34 C.F.R. §§ 300.101–300.176

§300.101. Free appropriate public education (FAPE).

34 C.F.R. § 300.101

(a)

General. A free appropriate public education must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in § 300.530(d).

(b)

FAPE for children beginning at age 3.

(1)

Each State must 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 § 300.323(b).

(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.

(c)

Children advancing from grade to grade.

(1)

Each State must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.

(2)

The determination that a child described in paragraph (a) 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 eligibility determinations.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.102. Limitation—exception to FAPE for certain ages.

34 C.F.R. § 300.102

(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 of those ages.

(2)

(i)

Children 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 § 300.8; 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 children with disabilities, aged 18 through 21, who—

(A)

Had been identified as a child with a disability under § 300.8 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 § 300.8.

(3)

(i)

Children 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 children who have graduated from high school but have not been awarded a regular high school diploma.

(iii)

Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with § 300.503.

(iv)

As used in paragraphs (a)(3)(i) through (iii) of this section, the term regular high school diploma means the standard high school diploma awarded to the preponderance of students in the State that is fully aligned with State standards, or a higher diploma, except that a regular high school diploma shall not be aligned to the alternate academic achievement standards described in section 1111(b)(1)(E) of the ESEA. A regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential.

(4)

Children with disabilities who are eligible under subpart H of this part, but who receive early intervention services under Part C of the Act.

(b)

Documents relating to exceptions. The State must assure that the information it has provided to the Secretary regarding the exceptions in paragraph (a) of this section, as required by § 300.700 (for purposes of making grants to States under this part), is current and accurate.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

§300.103. FAPE—methods and payments.

34 C.F.R. § 300.103

(a)

Each State may use whatever State, local, Federal, and private sources of support that are available in the State to meet the requirements of this part. For example, if it is necessary to place a child with a disability in a residential facility, a State could use joint agreements between the agencies involved for sharing the cost of that placement.

(b)

Nothing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability.

(c)

Consistent with § 300.323(c), the State must ensure that there is no delay in implementing a child's IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

§300.104. Residential placement

34 C.F.R. § 300.104

If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.105. Assistive technology.

34 C.F.R. § 300.105

(a)

Each public agency must ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in §§ 300.5 and 300.6, respectively, are made available to a child with a disability if required as a part of the child's—

(1)

Special education under § 300.39;

(2)

Related services under § 300.34; or

(3)

Supplementary aids and services under §§ 300.42 and 300.114(a)(2)(ii).

(b)

On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP Team determines that the child needs access to those devices in order to receive FAPE.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

§300.106. Extended school year services.

34 C.F.R. § 300.106

(a)

General.

(1)

Each public agency must ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.

(2)

Extended school year services must be provided only if a child's IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.

(3)

In implementing the requirements of this section, a public agency may not—

(i)

Limit extended school year services to particular categories of disability; or

(ii)

Unilaterally limit the type, amount, or duration of those services.

(b)

Definition. As used in this section, the term extended school year services means special education and related services that—

(1)

Are provided to a child with a disability—

(i)

Beyond the normal school year of the public agency;

(ii)

In accordance with the child's IEP; and

(iii)

At no cost to the parents of the child; and

(2)

Meet the standards of the SEA.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.107. Nonacademic services.

34 C.F.R. § 300.107

The State must ensure the following:

(a)

Each public agency must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

(b)

Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.108. Physical education.

34 C.F.R. § 300.108

The State must ensure that public agencies in the State comply with the following:

(a)

General. Physical education services, specially designed if necessary, must be made available to every child with a disability receiving FAPE, unless the public agency enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

(b)

Regular physical education. Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless—

(1)

The child is enrolled full time in a separate facility; or

(2)

The child needs specially designed physical education, as prescribed in the child's IEP.

(c)

Special physical education. If specially designed physical education is prescribed in a child's IEP, the public agency responsible for the education of that child must provide the services directly or make arrangements for those services to be provided through other public or private programs.

