Procedures. (a) The procedures for EIS for infants and toddlers with disabilities and their families are prescribed in appendix A of this part. (b) The procedures for educational programs and services for children with disabilities, ages 3 through 21 years, inclusive, on IEPs are prescribed in appendix B of this part. (c) The procedures for the provision of related services for DoDDS students with disabilities, ages 3 through 21, inclusive, are prescribed in appendix C of this part (d) Procedural safeguards and parent and student rights are prescribed in appendix F of this part. (e) The procedures for conducting mediation and due process hearings are prescribed in appendix G of this part. (f) The procedures for conducting compliance monitoring are prescribed in appendix H of 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. Identification and Screening (1) Each Military Department shall develop and implement in its assigned geographic area a comprehensive child-find public awareness program that focuses on the early identification of children who are eligible to receive EIS under this part. The public awareness program must inform the public about: (i) The EDIS early intervention program; (ii) The child-find system, including: (A) The purpose and scope of the system; (B) How to make referrals to service providers that includes timelines and provides for participation by primary referral sources; and (C) How to gain access to a comprehensive, multidisciplinary evaluation and other EIS; and (D) A central directory that includes a description of the EIS and other relevant resources available in each military community overseas. (2) EDIS must prepare and disseminate materials for parents on the availability of EIS to all primary referral sources, especially hospitals, physicians, and child development centers. (3) Upon receipt of a referral, EDIS shall appoint a service coordinator. (4) Procedures for Identification and Screening. All children referred to the EDIS for EIS shall be screened to determine the appropriateness of the referral and to guide the assessment process. (i) Screening does not constitute a full evaluation. At a minimum, screening shall include a review of the medical and developmental history of the referred child through a parent interview and/or a review of medical records. (ii) If screening was conducted prior to the referral, or if there is a substantial or obvious biological risk, screening may not be necessary. B. Assessment and Evaluation (1) The assessment and evaluation of each child must: (i) Be conducted by a multidisciplinary team. (ii) Be based on informed clinical opinion; and (iii) Include the following: (A) A review of pertinent records related to the child's current health status and medical history. (B) An evaluation of the child's level of functioning in each of the following developmental areas: (i) Cognitive development. (ii) Physical development, including vision and hearing. (iii) Communication development. (iv) Social or emotional development. (v) Adaptive development. (iv) An assessment of the unique needs of the child in terms of each of the developmental areas in paragraph B.(1)(iii)(B) of this appendix, including the identification of services appropriate to meet those needs. (2) Family Assessment. (i) Family assessments must be family- directed and designed to determine the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of the child. (ii) Any assessment that is conducted must be voluntary on the part of the family. [[Page 359]] (iii) If an assessment of the family is carried out, the assessment must: (A) Be conducted by personnel trained to utilize appropriate methods and procedures. (B) Be based on information provided by the family through a personal interview; and (C) Incorporate the family's description of its resources, priorities, and concerns related to enhancing the child's development. (3) Standards for Assessment Selection and Procedures. EDIS shall ensure, at a minimum, that: (i) Tests and other evaluation materials and procedures are administered in the native language of the parents or other mode of communication, unless it is clearly not feasible to do so. (ii) Any assessment and evaluation procedures and materials that are used are selected and administered so as not to be racially or culturally discriminatory. (iii) No single procedure is used as the sole criterion for determining a child's eligibility under this part; and (iv) Evaluations and assessments are conducted by qualified personnel. (4) With the parent's consent, EIS may begin before the completion of the assessment and evaluation when it has been determined by a multidisciplinary team that the child and/or the child's family needs the service immediately. 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. C. Eligibility (1) Eligibility shall be determined at an EIS team meeting that includes parents. (i) The EIS team shall document the basis for eligibility on an eligibility report. (ii) A copy of the eligibility report shall be provided to the parent at the eligibility meeting. (2) Children with disabilities from birth through age 2 are eligible for EIS if they meet one of the following criteria: (i) The child is experiencing a developmental delay as defined in Sec. 57.3(r). (ii) The child has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay, as defined in Sec. 57.3(s). D. Timelines (1) The initial evaluation and assessment of each child (including the family assessment) must be completed within a timely manner. (2) The Military Department responsible for providing EIS shall develop procedures to ensure that in the event of exceptional circumstances that make it impossible to complete the evaluation and assessment within a timely manner (e.g., if a child is ill), EDIS shall: (i) Document those circumstances; and (ii) Develop and implement an interim IFSP, to the extent appropriate and consistent with this part. E. IFSP (1) Each Military Department shall ensure that the EDIS develop and implement an IFSP for each child, birth through 2 years of age, who meets the eligibility criteria for EIS in section B of this appendix. (2) The IFSP Meeting. The EDIS shall establish and convene a meeting to develop the IFSP of a child with a disability. That meeting shall be scheduled as soon as possible following a determination by the EDIS that the child is eligible for EIS, but not later than 45 days from the date of the referral for services. (3) Meetings to develop and review the IFSP must include the following participants: (i) The parent or parents of the child. (ii) Other family members, as requested by the parent, if feasible. (iii) An advocate or person outside of the family, if the parent requests that person's participation. (iv) The 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. (v) The person(s) directly involved in conducting the evaluations and assessments. (vi) As appropriate, persons who shall provide services to the child or family. (4) If a person listed in paragraph E.(3) of this appendix is unable to attend a meeting, arrangements must be made for the person's involvement through other means, including the following: (i) Participating in a telephone conference call. (ii) Having a knowledgeable, authorized representative attend the meeting. (iii) Making pertinent records available at the meeting. (5) The IFSP shall be written in a reasonable time after assessment and shall contain the following: (i) A statement of the child's current developmental levels including physical, cognitive, communication, social or emotional, and adaptive behaviors based on professionally acceptable objective criteria. (ii) With the concurrence of the family, a statement of the family's resources, priorities, and concerns about enhancing the child's development. (iii) 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 timelines used to determine the degree to [[Page 360]] which progress toward achieving the outcomes is being made and whether modification or revision of the outcomes and services are necessary. (iv) A statement of the specific EIS necessary to meet the unique needs of the child and the family including the frequency, intensity, and method of delivering services. (v) The projected number of sessions necessary to achieve the outcomes listed in the IFSP. (vi) A statement of the natural environments in which EIS shall be provided, and a justification of the extent, if any, to which the services shall not be provided in a natural environment. (vii) The projected dates for initiation of services and the anticipated duration of those services. (viii) The name of the service coordinator who shall be responsible for the implementation of the IFSP and coordination with other agencies and persons. In meeting these requirements, EDIS may: (A) Assign the same service coordinator who was appointed at the time that the child was initially referred for evaluation to be responsible for implementing a child's and family's IFSP; or (B) Appoint a new service coordinator. (C) Appoint a service coordinator requested by the parents. (ix) The steps to be taken supporting the transition of the toddler with a disability to preschool or other services. These steps must include: (A) Discussions with, and training of, parents regarding future placements and other matters related to the child's transition; (B) Procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting; and (C) The transmission of information about