[Code of Federal Regulations] [Title 34, Volume 2] [Revised as of July 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 34CFR300.121] [Page 20-21] TITLE 34--EDUCATION CHAPTER III--OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES, DEPARTMENT OF EDUCATION PART 300_ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES--Table of Contents Subpart B_State and Local Eligibility Sec. 300.121 Free appropriate public education (FAPE). (a) General. Each State must have on file with the Secretary information that shows that, subject to Sec. 300.122, the State has in effect a policy that ensures that all children with disabilities aged 3 through 21 residing in the State have the right to FAPE, including children with disabilities who have been suspended or expelled from school. (b) Required information. The information described in paragraph (a) of this section must-- (1) Include a copy of each State statute, court order, State Attorney General opinion, and other State documents that show the source of the State's policy relating to FAPE; and (2) Show that the policy-- (i)(A) Applies to all public agencies in the State; and (B) Is consistent with the requirements of Sec. Sec. 300.300- 300.313; and (ii) Applies to all children with disabilities, including children who have been suspended or expelled from school. (c) FAPE for children beginning at age 3. (1) Each State shall ensure that-- (i) The obligation to make FAPE available to each eligible child residing in the State begins no later than the child's third birthday; and (ii) An IEP or an IFSP is in effect for the child by that date, in accordance with Sec. 300.342(c). (2) If a child's third birthday occurs during the summer, the child's IEP team shall determine the date when services under the IEP or IFSP will begin. (d) FAPE for children suspended or expelled from school. (1) A public agency need not provide services during periods of removal under Sec. 300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed. (2) In the case of a child with a disability who has been removed from his [[Page 21]] or her current placement for more than 10 school days in that school year, the public agency, for the remainder of the removals, must-- (i) 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, if the removal is-- (A) Under the school personnel's authority to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under Sec. 300.519(b) (Sec. 300.520((a)(1)); or (B) For behavior that is not a manifestation of the child's disability, consistent with Sec. 300.524; and (ii) Provide services consistent with Sec. 300.522, regarding determination of the appropriate interim alternative educational setting, if the removal is-- (A) For drug or weapons offenses under Sec. 300.520(a)(2); or (B) Based on a hearing officer determination that maintaining the current placement of the child is substantially likely to result in injury to the child or to others if he or she remains in the current placement, consistent with Sec. 300.521. (3)(i) School personnel, in consultation with the child's special education teacher, determine the extent to which services are 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 if the child is removed under the authority of school personnel to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement under Sec. 300.519 (Sec. 300.520(a)(1)). (ii) The child's IEP team determines the extent to which services are 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 if the child is removed because of behavior that has been determined not to be a manifestation of the child's disability, consistent with Sec. 300.524. (e) Children advancing from grade to grade. (1) Each State shall ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child is advancing from grade to grade. (2) The determination that a child described in paragraph (a)(1) of this section is eligible under this part, must be made on an individual basis by the group responsible within the child's LEA for making those determinations. (Authority: 20 U.S.C. 1412(a)(1))