(d)

Education in separate facilities. The public agency responsible for the education of a child with a disability who is enrolled in a separate facility must ensure that the child receives appropriate physical education services in compliance with this section.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.109. Full educational opportunity goal (FEOG).

34 C.F.R. § 300.109

The State must have in effect policies and procedures to demonstrate that the State has established a goal of providing full educational opportunity to all children with disabilities, aged birth through 21, and a detailed timetable for accomplishing that goal.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.110. Program options.

34 C.F.R. § 300.110

The State must ensure that each public agency takes steps to ensure that its children with disabilities have available to them the variety of educational programs and services available to nondisabled children in the area served by the agency, including art, music, industrial arts, consumer and homemaking education, and vocational education.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.111. Child find.

34 C.F.R. § 300.111

(a)

General.

(1)

The State must have in effect policies and procedures to ensure that—

(i)

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and

(ii)

A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

(b)

Use of term developmental delay. The following provisions apply with respect to implementing the child find requirements of this section:

(1)

A State that adopts a definition of developmental delay under § 300.8(b) determines whether the term applies to children aged three through nine, or to a subset of that age range (e.g., ages three through five).

(2)

A State may not require an LEA to adopt and use the term developmental delay for any children within its jurisdiction.

(3)

If an LEA uses the term developmental delay for children described in § 300.8(b), the LEA must conform to both the State's definition of that term and to the age range that has been adopted by the State.

(4)

If a State does not adopt the term developmental delay, an LEA may not independently use that term as a basis for establishing a child's eligibility under this part.

(c)

Other children in child find. Child find also must include—

(1)

Children who are suspected of being a child with a disability under § 300.8 and in need of special education, even though they are advancing from grade to grade; and

(2)

Highly mobile children, including migrant children.

(d)

Construction. Nothing in the Act requires that children be classified by their disability so long as each child who has a disability that is listed in § 300.8 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.112. Individualized education programs (IEP).

34 C.F.R. § 300.112

The State must ensure that an IEP, or an IFSP that meets the requirements of section 636(d) of the Act, is developed, reviewed, and revised for each child with a disability in accordance with §§ 300.320 through 300.324, except as provided in § 300.300(b)(3)(ii).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.113. Routine checking of hearing aids and external components of surgically implanted medical devices.

34 C.F.R. § 300.113

(a)

Hearing aids. Each public agency must ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.

(b)

External components of surgically implanted medical devices.

(1)

Subject to paragraph (b)(2) of this section, each public agency must ensure that the external components of surgically implanted medical devices are functioning properly.

(2)

For a child with a surgically implanted medical device who is receiving special education and related services under this part, a public agency is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.114. LRE requirements.

34 C.F.R. § 300.114

(a)

General.

(1)

Except as provided in § 300.324(d)(2) (regarding children with disabilities in adult prisons), the State must have in effect policies and procedures to ensure that public agencies in the State meet the LRE requirements of this section and §§ 300.115 through 300.120.

(2)

Each public agency must ensure that—

(i)

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and

(ii)

Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(b)

Additional requirement—State funding mechanism—

(1)

General.

(i)

A State funding mechanism must not result in placements that violate the requirements of paragraph (a) of this section; and

(ii)

A State must not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability FAPE according to the unique needs of the child, as described in the child's IEP.

(2)

Assurance. If the State does not have policies and procedures to ensure compliance with paragraph (b)(1) of this section, the State must provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that the mechanism does not result in placements that violate that paragraph.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.115. Continuum of alternative placements.

34 C.F.R. § 300.115

(a)

Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

(b)

The continuum required in paragraph (a) of this section must—

(1)

Include the alternative placements listed in the definition of special education under § 300.39 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and

(2)

Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

§300.116. Placements.

34 C.F.R. § 300.116

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that—

(a)

The placement decision—

(1)

Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and

(2)

Is made in conformity with the LRE provisions of this subpart, including §§ 300.114 through 300.118;

(b)

The child's placement—

(1)

Is determined at least annually;

(2)

Is based on the child's IEP; and

(3)

Is as close as possible to the child's home;

(c)

Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled;

(d)

In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and

(e)

A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.117. Nonacademic settings.