the child to the DoD school system, to ensure continuity of services, including evaluation and assessment information, and copies of IFSPs that have been developed and implemented in accordance with this Part. (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 EIS described in that plan. (7) If a parent does not provide consent for participation in all EIS, the services shall still be provided for those interventions to which a parent does give consent. (8) 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). The purpose of the periodic review is to determine the following: (i) The degree to which progress toward achieving the outcomes is being made; and (ii) Whether modification or revision of the outcomes or services is necessary. (9) The review may be carried out by a meeting or by another means that is acceptable to the parents and other participants. F. Maintenance of Records (1) The EDIS officials shall maintain all EIS records, in accordance with DoD Directive 5400.11. (2) The IFSP and the documentation of services delivered in accordance with the IFSP are educational records and shall be maintained accordingly. Appendix B to Part 57--Procedures for the Provision of Educational Programs and Services for Children With Disabilities, Ages 3 Through 21 Years, Inclusive A. Identification (1) It is the responsibility of the DoD school system officials to engage in child-find activities to locate, identify, and with informed parental consent, evaluate all children who are eligible to enroll in the DDESS under DoD Directive 1342.26 or in the DoDDS under DoD Directive 1342.13 who may require special education and related services. (2) Referral of a Child for Special Education or Related Services. The DoD school system officials, related service providers, parents, or others who suspect that a child has a possible disabling condition shall refer that child to the CSC. (3) Procedures for Identification and Screening. The DoD school system officials shall conduct the following activities to determine if a child needs special education and related services: (i) Screen educational records. (ii) Screen students using system-wide or other basic skill tests in the areas of reading, math, and language arts. (iii) 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. (iv) Analyze school records to obtain pertinent information about the basis for suspensions, exclusions, withdrawals, and disciplinary actions. (v) Coordinate the transition of children from early intervention to preschool. (4) In cooperation with the Military Departments, conduct on-going child-find activities and publish, periodically, any information, guidelines, and direction on child-find activities for eligible children with disabilities, ages 3 through 21 years, inclusive. B. Assessment and Evaluation (1) Every child eligible to attend a DoD school who is referred to a CSC shall receive [[Page 361]] 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. (2) Procedures for Assessment and Evaluation. A CSC shall ensure that the following elements are included in a comprehensive assessment and evaluation of a child: (i) Assessment of visual and auditory acuity. (ii) 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: (A) Assessment of the level of functioning academically, intellectually, emotionally, socially, and in the family. (B) Observation in an educational environment. (C) Assessment of physical status including perceptual and motor abilities. (D) Assessment of the need for transition services for students 14 years and older, the acquisition of daily living skills, and functional vocational assessment. (iii) The involvement of parents. (3) The CSC shall use 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. (4) Each assessor shall prepare an individual assessment report that includes: (i) Demographic information about the student and the assessor. (ii) The problem areas constituting the bases for a referral. (iii) A behavioral observation of the child during testing. (iv) The instruments and techniques used for the assessment. (v) A description of the child's strengths and limitations. (vi) The results of the assessment; and (vii) The instructional implications of the findings for educational functioning. (5) Standards for Assessment Selection and Procedures. All DoD elements, including the CSC and related services providers, shall ensure that assessment materials and evaluation procedures are in compliance with the following criteria: (i) Selected and administered so as not to be racially or culturally discriminatory. (ii) Administered in the native language or mode of communication of the child, unless it clearly is not possible to do so. (iii) Materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills. (iv) Validated for the specific purpose for which they are used or intended to be used. (v) Administered by trained personnel in compliance with the instructions of the testing instrument. (vi) Administered such that no single procedure is the sole criterion for determining eligibility or an appropriate educational program for a child with a disability. (vii) Selected to assess specific areas of educational needs and strengths and not merely to provide a single general intelligence quotient. (viii) Administered to a child with impaired sensory, motor, or communication skills so that the results reflect accurately a child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure). (6) Review of Existing Evaluation Data. As part of an initial evaluation (if appropriate) and as part of any reevaluation, the CSC shall review existing evaluation data on the child, including: (i) Evaluations and information provided by the parents of the child; (ii) Current classroom-based assessments and observations; (iii) Observations by teachers and related services providers; and (iv) On the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine: (A) Whether the child has a particular category of disability, or in the case of a reevaluation of a child, whether the child continues to have such a disability. (B) The present levels of performance and educational needs of the child. (C) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and (D) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum. (v) The CSC may conduct its review without a meeting. (vi) The CSC shall administer tests and other evaluation materials as may be needed to produce the data identified under paragraph B.(2) of this appendix. C. Eligibility (1) The CSC shall: (i) 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 [[Page 362]] with knowledge in the area of the suspected disability. (ii) Convene a meeting to determine the eligibility of a child for special education and related services. (iii) Meet as soon as possible after a child has been assessed to determine the eligibility of the child for services. (iv) Afford the child's parents the opportunity to participate in the CSC eligibility meeting. (v) Issue a written eligibility report that contains the following: (A) Identification of the child's disabling condition. (B) A synthesis of the formal and informal findings of the multidisciplinary assessment team. (C) A summary of information from the parents, the child, or other persons having significant contact with the child. (D) A determination of eligibility statement. (E) A list of the educational areas affected by the child's disability, a description of the child's educational needs, and a statement of the child's present level of performance. (2) Reevaluation for Eligibility. School officials shall reevaluate the eligibility of a child with a disability every 3 years, or more frequently, if conditions warrant. (i) The scope and type of the reevaluation shall be determined individually based on a child's performance, behavior, and needs during the reevaluation and the review of existing data in accordance with paragraph B.(6) of this appendix. (ii) The CSC is not required to conduct assessments unless requested to do so by the child's parents. (iii) If the CSC determines that no additional data are needed to determine whether the child continues to be a child with a disability, the CSC shall notify the parents of: (A) The determination that no additional assessment data are needed and the reasons for their determination; and (B) The right of the parents to request an assessment to determine whether the child continues to be a child with a disability. D. IEP (1) The DoD school system officials shall ensure that the CSC develop and implement an IEP for each child with a disability who: (i) Is enrolled in the DoD school system; (ii) In DoDDS, is home-schooled, eligible to enroll in DoDDS on a space-required, tuition-free basis and whose sponsors have completed a registration form and complied with other registry procedures and requirements of the school; (iii) In DDESS, is home-schooled and eligible to enroll on a tuition-free basis and whose sponsors have completed a registration form and complied with other registry procedures and requirements of the school; or (iv) Is placed in another institution by the DoD school system. (2) The CSC shall convene a meeting to develop, review, or revise the IEP of a child with a disability. That meeting shall: (i) Be scheduled as soon as possible following a determination by the CSC that the child is eligible for special education and related services. (ii) Include minimally as participants the following: (A) An administrator or school representative other