[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: 34CFR300.122]



[Page 21-22]

 

                           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.  300.122  Exception to FAPE for certain ages.



    (a) General. The obligation to make FAPE available to all children 

with disabilities does not apply with respect to the following:

    (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the 

extent that its application to those children would be inconsistent with 

State law or practice, or the order of any court, respecting the 

provision of public education to children in one or more of those age 

groups.

    (2)(i) Students aged 18 through 21 to the extent that State law does 

not require that special education and related services under Part B of 

the Act be provided to students with disabilities who, in the last 

educational placement prior to their incarceration in an adult 

correctional facility--

    (A) Were not actually identified as being a child with a disability 

under Sec.  300.7; and

    (B) Did not have an IEP under Part B of the Act.

    (ii) The exception in paragraph (a)(2)(i) of this section does not 

apply to students with disabilities, aged 18 through 21, who--

    (A) Had been identified as a child with disability and had received 

services in accordance with an IEP, but who left school prior to their 

incarceration; or

    (B) Did not have an IEP in their last educational setting, but who 

had actually been identified as a ``child with a disability'' under 

Sec.  300.7.

    (3)(i) Students with disabilities who have graduated from high 

school with a regular high school diploma.

    (ii) The exception in paragraph (a)(3)(i) of this section does not 

apply to students who have graduated but



[[Page 22]]



have not been awarded a regular high school diploma.

    (iii) Graduation from high school with a regular diploma constitutes 

a change in placement, requiring written prior notice in accordance with 

Sec.  300.503.

    (b) Documents relating to exceptions. The State must have on file 

with the Secretary--

    (1)(i) Information that describes in detail the extent to which the 

exception in paragraph (a)(1) of this section applies to the State; and

    (ii) A copy of each State law, court order, and other documents that 

provide a basis for the exception; and

    (2) With respect to paragraph (a)(2) of this section, a copy of the 

State law that excludes from services under Part B of the Act certain 

students who are incarcerated in an adult correctional facility.



(Authority: 20 U.S.C. 1412(a)(1)(B))