34 C.F.R. § 300.117

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in § 300.107, each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child's IEP Team to be appropriate and necessary for the child to participate in nonacademic settings.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.118. Children in public or private institutions.

34 C.F.R. § 300.118

Except as provided in § 300.149(d) (regarding agency responsibility for general supervision of some individuals in adult prisons), an SEA must ensure that § 300.114 is effectively implemented, including, if necessary, making arrangements with public and private institutions (such as a memorandum of agreement or special implementation procedures).

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

§300.119. Technical assistance and training activities.

34 C.F.R. § 300.119

Each SEA must carry out activities to ensure that teachers and administrators in all public agencies—

(a)

Are fully informed about their responsibilities for implementing § 300.114; and

(b)

Are provided with technical assistance and training necessary to assist them in this effort.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.120. Monitoring activities.

34 C.F.R. § 300.120

(a)

The SEA must carry out activities to ensure that § 300.114 is implemented by each public agency.

(b)

If there is evidence that a public agency makes placements that are inconsistent with § 300.114, the SEA must—

(1)

Review the public agency's justification for its actions; and

(2)

Assist in planning and implementing any necessary corrective action.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.121. Procedural safeguards.

34 C.F.R. § 300.121

(a)

General. The State must have procedural safeguards in effect to ensure that each public agency in the State meets the requirements of §§ 300.500 through 300.536.

(b)

Procedural safeguards identified. Children with disabilities and their parents must be afforded the procedural safeguards identified in paragraph (a) of this section.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.122. Evaluation.

34 C.F.R. § 300.122

Children with disabilities must be evaluated in accordance with §§ 300.300 through 300.311 of subpart D of this part.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.123. Confidentiality of personally identifiable information.

34 C.F.R. § 300.123

The State must have policies and procedures in effect to ensure that public agencies in the State comply with §§ 300.610 through 300.626 related to protecting the confidentiality of any personally identifiable information collected, used, or maintained under Part B of the Act.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.124. Transition of children from the Part C program to preschool programs.

34 C.F.R. § 300.124

The State must have in effect policies and procedures to ensure that—

(a)

Children participating in early intervention programs assisted under Part C of the Act, and who will participate in preschool programs assisted under Part B of the Act, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(9) of the Act;

(b)

By the third birthday of a child described in paragraph (a) of this section, an IEP or, if consistent with § 300.323(b) and section 636(d) of the Act, an IFSP, has been developed and is being implemented for the child consistent with § 300.101(b); and

(c)

Each affected LEA will participate in transition planning conferences arranged by the designated lead agency under section 635(a)(10) of the Act.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.125-300.128. Reserved

34 C.F.R. § 300.125-300.128

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.129. State responsibility regarding children in private schools.

34 C.F.R. § 300.129

The State must have in effect policies and procedures that ensure that LEAs, and, if applicable, the SEA, meet the private school requirements in §§ 300.130 through 300.148.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.130. Definition of parentally-placed private school children with disabilities.

34 C.F.R. § 300.130

Parentally-placed private school children with disabilities means children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school in § 300.13 or secondary school in § 300.36, other than children with disabilities covered under §§ 300.145 through 300.147.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.131. Child find for parentally-placed private school children with disabilities.

34 C.F.R. § 300.131

(a)

General. Each LEA must locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, in accordance with paragraphs (b) through (e) of this section, and §§ 300.111 and 300.201.

(b)

Child find design. The child find process must be designed to ensure—

(1)

The equitable participation of parentally-placed private school children; and

(2)

An accurate count of those children.

(c)

Activities. In carrying out the requirements of this section, the LEA, or, if applicable, the SEA, must undertake activities similar to the activities undertaken for the agency's public school children.

(d)

Cost. The cost of carrying out the child find requirements in this section, including individual evaluations, may not be considered in determining if an LEA has met its obligation under § 300.133.