than the child's teacher who is qualified to provide or supervise the provision of special education and is knowledgeable about the general curriculum and available resources. (B) The child's teacher (if the child is, or may be, participating in the regular education environment); (C) A special education teacher or provider. (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 who have knowledge or special expertise regarding the child, including related services personnel, as appropriate. (3) Development of the IEP. The CSC shall prepare the IEP with the following: (i) A statement of the child's present levels of educational performance including a description of: (A) How the child's disability affects involvement and progress in the general curriculum or for preschoolers, how the disability affects participation in appropriate activities. (B) A description of the child's participation in the regular classroom (if the child participates in the regular education environment), extracurricular and other non-academic activities; and (C) If necessary, an explanation of the extent to which the child shall not participate with children who are not disabled in these activities. (ii) A statement of measurable annual goals including benchmarks or short-term instructional objectives related to meeting: (A) The child's needs that result from the disability to enable the child to be involved in and progress in the general curriculum; (B) Each of the child's other needs resulting from his or her disability. (iii) A statement of the special education and related services and supplementary aids and services to be provided to the child, or [[Page 363]] on behalf of the child and a statement of the program modifications or supports for school personnel that shall be provided for the child to: (A) Advance appropriately toward attaining the annual goals. (B) Be involved in and progress in the general curriculum in accordance with this part and to participate in extracurricular and other non-academic activities; and (C) Be educated and participate with other children with or without disabilities. (iv) A statement of any individual modifications in the administration of system-wide or district-wide assessment of student achievement that are needed for the child to participate in the assessment. (v) If the CSC determines that the child shall not participate in a particular system-wide or district-wide assessment of student achievement (or part of an assessment), a statement of: (A) Why that assessment is not appropriate for the child; and (B) How the child shall be assessed using alternate assessments to measure student progress. (vi) A statement explaining how the child's progress towards annual goals shall be measured. (vii) A statement explaining how parents shall be informed, at least as often as parents are informed of progress of children who are not disabled, of: (A) Their child's progress toward annual goals; and (B) The extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year. (viii) A statement of special education, related services, and modifications necessary for the child to advance appropriately toward the annual goals. (ix) A statement of the amount of time that each service shall be provided to the child, to include the projected date for beginning of services and location and duration of those services (including adjusted school day or an extended school year) and modifications. (x) A statement of the physical education program provided in one of the following settings: (A) In the regular education program. (B) In the regular education program with adaptations, modifications, or the use of assistive technology. (C) Through specially designed instruction based on the goals and objectives included in the IEP. (xi) Beginning at age 14, and updated annually: (A) A statement of transition service needs under applicable components of the child's IEP that focuses on his or her course of study and augments the standard transition requirements. (B) A statement of needed transition services, including inter- Agency responsibilities. (xii) Beginning at least one year before the child reaches the age of majority, a statement that the child has been informed of those rights that transfer to him or her under this Part. (xiii) A statement of special transportation requirement, if any. (xiv) 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. (4) Consideration of Special Factors. The CSC shall consider: (i) Assistive technology needs for all children. (ii) Language needs for the limited English proficient child. (iii) Providing Braille instruction, unless the CSC determines that the use of Braille is not appropriate, for a child who is blind or visually impaired. (iv) Interventions, strategies, and supports including behavior management plans to address behavior for a child whose behavior impedes learning. (v) Language and communication needs, opportunities for communication in the child's language and communication mode, including direct instruction in that mode, for the child who is deaf or hard of hearing. (5) The CSC shall ensure that at least one parent understands the special education procedures including the due process procedures described in appendix G 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. (6) The CSC shall ensure that all provisions developed for any child entitled to an education by the DoD school system are fully implemented in DoD schools or in non-DoD schools or facilities including those requiring special facilities, other adaptations, or assistive devices. (7) The CSC shall 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. (8) In developing each child's IEP, the CSC shall consider the strengths of the child and the concerns of the parents for enhancing the education of their child. E. Implementation of the IEP The CSC shall: (1) Obtain parental agreement and signature before implementation of the IEP. [[Page 364]] (2) Provide a copy of the child's IEP to the parents. (3) Ensure that the IEP is in effect before a child receives special education and related services. (4) Ensure that the IEP is implemented as soon as possible following the meetings described under paragraph D.(2) of this appendix. (5) Provide special education and related services, in accordance with the IEP. The Department of Defense, the DoD school systems, and DoD personnel are not accountable if a child does not achieve the growth projected in the annual goals of the IEP, as long as services have been provided in accordance with the IEP. (6) Ensure that the child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation, and that each teacher and provider is informed of: (i) His or her specific responsibilities related to implementing the child's IEP; and (ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP. (7) Review the IEP for each child at least annually in a CSC meeting to determine whether the annual goals for the child are being achieved. (8) Revise the IEP, as appropriate, to address: (i) Any lack of progress toward the annual goals and in the general curriculum, where appropriate. (ii) The results of any reevaluation. (iii) Information about the child provided by the parents. (iv) The child's anticipated needs. F. Transferring Students (1) When a student transfers to a DoD school with a current IEP from a non-DoD school, the CSC shall convene promptly an IEP meeting to address eligibility and special education services as described in sections C and D of this appendix. The CSC may: (i) Accept the child's current IEP by notifying and obtaining consent of the parents to use the current IEP and all elements contained in it. (ii) Initiate a CSC meeting to revise the current IEP, if necessary. (iii) Initiate an evaluation of the child, if necessary. (2) When a student with a current IEP transfers from one DoD school to another, the CSC shall accept the child's eligibility and current IEP by notifying and obtaining consent of the parents to use the current IEP and all elements contained in it. G. Least Restrictive Environment (1) 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. (2) A child shall not be placed by the DoD school system 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 an IEP, and with the consent of a parent and school officials, may receive an initial placement in a special education program under procedures listed in section F of this appendix. (3) A placement decision requires the following: (i) Parent participation in the decision and parent consent to the placement before actual placement of the child, except as otherwise provided in paragraph H.(2) of this appendix. (ii) Delivery of educational instruction and related services in the least restrictive environment. (iii) The CSC to base placements on the IEP and to review the IEP at least annually. (iv) The child to participate, to the maximum extent appropriate to the needs and abilities of the child, in school activities including meals, assemblies, recess periods, and field trips with children who are not disabled. (v) Consideration of factors affecting the child's well-being, including the effects of separation from parents. (vi) A child to attend a DoD 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. H. Discipline (1) All regular disciplinary rules and procedures applicable to children attending a DoD school shall apply to children with disabilities who violate school rules and regulations or disrupt regular classroom activities, subject to the following provisions. School personnel may remove a child with a disability from the child's current placement (to the extent removal would be applied to children who are not disabled): (i) On an emergency basis for the duration of the emergency when it reasonably appears that the child's behavior may endanger the [[Page 365]] health, welfare, or safety of self or any other child, teacher, or school personnel. (ii) For not more than 10-cumulative school days in a school year for any violation of school rules. (2) Change of Placement. If a child is removed from his or her current placement for more than 10-cumulative school days in a school year, it is considered a change of placement. (i) Not later than the date on which the decision to make a change in placement is made, the school must notify parents of the decision and of all procedural safeguards, as described in section B of appendix F of this part. (ii) Not later than 10 days following the change of placement, the CSC must: (A) Convene a meeting of the IEP team and other qualified personnel to conduct a manifestation determination as described in paragraph H.(5) of this appendix and (B) Convene an IEP meeting to review the IEP to develop appropriate behavioral interventions to address the child's behavior and implement those interventions. This review may be conducted at the same meeting that is convened under paragraph H.(2)(ii)(A) of this appendix. (i) If the child has a behavioral intervention plan, the CSC must review the plan and its implementation, and modify the plan and its implementation as necessary, to address the behavior. (ii) If the child does not have a behavioral intervention plan, the CSC must develop an assessment plan to include a functional behavioral assessment. (iii) As soon as practicable after developing the assessment plan and completing the assessments required by the plan, the CSC must convene an IEP meeting to develop a behavioral intervention plan to address that behavior, and shall implement the plan. (3) After a child with a disability has been removed from his or her current placement for more than 10-cumulative school days in a school year, during any subsequent days of removal the DoD school system must provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. (4) Alternative Education Setting (AES). School personnel may order a change in placement of a child with a disability in accordance with the requirements of paragraph H.(2) of this appendix to an appropriate interim AES for the same amount of time that a non-disabled child would be subject to discipline, but for not more than 45 days, if: (i) The child carries a weapon to school or to a school function under the jurisdiction of the DoD school system; or (ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function under the jurisdiction of a DoD school system. (5) Manifestation Determination. The CSC shall determine whether the child's behavior is the result of the child's disability by considering all relevant information including evaluation results, observation of the child, information provided by the parents of the child, and the child's IEP and placement. (i) Unless all of the following are evident, the CSC must consider the child's behavior to be a manifestation of the disability: (A) IEP and placement were appropriate and the special education services, supplementary aides and services, and behavior intervention strategies were provided consistent with the child's IEP and placement; (B) The child's disability did not impair his or her ability to understand the impact and consequences of the behavior subject to the disciplinary action; and (C) The child's disability did not impair his or her ability to control the behavior subject to disciplinary action. (ii) If the CSC determines that the child's behavior was a manifestation of the disability, the child is not subject to removal from current educational placement as a disciplinary action, except as provided for in paragraph H.(1)(i) of this appendix. (A) The child's parents shall be notified of the right to have an IEP meeting before any changes in the child's placement. (B) The CSC shall address the behavior that was the subject of the disciplinary action, by: (i) Reviewing the child's educational placement to ensure that it is appropriate in consideration of the child's behavior. (ii) Revising the IEP to include goals, services, and modifications that address the behavior subject to disciplinary action, as necessary. (iii) If the CSC determines that the child's behavior was not the result in whole or part of the disability, relevant disciplinary procedures may be applied to the child in the same manner in which it would be applied to a child without a disability, except as provided in FAPE. I. Parent Appeal (1) If the parent disagrees with the manifestation determination or with any decision regarding placement, the parent may request a hearing. (2) The school system shall arrange for an expedited hearing in accordance with appendix G of this part. (3) Placement During Appeal. When a parent requests a hearing challenging placement in an interim AES, the child shall remain in the interim AES pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph H.(3) of this appendix whichever comes first, unless [[Page 366]] the parent and the school system agree otherwise. (i) After expiration of the interim AES, during the pendency of any proceedings to challenge the proposed change in placement, the child shall return and remain in the child's placement prior to the interim AES. (ii) If the school personnel maintain that it is dangerous for the child to return to his or her placement prior to the interim AES, the DoD school system may request an expedited hearing. J. Order by a Hearing Officer A hearing officer may order a change in the placement of a child with a disability to an interim AES for not more than 45 days, if the hearing officer: (1) Determines that the DoD school system has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others. (2) Considers the appropriateness of the child's current placement. (3) Considers whether the school system has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and (4) Determines that the interim AES meets the requirements of section A of this appendix. K. Children Not Yet Determined Eligible for Special Education Children who have not yet been determined eligible for special education and who have violated the disciplinary rules and procedures may assert the protections of the IDEA if the DoD school system had knowledge that the child had a disability before the behavior occurred. (1) The DoD school system is considered to have had knowledge if: (i) The parents expressed concern in writing to the school system personnel that the child needed special education or related services. (ii) The child's behavior or performance indicated a need for services. (iii) The child's parents requested an evaluation; or (iv) The child's teacher or other DoD school system personnel expressed concern about the behavior or performance to the CSC, the school principal, assistant principal, or district special education coordinator. (2) If the DoD school system does not have knowledge of a disability prior to disciplinary action, the child shall be subject to the regular disciplinary rules and procedures. (3) If an evaluation were requested during the time the child is subjected to disciplinary action, the evaluation shall be expedited. The child shall remain in his or her current placement until determined eligible for special education or related services. (4) The DoD school system is not constrained from reporting crime to the appropriate law enforcement authorities and shall ensure that special education and disciplinary records are transmitted to the appropriate law enforcement and judicial authorities. L. Children With Disabilities Who Are Placed in a NON-DoD School or Facility (1) Children with disabilities who are eligible to receive a DoD school system education, but are placed in a non-DoD school or facility by a DoD school system, shall have all the rights of children with disabilities who are enrolled in a DoD school. (2) A child with a disability may be placed in a non-DoD school or facility only if required by the IEP. (3) Placement by DoDDS in a host-nation non-DoD school or facility shall be made under the host-nation requirements. (4) Placement by DoDDS in a host-nation non-DoD 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 DoD school system regulations. (5) If a DoD school system places a child with a disability in a non-DoD school or facility as a means of providing special education and related services, the program of that institution, including non-medical care and room and board, as prescribed in the child's IEP, must be provided at no cost to the child or the child's parents. The DoD school system or the responsible DoD Component shall pay the costs in accordance with this part. (6) DoD school officials shall initiate and conduct a meeting to develop an IEP for the child before placement. A representative of the non-DoD school or facility should attend the meeting. If the representative cannot attend, the DoD school system officials shall communicate in other ways to ensure participation including individual or conference telephone calls. The IEP must meet the following standards: (i) Be signed by an authorized DoD school system official before it becomes valid. (ii) Include a