(e)

Completion period. The child find process must be completed in a time period comparable to that for students attending public schools in the LEA consistent with § 300.301.

(f)

Out-of-State children. Each LEA in which private, including religious, elementary schools and secondary schools are located must, in carrying out the child find requirements in this section, include parentally-placed private school children who reside in a State other than the State in which the private schools that they attend are located.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.132. Provision of services for parentally-placed private school children with disabilities—basic requirement.

34 C.F.R. § 300.132

(a)

General. To the extent consistent with the number and location of children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, provision is made for the participation of those children in the program assisted or carried out under Part B of the Act by providing them with special education and related services, including direct services determined in accordance with § 300.137, unless the Secretary has arranged for services to those children under the by-pass provisions in §§ 300.190 through 300.198.

(b)

Services plan for parentally-placed private school children with disabilities. In accordance with paragraph (a) of this section and §§ 300.137 through 300.139, a services plan must be developed and implemented for each private school child with a disability who has been designated by the LEA in which the private school is located to receive special education and related services under this part.

(c)

Record keeping. Each LEA must maintain in its records, and provide to the SEA, the following information related to parentally-placed private school children covered under §§ 300.130 through 300.144:

(1)

The number of children evaluated;

(2)

The number of children determined to be children with disabilities; and

(3)

The number of children served.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.133. Expenditures.

34 C.F.R. § 300.133

(a)

Formula. To meet the requirement of § 300.132(a), each LEA must spend the following on providing special education and related services (including direct services) to parentally-placed private school children with disabilities:

(1)

For children aged 3 through 21, an amount that is the same proportion of the LEA's total subgrant under section 611(f) of the Act as the number of private school children with disabilities aged 3 through 21 who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, is to the total number of children with disabilities in its jurisdiction aged 3 through 21.

(2)

(i)

For children aged three through five, an amount that is the same proportion of the LEA's total subgrant under section 619(g) of the Act as the number of parentally-placed private school children with disabilities aged three through five who are enrolled by their parents in a private, including religious, elementary school located in the school district served by the LEA, is to the total number of children with disabilities in its jurisdiction aged three through five.

(ii)

As described in paragraph (a)(2)(i) of this section, children aged three through five are considered to be parentally-placed private school children with disabilities enrolled by their parents in private, including religious, elementary schools, if they are enrolled in a private school that meets the definition of elementary school in § 300.13.

(3)

If an LEA has not expended for equitable services all of the funds described in paragraphs (a)(1) and (a)(2) of this section by the end of the fiscal year for which Congress appropriated the funds, the LEA must obligate the remaining funds for special education and related services (including direct services) to parentally-placed private school children with disabilities during a carry-over period of one additional year.

(b)

Calculating proportionate amount. In calculating the proportionate amount of Federal funds to be provided for parentally-placed private school children with disabilities, the LEA, after timely and meaningful consultation with representatives of private schools under § 300.134, must conduct a thorough and complete child find process to determine the number of parentally-placed children with disabilities attending private schools located in the LEA. (See appendix B for an example of how proportionate share is calculated).

(c)

Annual count of the number of parentally-placed private school children with disabilities.

(1)

Each LEA must—

(i)

After timely and meaningful consultation with representatives of parentally-placed private school children with disabilities (consistent with § 300.134), determine the number of parentally-placed private school children with disabilities attending private schools located in the LEA; and

(ii)

Ensure that the count is conducted on any date between October 1 and December 1, inclusive, of each year.

(2)

The count must be used to determine the amount that the LEA must spend on providing special education and related services to parentally-placed private school children with disabilities in the next subsequent fiscal year.

(d)

Supplement, not supplant. State and local funds may supplement and in no case supplant the proportionate amount of Federal funds required to be expended for parentally-placed private school children with disabilities under this part.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.134. Consultation.

34 C.F.R. § 300.134

To ensure timely and meaningful consultation, an LEA, or, if appropriate, an SEA, must consult with private school representatives and representatives of parents of parentally-placed private school children with disabilities during the design and development of special education and related services for the children regarding the following:

(a)

Child find. The child find process, including—

(1)

How parentally-placed private school children suspected of having a disability can participate equitably; and

(2)

How parents, teachers, and private school officials will be informed of the process.

(b)

Proportionate share of funds. The determination of the proportionate share of Federal funds available to serve parentally-placed private school children with disabilities under § 300.133(b), including the determination of how the proportionate share of those funds was calculated.

(c)

Consultation process. The consultation process among the LEA, private school officials, and representatives of parents of parentally-placed private school children with disabilities, including how the process will operate throughout the school year to ensure that parentally-placed children with disabilities identified through the child find process can meaningfully participate in special education and related services.

(d)

Provision of special education and related services. How, where, and by whom special education and related services will be provided for parentally-placed private school children with disabilities, including a discussion of—

(1)

The types of services, including direct services and alternate service delivery mechanisms; and

(2)

How special education and related services will be apportioned if funds are insufficient to serve all parentally-placed private school children; and

(3)

How and when those decisions will be made;

(e)

Written explanation by LEA regarding services. How, if the LEA disagrees with the views of the private school officials on the provision of services or the types of services (whether provided directly or through a contract), the LEA will provide to the private school officials a written explanation of the reasons why the LEA chose not to provide services directly or through a contract.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.135. Written affirmation.

34 C.F.R. § 300.135

(a)

When timely and meaningful consultation, as required by § 300.134, has occurred, the LEA must obtain a written affirmation signed by the representatives of participating private schools.

(b)

If the representatives do not provide the affirmation within a reasonable period of time, the LEA must forward the documentation of the consultation process to the SEA.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.136. Compliance.

34 C.F.R. § 300.136

(a)

General. A private school official has the right to submit a complaint to the SEA that the LEA—

(1)

Did not engage in consultation that was meaningful and timely; or

(2)

Did not give due consideration to the views of the private school official.

(b)

Procedure.

(1)

If the private school official wishes to submit a complaint, the official must provide to the SEA the basis of the noncompliance by the LEA with the applicable private school provisions in this part; and

(2)

The LEA must forward the appropriate documentation to the SEA.

(3)

(i)

If the private school official is dissatisfied with the decision of the SEA, the official may submit a complaint to the Secretary by providing the information on noncompliance described in paragraph (b)(1) of this section; and

(ii)

The SEA must forward the appropriate documentation to the Secretary.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.137. Equitable services determined.

34 C.F.R. § 300.137

(a)

No individual right to special education and related services. No parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.

(b)

Decisions.

(1)

Decisions about the services that will be provided to parentally-placed private school children with disabilities under §§ 300.130 through 300.144 must be made in accordance with paragraph (c) of this section and § 300.134(d).

(2)

The LEA must make the final decisions with respect to the services to be provided to eligible parentally-placed private school children with disabilities.

(c)

Services plan for each child served under §§ 300.130 through 300.144. If a child with a disability is enrolled in a religious or other private school by the child's parents and will receive special education or related services from an LEA, the LEA must—

(1)

Initiate and conduct meetings to develop, review, and revise a services plan for the child, in accordance with § 300.138(b); and

(2)

Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the religious or other private school, including individual or conference telephone calls.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

§300.138. Equitable services provided.

34 C.F.R. § 300.138

(a)

General.

(1)

The services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the special education teacher qualification requirements in § 300.156(c).

(2)

Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools.

(b)

Services provided in accordance with a services plan.

(1)

Each parentally-placed private school child with a disability who has been designated to receive services under § 300.132 must have a services plan that describes the specific special education and related services that the LEA will provide to the child in light of the services that the LEA has determined, through the process described in §§ 300.134 and 300.137, it will make available to parentally-placed private school children with disabilities.