determination that the DoD school system does not currently have or cannot reasonably create an educational program appropriate to meet the needs of the child with a disability. (iii) Include a determination that the non-DoD school or facility and its educational program and related services conform to the requirements of this part. (7) Cost of Tuition for Non-DoD School or Facility. The Department of Defense is not authorized to reimburse the costs of special education if a parent unilaterally places the [[Page 367]] student in a non-DoD school without approval of the cognizant CSC and the Superintendent, in coordination with the Director of the DoD school system. A valid IEP must document the necessity of the placement in a non-DoD school or facility. (i) Reimbursement may be required if a hearing officer determines that the DoD school system had not made FAPE available in a timely manner prior to enrollment in the non-DoD school and that the private placement is appropriate. (ii) Reimbursement may be reduced or denied if the parents did not inform the CSC that the placement determined by the CSC was rejected, including a statement of their concerns, and that they intended to place a child in a non-DoD school; or if 10 business days (Monday through Friday, except for Federal holidays) prior to the parents' removal of the child from the school, the parents failed to provide written notice to the DoD school system of their rejection of the placement decision concerning the child, the reasons for their rejection, and their intent to remove the child; or if the CSC informed parents of its intent to evaluate the child, but parents did not make the child available. (iii) Reimbursement may not be reduced or denied for failure to provide the required notice if the parents cannot read and write in English; compliance would result in physical or emotional harm to the child; the DoD school prevented the parent from providing notice; or the parents had not received notice of a requirement to provide required notice. M. Confidentiality of the Records The DoD school system and EDIS officials shall maintain all student records in accordance with DoD Directive 5400.11. N. Dispute Resolution 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 2500.11. Appendix C to Part 57--Procedures for the Provision of Related Services by the Military Medical Departments to DoDDS Students on IEPs A. Evaluation Procedures (1) Upon request by a DoDDS CSC, the responsible EDIS shall ensure that a qualified medical authority conducts or verifies a medical evaluation for use by the CSC in determining the medically related disability that results in a child's need for special education and related services, and oversees an EDIS evaluation used in determining a child's need for related services. (i) This medical or related services evaluation, including necessary consultation with other medical personnel, shall be supervised by a physician or other qualified healthcare provider. (ii) This medical evaluation shall include a review of general health history, current health assessment, systems evaluation to include growth and developmental assessment, and, if pertinent, detailed evaluation of gross motor and fine motor adaptive skills, psychological status, and visual and audiological capabilities, including details of present level of performance in each of these areas affecting the student's performance in school. (iii) The EDIS-related services evaluation shall be specific to the areas addressed in the referral by the CSC. (2) EDIS shall provide a summary evaluation report to the CSC that responds to the questions posed in the original referral. The written report shall include: (i) Demographic information about the child. (ii) Behavioral observation of the child during testing. (iii) Instruments and techniques used. (iv) Evaluation results. (v) Descriptions of the child's strengths and limitations. (vi) Instructional implications of the findings; and (vii) The impact of the child's medical condition(s), if applicable, on his or her educational performance. (3) If EDIS determines that in order to respond to the CSC referral the scope of its assessment and evaluation must be expanded beyond the areas specified in the initial parental permission, EDIS must: (i) Obtain parental permission for the additional activities. (ii) Complete their initial evaluation by the original due date; and (iii) Notify the CSC of the additional evaluation activities. (4) When additional evaluation information is submitted by EDIS, the CSC shall review all data and determine the need for program changes and/or the reconsideration of eligibility. (5) An EDIS provider shall serve on the CSC when eligibility, placement, or requirements for related services that EDIS provides are to be determined. (6) Related services provided by EDIS, pursuant to an IEP, are educational and not medical services. B. IEP (1) EDIS shall be provided the opportunity to participate in the IEP meeting. (2) EDIS shall provide related services assigned to EDIS that are listed on the IEP. [[Page 368]] C. Liaison With DoDDS Each EDIS shall designate an EDIS Liaison Officer to: (1) Provide liaison between the EDIS and DoDDS schools. (2) Offer, on a consultative basis, training for DoDDS personnel on medical aspects of specific disabilities. (3) Offer consultation and advice as needed regarding the health services provided at school (for example, tracheostomy care, tube feeding, occupational therapy). (4) Participate with DoDDS and legal personnel in developing and delivering in-service training programs that include familiarization with various conditions that impair a child's educational endeavors, the relationship of medical findings to educational functioning, related services, and this part. Appendix D to Part 57--The DoD-AP A. Membership (1) The DoD Advisory Panel on Early Intervention and Special Education shall meet as needed in publicly announced, accessible meetings open to the general public and shall comply with DoD Directive 5105.4. The DoD-AP members, appointed by the Secretary of Defense, or designee, shall include at least one representative from each of the following groups: (i) Persons with disabilities. (ii) Representatives of the Surgeons General of the Military Departments. (iii) Representatives of the family support programs of the Military Departments. (iv) Special education teachers from the DoD school system. (v) Regular education teachers from the DoD school system. (vi) Parents of children, ages 3 through 21 years, inclusive, who are receiving special education from the DoD school system. (vii) Parents of children, ages birth through 2 years, inclusive, who are receiving EIS from EDIS. (viii) Institutions of higher education that prepare early intervention, special education, and related services personnel. (ix) Special education program managers from the DoD school systems. (x) Representatives of the Military Departments and overseas commands, including providers of early intervention and related services. (xi) Representatives of vocational community, or business organizations concerned with transition services. (xii) Other appropriate persons. (2) A majority of panel members shall be individuals with disabilities or parents of children, ages birth through 2 years, inclusive, who are receiving EIS from EDIS and children, ages 3 through 21 years, inclusive who are receiving special education from the DoD school system. (3) The DoD-AP members shall serve under appointments that shall be for a term not to exceed 3 years. B. Responsibilities (1) Advise the USD(P&R) of unmet needs within the Department of Defense in the provision of special services to infants, toddlers, and children with disabilities. (2) Advise and assist the Military Departments in the performance of their responsibilities, particularly the identification of appropriate resources and agencies for providing EIS and promoting inter-Component agreements. (3) Advise and assist the DoD schools systems on the provision of special education and related services, and on transition of toddlers with disabilities to preschool services. C. Activities The DoD-AP shall perform the following activities: (1) Review information about improvements in service provided to children with disabilities, ages birth through 21, inclusive, in the Department of Defense. (2) Receive and consider comments from parents, students, professional groups, and individuals with disabilities. (3) Review policy memoranda on effective inter-Department and inter- Component collaboration. (4) Review the findings of fact and decisions of each impartial due process hearing conducted under appendix G of this part. (5) Review reports of technical assistance and monitoring activities. (6) Make recommendations based on program and operational information for changes in policy and procedures and in the budget, organization, and general management of the programs providing special services. (i) Identify strategies to address areas of conflict, overlap, duplication, or omission of services. (ii) When necessary, establish committees for short-term purposes comprised of representatives from parent, student, professional groups, and individuals with disabilities. (iii) Assist in developing and reporting such information and evaluations as may assist the Department of Defense. (iv) Comment publicly on rules or standards about EIS for infants and toddlers, ages birth through 2 years, and special education of children with disabilities, ages 3 through 21 years, inclusive. (v) Perform such other tasks as may be requested by the USD(P&R). [[Page 369]] D. Reporting Requirements (1) Submit an annual report of the DoD-AP's activities and suggestions to the DoD Coordinating Committee, by July 31 of each year. (2) That report is exempt from formal review and licensing under section 5 of DoD Instruction 7750.7 Appendix E to Part 57--DoD-CC on Early Intervention, Special Education, and Related Services A. Committee Membership The DoD-CC shall meet at least yearly to facilitate collaboration in early intervention, special education, and related services in the Department of Defense. The DoD-CC shall consist of the following members, appointed by the Secretary of Defense or designee: (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) A representative of the TRICARE Management Activity. (4) Representatives from the DoD school systems. (5) A representative from the GC, DoD. 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 in the coordination of services among providers of early intervention, special education, and related services. (3) Ensure compliance in the provision of EIS for infants and toddlers and special education and related services for children ages 3 through 21 years, inclusive. (4) Review the recommendations of the DoD-AP to identify common concerns, ensure coordination of effort, and forward issues requiring resolution to the USD(P&R). (5) Assist in the coordination of assignments of sponsors who have children with disabilities who are or who may be eligible for special education and related services in the DoDDS or EIS through the Military Departments. (6) Perform other duties as assigned by the USD(P&R), including monitoring the delivery of services under this part. Appendix F to Part 57--Parent and Student Rights A. Parental Consent (1) 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: (i) Initiation of formal evaluation procedures or re-evaluation. (ii) Provision of EIS or initial educational placement. (iii) Change in EIS or educational placement. (2) If a parent of an infant or toddler (birth through 2 years of age) does not provide consent for participation in all EIS, the services shall still be provided for those interventions to which a parent does give consent. (3) If the parent of a child 3 through 21 years, inclusive, refuses consent to initial evaluation, reevaluation, or initial placement in a special education program, the DoD school system or the parent may do the following: (i) Request a conference between the school and parents. (ii) Request mediation. (iii) Initiate an impartial due process hearing under appendix G of 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 DoD school system's position in the impartial due process hearing, the DoD school system 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. (4) The Department of Defense shall protect the child's rights, by assigning an individual to act as a surrogate for the parents, when after reasonable effort the Department of Defense cannot locate the parents. B. Procedural Safeguards Parents of children with disabilities are afforded the following procedural safeguards, consistent with appendix G of this part to ensure that their children receive appropriate special services: (1) The timely administrative resolution of parental complaints, including hearing procedures with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of EIS for an infant or toddler, age birth through 2 years, or a free appropriate public education for the child, age 3 through 21 years, inclusive. (2) The right to confidentiality of personally identifiable information under DoD Directive 5400.11. (3) The right to provision of written notice and to have furnished consent prior to the release of relevant information outside the Department of Defense. (4) The right to determine whether they, their child, or other family members shall accept or decline any portion of EIS, without jeopardizing the provision of other EIS. [[Page 370]] (5) The opportunity to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP and IEP. (6) Written Notice. The right to prior written notice when the EDIS or school proposes, or refuses, to initiate or change the identification, evaluation, placement or provision of special services to the child with a disability. (i) The notice must be in sufficient detail to inform the parents about: (A) The action that is being proposed or refused; (B) The reasons for taking the action; (C) All procedural safeguards that are available under this part as described in paragraph B.(7) of this appendix; and (D) Conflict resolution procedures, including a description of mediation and due process hearings procedures and applicable timelines, as defined in appendix G of this part. (ii) The notice 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. (7) Procedural Safeguards Notice. Parents must be given a Procedural Safeguards Notice, at a minimum, upon initial referral for evaluation, upon each notification of an IFSP or IEP meeting, upon reevaluation of the child, and upon receipt of a request for due process. (i) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available with regard to the matters in paragraph B.(7) of this appendix including the right to: (A) Independent educational evaluation for school-aged children. (B) Prior written notice. (C) Parental consent. (D) Access to educational or early intervention records. (E) Opportunity to present complaints. (F) The child's placement during pendency of due process proceedings. (G) Procedures for children (3 through 21 years, inclusive) who are subject to placement in an interim alternative educational setting. (H) Requirements for unilateral placement by parents of children in private schools at public expense. (I) Mediation. (J) Due process hearings, including requirements for disclosure of evaluation results and recommendations. (K) Civil actions. (L) The DoD complaint system, including a description of how to file a complaint and the timelines under those procedures. (ii) The procedural safeguards notice must be: (A) Written in language understandable to the general public. (B) 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. If the native language or other mode of communication of the parent is not a written language, the school system shall take steps to ensure that: (i) The notice is translated orally or by other means to the parent in his or her native language or other mode of communication. (ii) The parent understands the content of the notice; and (iii) There is written evidence that the requirements in paragraph B.(7)(ii)(A) and paragraph B.(7)(ii)(B) of this appendix have been met. (8) Independent Educational Evaluation. A parent of a child (3 through 21 years, inclusive) may be entitled to an independent educational evaluation of the child at the expense of the DoD school system if the parent disagrees with the DoD school system's evaluation of the child. (i) If a parent requests an independent educational evaluation at the school system's expense, the DoD school system must, without unnecessary delay, either: (A) Initiate an impartial due process hearing to show that its evaluation is appropriate; or (B) Ensure an independent evaluation is provided at the DoD school system's expense. Unless the DoD school system demonstrates in an impartial due process hearing that an independent evaluation obtained by the parent did not meet DoD school system criteria. In such cases, the parents must bear the cost of the evaluation. (ii) If the DoD school system initiates a hearing and the decision is that the DoD school system's evaluation is appropriate, the parents still have the right to an independent evaluation, but not at the school system's expense. (iii) An independent educational evaluation provided at the DoD school system's expense must do the following: (A) Conform to the requirements of this part. (B) Be conducted, when possible, in the area where the child resides. (C) Meet DoD standards governing persons qualified to conduct an educational evaluation, including an evaluation for related services. (9) The DoD school system, the CSC, and a hearing officer appointed under this part shall consider any evaluation report presented by a parent. (10) 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. [[Page 371]] (11) Due Process Rights. (i) The parent of a child with a disability, the Military Department, or the DoD school system has the opportunity to file a written petition for an impartial due process hearing under appendix G of this part. The petition may concern issues affecting a particular child's identification, evaluation, or placement, or the provision of EIS or a free and appropriate public education. (ii) While an impartial due process hearing or judicial proceeding is pending, unless the EDIS or the DoD school system and the parent of the child agree otherwise, the child shall remain in his or her present educational setting, subject to the disciplinary procedures prescribed in section H of appendix B of this part. (12) Transfer of Parental Rights at Age of Majority. (i) In the DoD school systems, a child reaches the age of majority at age 18. (ii) When a child with a disability reaches the age of majority (except for a child with a disability who has been determined to be incompetent under State law) the rights accorded to parents under this Part transfer to the