(2)

The services plan must, to the extent appropriate—

(i)

Meet the requirements of § 300.320, or for a child ages three through five, meet the requirements of § 300.323(b) with respect to the services provided; and

(ii)

Be developed, reviewed, and revised consistent with §§ 300.321 through 300.324.

(c)

Provision of equitable services.

(1)

The provision of services pursuant to this section and §§ 300.139 through 300.143 must be provided:

(i)

By employees of a public agency; or

(ii)

Through contract by the public agency with an individual, association, agency, organization, or other entity.

(2)

Special education and related services provided to parentally-placed private school children with disabilities, including materials and equipment, must be secular, neutral, and nonideological.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

§300.139. Location of services and transportation.

34 C.F.R. § 300.139

(a)

Services on private school premises. Services to parentally-placed private school children with disabilities may be provided on the premises of private, including religious, schools, to the extent consistent with law.

(b)

Transportation—

(1)

General.

(i)

If necessary for the child to benefit from or participate in the services provided under this part, a parentally-placed private school child with a disability must be provided transportation—

(A)

From the child's school or the child's home to a site other than the private school; and

(B)

From the service site to the private school, or to the child's home, depending on the timing of the services.

(ii)

LEAs are not required to provide transportation from the child's home to the private school.

(2)

Cost of transportation. The cost of the transportation described in paragraph (b)(1)(i) of this section may be included in calculating whether the LEA has met the requirement of § 300.133.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.140. Due process complaints and State complaints.

34 C.F.R. § 300.140

(a)

Due process not applicable, except for child find.

(1)

Except as provided in paragraph (b) of this section, the procedures in §§ 300.504 through 300.519 do not apply to complaints that an LEA has failed to meet the requirements of §§ 300.132 through 300.139, including the provision of services indicated on the child's services plan.

(b)

Child find complaints—to be filed with the LEA in which the private school is located.

(1)

The procedures in §§ 300.504 through 300.519 apply to complaints that an LEA has failed to meet the child find requirements in § 300.131, including the requirements in §§ 300.300 through 300.311.

(2)

Any due process complaint regarding the child find requirements (as described in paragraph (b)(1) of this section) must be filed with the LEA in which the private school is located and a copy must be forwarded to the SEA.

(c)

State complaints.

(1)

Any complaint that an SEA or LEA has failed to meet the requirements in §§ 300.132 through 300.135 and 300.137 through 300.144 must be filed in accordance with the procedures described in §§ 300.151 through 300.153.

(2)

A complaint filed by a private school official under § 300.136(a) must be filed with the SEA in accordance with the procedures in § 300.136(b).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.141. Requirement that funds not benefit a private school.

34 C.F.R. § 300.141

(a)

An LEA may not use funds provided under section 611 or 619 of the Act to finance the existing level of instruction in a private school or to otherwise benefit the private school.

(b)

The LEA must use funds provided under Part B of the Act to meet the special education and related services needs of parentally-placed private school children with disabilities, but not for meeting—

(1)

The needs of a private school; or

(2)

The general needs of the students enrolled in the private school.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.142. Use of personnel.

34 C.F.R. § 300.142

(a)

Use of public school personnel. An LEA may use funds available under sections 611 and 619 of the Act to make public school personnel available in other than public facilities—

(1)

To the extent necessary to provide services under §§ 300.130 through 300.144 for parentally-placed private school children with disabilities; and

(2)

If those services are not normally provided by the private school.

(b)

Use of private school personnel. An LEA may use funds available under sections 611 and 619 of the Act to pay for the services of an employee of a private school to provide services under §§ 300.130 through 300.144 if—

(1)

The employee performs the services outside of his or her regular hours of duty; and

(2)

The employee performs the services under public supervision and control.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.143. Separate classes prohibited.

34 C.F.R. § 300.143

An LEA may not use funds available under section 611 or 619 of the Act for classes that are organized separately on the basis of school enrollment or religion of the children if—'

(a)

The classes are at the same site; and

(b)

The classes include children enrolled in public schools and children enrolled in private schools.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.144. Property, equipment, and supplies.

34 C.F.R. § 300.144

(a)

A public agency must control and administer the funds used to provide special education and related services under §§ 300.137 through 300.139, and hold title to and administer materials, equipment, and property purchased with those funds for the uses and purposes provided in the Act.

(b)

The public agency may place equipment and supplies in a private school for the period of time needed for the Part B program.

(c)

The public agency must ensure that the equipment and supplies placed in a private school—

(1)

Are used only for Part B purposes; and

(2)

Can be removed from the private school without remodeling the private school facility.

(d)

The public agency must remove equipment and supplies from a private school if—

(1)

The equipment and supplies are no longer needed for Part B purposes; or

(2)

Removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes.

(e)

No funds under Part B of the Act may be used for repairs, minor remodeling, or construction of private school facilities.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.145. Applicability of §§ 300.146 through 300.147.

34 C.F.R. § 300.145

Sections 300.146 through 300.147 apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.146. Responsibility of SEA.

34 C.F.R. § 300.146

Each SEA must ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency—

(a)

Is provided special education and related services—

(1)

In conformance with an IEP that meets the requirements of §§ 300.320 through 300.325; and

(2)

At no cost to the parents;

(b)

Is provided an education that meets the standards that apply to education provided by the SEA and LEAs including the requirements of this part, except for § 300.156(c); and

(c)

Has all of the rights of a child with a disability who is served by a public agency.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

§300.147. Implementation by SEA.

34 C.F.R. § 300.147

In implementing § 300.146, the SEA must—

(a)

Monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires;

(b)

Disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a child with a disability; and

(c)

Provide an opportunity for those private schools and facilities to participate in the development and revision of State standards that apply to them.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.148. Placement of children by parents when FAPE is at issue.

34 C.F.R. § 300.148

(a)

General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.

(b)

Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.

(c)

Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.

(d)

Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied—

(1)

If—

(i)

At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(ii)

At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;

(2)

If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or

(3)

Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(e)

Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement—

(1)

Must not be reduced or denied for failure to provide the notice if—

(i)

The school prevented the parents from providing the notice;

(ii)

The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or

(iii)

Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and

(2)

May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if—

(i)

The parents are not literate or cannot write in English; or

(ii)

Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.149. SEA responsibility for general supervision.

34 C.F.R. § 300.149

(a)

The SEA is responsible for ensuring—

(1)

That the requirements of this part are carried out; and

(2)

That each educational program for children with disabilities administered within the State, including each program administered by any other State or local agency (but not including elementary schools and secondary schools for Indian children operated or funded by the Secretary of the Interior)—

(i)

Is under the general supervision of the persons responsible for educational programs for children with disabilities in the SEA; and

(ii)

Meets the educational standards of the SEA (including the requirements of this part).

(3)

In carrying out this part with respect to homeless children, the requirements of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met.

(b)

The State must have in effect policies and procedures to ensure that it complies with the monitoring and enforcement requirements in §§ 300.600 through 300.602 and §§ 300.606 through 300.608.

(c)

Part B of the Act does not limit the responsibility of agencies other than educational agencies for providing or paying some or all of the costs of FAPE to children with disabilities in the State.

(d)

Notwithstanding paragraph (a) of this section, the Governor (or another individual pursuant to State law) may assign to any public agency in the State the responsibility of ensuring that the requirements of Part B of the Act are met with respect to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.150. SEA implementation of procedural safeguards.

34 C.F.R. § 300.150

The SEA (and any agency assigned responsibility pursuant to § 300.149(d)) must have in effect procedures to inform each public agency of its responsibility for ensuring effective implementation of procedural safeguards for the children with disabilities served by that public agency.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.151. Adoption of State complaint procedures.

34 C.F.R. § 300.151

(a)

General. Each SEA must adopt written procedures for—

(1)

Resolving any complaint, including a complaint filed by an organization or individual from another State, that meets the requirements of § 300.153 by—

(i)

Providing for the filing of a complaint with the SEA; and

(ii)

At the SEA's discretion, providing for the filing of a complaint with a public agency and the right to have the SEA review the public agency's decision on the complaint; and

(2)

Widely disseminating to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the State procedures under §§ 300.151 through 300.153.