child. (iii) When a child reaches the age of majority, the DoD school system shall notify the individual and the parents of the transfer of rights. (iv) When a child with a disability who has reached the age of majority, who has not been determined to be incompetent, but who does not have the ability to provide informed consent with respect to his or her educational program, the Department of Defense shall establish procedures for appointing the parent of the child to represent the educational interests of the child throughout the period of eligibility for special education services. Appendix G 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 Part and, as the case may be, the cognizant Military Medical Department or the DoD school system are afforded impartial mediation and/or impartial due process hearings and administrative appeals about the provision of EIS, or the identification, evaluation, educational placement of, and the FAPE provided to, such children by the Department of Defense, in accordance with sections 927 and 1400 of 20 U.S.C. and section 2164 of 10 U.S.C. B. Mediation (1) Mediation may be initiated by either a parent or the Military Medical Department concerned or the DoD school system to resolve informally a disagreement on any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE to such child. (i) The DoD school system shall participate in mediation involving special education and related services. (ii) The cognizant Military Medical Department shall participate in mediation involving EIS. (2) The party initiating mediation must notify the other party to the mediation of its request to mediate. The initiating party's request must be written, include a written description of the dispute and bear the signature of the requesting party. Formal acknowledgement of the request for mediation shall occur in a timely manner. The parties may jointly request mediation. (3) Upon agreement of the parties to mediate a dispute, the Military Medical Department or DoD school shall forward a request for a mediator to higher headquarters, or request a mediator through the Director, Defense Office of Hearings and Appeals (DOHA). (i) The cognizant DoDDS Area Special Education Coordinator or the DDESS District Superintendent shall promptly appoint a mediator. The Director, DOHA, through the DoHA Office of Alternate Dispute Resolution (ADR), shall maintain a roster of mediators trained in ADR methods, knowledgeable in laws and regulations related to special education, and available to mediate disputes upon request. When requested, the Director, DOHA, through the Office of ADR, shall appoint a mediator within 15 business days of receiving the request for a due process hearing, unless a party provides written notice to the Director, DOHA that the party refuses to participate in mediation. (ii) The mediator assigned to a dispute shall not be employed by the Military Medical Department or the DoD school system involved, unless the parties agree otherwise. (4) Unless both parties agree otherwise, mediation shall commence in a timely manner after both parties agree to mediation. (5) The parents of the infant, toddler or child and 2 representatives of the EDIS or DoD school may participate in mediation. With the consent of both parties, other persons may participate in mediation. Either party may recess a mediation session to consult advisors, whether or not present, or to consult privately with the mediator. (6) If the parties resolve the dispute or a portion of the dispute, or agree to use another procedure to resolve the dispute, the mediator shall ensure that the resolution or agreement is reduced to writing and that it is signed and dated by the parties and that a copy is given to each party. The resolution or agreement is legally binding upon the parties. [[Page 372]] (7) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. Unless the parties and the mediator agree, no person may record a mediation session, nor should any written notes be taken from the room by either party. The mediator may require the parties to sign a confidentiality pledge before the commencement of mediation. (8) Parents must be provided an opportunity to meet with appropriate EDIS or DoD school system staff in at least one mediation session, if they request a due process hearing in accordance with sections A through H of this appendix. The parents and the Military Medical Department or DoD school system must participate in mediation, unless a party objects to mediation. (9) Mediation shall not delay hearings or appeals related to the dispute. All mediation sessions shall be held in a location that is convenient to the parties. The Military Medical Department in mediations concerning EIS or the DoD school system in mediations concerning special education and related services shall bear the cost of the mediation process. (10) Any hearing officer or adjudicative body may draw no negative inference from the fact that a mediator or a party withdrew from mediation or that mediation did not result in settlement of a dispute. C. Hearing Administration (1) The Defense Office of Hearings and Appeals (DOHA) shall have administrative responsibility for the proceedings authorized by sections D through H 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 commonwealth, territory or possession of the United States, who are also independent of the DoD school system or the Military Medical Department concerned in proceedings conducted under this appendix. A parent shall have the right to be represented in such proceedings by counsel or by persons with special knowledge or training with respect to the challenges of individuals with disabilities. The DOHA Department Counsel normally shall appear and represent the DoD school system 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 Medical Department responsible under this part for delivering EIS shall either provide its own counsel or request counsel from the DOHA. D. Hearing Practice and Procedure (1) Hearing. (i) Should mediation be refused or otherwise fail to resolve the issues on the provision of EIS 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 Medical Department concerned shall be the only parties to a hearing conducted under this appendix. (ii) 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 DoD school system, 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 DoD school system shall be the only parties to a hearing conducted under this appendix. (2) The parents and the Military Medical Department or DoD school system must have an opportunity to obtain an impartial due process hearing, if the parents object to: (i) A proposed formal educational assessment or proposed denial of a formal educational assessment of their child. (ii) The proposed placement of their child in, or transfer of their child to a special education program. (iii) The proposed denial of placement of their child in a special education program or the transfer of their child from a special education program. (iv) The proposed provision or addition of special education services for their child; or (v) The proposed denial or removal of special education services for their child. (3) The parent or the attorney representing the child shall include in the petition, the name of the child, the address of the residence of the child, the name of the school the child is attending, a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including the facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the parents at the time. (4) The DoD school system may file a written petition for a hearing to override a parent's refusal to grant consent for an initial evaluation, a reevaluation or an initial educational placement of the child. The DoD school system may also file a written petition for a hearing to override a parent's refusal to accept an IEP. (5) The party seeking the hearing shall submit the petition to the Director, DOHA, at P.O. Box 3656, Arlington, Virginia 22203. [[Page 373]] The petitioner shall deliver a copy of the petition to the opposing party (i.e., the parent or the school principal, for the DoD school system, or the military MTF commander, for the Military Medical Department), either in person or by first-class mail, postage prepaid. Delivery is complete on mailing. When the DoD school system or the Military Medical Department petitions for a hearing, it shall inform the other parties of the deadline for filing an answer under paragraph D.(6) of this appendix and shall provide the other parties with a copy of this part. (6) An opposing party shall submit an answer to the petition to the Director, DOHA, with a copy to the petitioner, at the latest by the 15th business day after 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 upon mailing. (7) By 10 business days after receipt of 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. (8) The party requesting the hearing shall plead with specificity as to what issues are in dispute and all issues not specifically pleaded with specificity is deemed waived. Parties must limit evidence to the issues specifically pleaded. A party may amend a pleading if the amendment is filed with the hearing officer and is received by the other parties at least 10 business days before the hearing. (9) The Director, DOHA, shall arrange for the time and place of the hearing, and shall provide administrative support. The hearing shall be held in the DoD school district attended by the child or at the military base location of the EDIS clinic, unless the parties agree otherwise or upon a showing of good cause. (10) 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, title 28, United States Code serving as guide. (11) 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 DoD school system or the Military Medical Department concerned and to call and question witnesses. (12) Those normally authorized to attend a hearing shall be the parents of the individual with disabilities, the counsel or personal representative of the parents, the counsel and professional employees of the DoDDS or the Military Medical 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. The parents have the right to an open hearing on waiving in writing their privacy rights and those of the individual with disabilities who is the subject of the hearing. (13) 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. (14) 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.(16) of this appendix. (15) The hearing officer shall make a full and complete record of a case presented for adjudication. (16) The hearing officer shall decide when the record in a case is closed. (17) The hearing officer shall issue findings of fact and conclusions of law in a case not later than 50 business days after being assigned to the case, unless a request for discovery is made by either party, as provided for in paragraph D.(5) of this appendix in which case the time required for such discovery does not count toward the 50 business days. The hearing officer may grant a specific extension of time for good cause either on his or her own motion or at the request of either party. Good cause includes the time required for mediation under section B of this appendix. If the hearing officer grants an extension of time, he or she shall identify the length of the extension and the reason for the extension in the record of the proceeding. E. Discovery (1) Full 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. (2) If voluntary discovery cannot be accomplished, a party seeking discovery may file a motion with the hearing officer to accomplish discovery. The hearing officer shall [[Page 374]] grant an order to accomplish discovery upon a showing that the requested evidence is relevant and necessary. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is admitted or stipulated as a fact. An order granting discovery shall be enforceable as is an order compelling testimony or the production of evidence. (3) Records compiled or created in the regular course of business, which have been provided to a party prior to hearing in accordance with paragraph E.(2) of this appendix may be received and considered by the officer without authenticating witnesses. F. Witnesses; Production of Evidence (1) 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. (2) A party calling a witness shall bear the witness' travel and incidental expenses associated with testifying at the hearing. The DoD school system or the Military Medical Department concerned shall pay such expenses when a witness is called by the hearing officer. (3) 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 can be shown, on motion of either party. (4) 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. (5) The party or the hearing officer seeking to compel testimony or the production of evidence may, based on the certification provided for in paragraph F.(4) of this appendix file an appropriate action in a court of competent jurisdiction to compel compliance with the hearing officer's order. (6) At least 5 business days prior to a hearing, the parties shall exchange lists of all documents and materials that each party intends to use at the hearing, including all evaluations and reports. Each party also shall disclose the names of all witnesses it intends to call at hearing along with a proffer of the anticipated testimony of each witness. (7) At least 10 business days in advance of hearing, each party must provide the name, title, curriculum vitae, and summary of proposed testimony of any expert witness it intends to call at hearing. (8) Failure to disclose documents, materials, or witnesses pursuant to paragraphs F.(6) and F.(7) of this appendix may result in the hearing officer barring their introduction at the hearing. G. Hearing Officer's Findings of Fact and Decision (1) 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. (2) The Director, DOHA, shall forward to the Director, of the DoD school system, or to the Military Medical Department concerned, 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. (3) The findings of fact and decision of the hearing officer shall become final unless a notice of appeal is filed under section I of this appendix. The DoD school system or the Military Medical Department concerned shall implement the decision as soon as practicable after it becomes final. H. 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 conclusions of law in the period fixed by paragraph D.(17) of this appendix. (2) The DoD school system or the Military Medical Department concerned may oppose a request to waive a 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 F.(6) of this appendix. A party submitting such documents shall provide copies to all other parties. I. 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, at P.O. Box 3656, Arlington, Virginia 22203, within 15 business days of receipt of the findings of fact and conclusions of law. 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 30 business days of receipt of 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 [[Page 375]] a reply or replies to the Director, DOHA, within 20 business 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 45 business days of receiving timely submitted replies under paragraph I.(2) of this appendix. (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 sections 921-932 and chapter 33 of title 20, United States Code to bring a civil action on the matters in dispute in a district court of the United States of competent jurisdiction without regard to the amount in controversy. (5) No provision of this part 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. J. 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. Appendix H to Part 57--Monitoring A. Monitoring (1) The DoDEA and the Military Medical Departments shall establish procedures for monitoring special services requiring: (i) Periodic on-site monitoring at each administrative level. (ii) The DoD school systems to report annually that the provision of special education and related services is in compliance with this part. (iii) The Military Medical Departments to report annually that the provision of EIS is in compliance with this part. (2) The Director, DoDEA, and the Surgeons General of the Military Medical Departments shall submit reports to the DoD-CC not later than July 31 each year that summarize the status of compliance. The reports shall: (i) Identify procedures conducted at Headquarters and at each subordinate level, including on-site visits, to evaluate compliance with this part. (ii) Summarize the findings. (iii) Describe corrective actions required of the programs that were not in compliance and the technical assistance that shall be provided to ensure they reach compliance. B. USD(P&R) Oversight (1) On behalf of the USD(P&R), the DoD-CC or designees, shall make periodic unannounced visits to selected programs to ensure the monitoring process is in place and to validate the compliance data and reporting. The DoD-CC may use other means in addition to the procedures in this section to ensure compliance with the requirements established in this part. (2) For DoD-CC monitoring visits, the Secretaries of the Military Departments, or designees, shall: (i) Provide necessary travel funding and support for their respective team members. (ii) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which they are responsible. (iii) Cooperate with monitoring teams, including making all pertinent records available to the teams. (iv) Address monitoring teams' recommendations concerning early intervention and related services for which the Secretary concerned has responsibility, including those to be furnished through an inter-Service agreement, are promptly implemented. (3) For DoD-CC monitoring visits, the Director, DoDEA shall: (i) Provide necessary travel funding and support for team members from the Office of the Under Secretary (P&R); the Office of GC, DoD; and DoD school systems. (ii) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which he/ she is responsible. (iii) Cooperate with monitoring teams, including making all pertinent records available to the teams. (iv) Address the monitoring teams' recommendations concerning special education and related services for which the DoD school system concerned has responsibility. (4) The ASD(HA), or designee, shall provide technical assistance to the DoD monitoring teams when requested. (5) The GC, DoD, or designee, shall: (i) Provide legal counsel regarding monitoring activities conducted pursuant to this part to the USD(P&R), the ASD(HA), and, where appropriate, to DoDEA, monitored Agencies, and monitoring teams. (ii) Provide advice about the legal requirements of this part and Federal law to the [[Page 376]] DoD school systems, military medical commanders, and military installation commanders, and to other DoD personnel as appropriate, in connection with monitoring activities conducted pursuant to this part.