(b)

Remedies for denial of appropriate services. In resolving a complaint in which the SEA has found a failure to provide appropriate services, an SEA, pursuant to its general supervisory authority under Part B of the Act, must address—

(1)

The failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and

(2)

Appropriate future provision of services for all children with disabilities.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.152. Minimum State complaint procedures.

34 C.F.R. § 300.152

(a)

Time limit; minimum procedures. Each SEA must include in its complaint procedures a time limit of 60 days after a complaint is filed under § 300.153 to—

(1)

Carry out an independent on-site investigation, if the SEA determines that an investigation is necessary;

(2)

Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

(3)

Provide the public agency with the opportunity to respond to the complaint, including, at a minimum—

(i)

At the discretion of the public agency, a proposal to resolve the complaint; and

(ii)

An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with § 300.506;

(4)

Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part; and

(5)

Issue a written decision to the complainant that addresses each allegation in the complaint and contains—

(i)

Findings of fact and conclusions; and

(ii)

The reasons for the SEA's final decision.

(b)

Time extension; final decision; implementation. The SEA's procedures described in paragraph (a) of this section also must—

(1)

Permit an extension of the time limit under paragraph (a) of this section only if—

(i)

Exceptional circumstances exist with respect to a particular complaint; or

(ii)

The parent (or individual or organization, if mediation or other alternative means of dispute resolution is available to the individual or organization under State procedures) and the public agency involved agree to extend the time to engage in mediation pursuant to paragraph (a)(3)(ii) of this section, or to engage in other alternative means of dispute resolution, if available in the State; and

(2)

Include procedures for effective implementation of the SEA's final decision, if needed, including—

(i)

Technical assistance activities;

(ii)

Negotiations; and

(iii)

Corrective actions to achieve compliance.

(c)

Complaints filed under this section and due process hearings under § 300.507 and §§ 300.530 through 300.532.

(1)

If a written complaint is received that is also the subject of a due process hearing under § 300.507 or §§ 300.530 through 300.532, or contains multiple issues of which one or more are part of that hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.

(2)

If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties—

(i)

The due process hearing decision is binding on that issue; and

(ii)

The SEA must inform the complainant to that effect.

(3)

A complaint alleging a public agency's failure to implement a due process hearing decision must be resolved by the SEA.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.153. Filing a complaint.

34 C.F.R. § 300.153

(a)

An organization or individual may file a signed written complaint under the procedures described in §§ 300.151 through 300.152.

(b)

The complaint must include—

(1)

A statement that a public agency has violated a requirement of Part B of the Act or of this part;

(2)

The facts on which the statement is based;

(3)

The signature and contact information for the complainant; and

(4)

If alleging violations with respect to a specific child—

(i)

The name and address of the residence of the child;

(ii)

The name of the school the child is attending;

(iii)

In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;

(iv)

A description of the nature of the problem of the child, including facts relating to the problem; and

(v)

A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(c)

The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with § 300.151.

(d)

The party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child at the same time the party files the complaint with the SEA.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.154. Methods of ensuring services.

34 C.F.R. § 300.154

(a)

Establishing responsibility for services. The Chief Executive Officer of a State or designee of that officer must ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each noneducational public agency described in paragraph (b) of this section and the SEA, in order to ensure that all services described in paragraph (b)(1) of this section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under paragraph (a)(3) of this section. The agreement or mechanism must include the following:

(1)

An identification of, or a method for defining, the financial responsibility of each agency for providing services described in paragraph (b)(1) of this section to ensure FAPE to children with disabilities. The financial responsibility of each noneducational public agency described in paragraph (b) of this section, including the State Medicaid agency and other public insurers of children with disabilities, must precede the financial responsibility of the LEA (or the State agency responsible for developing the child's IEP).

(2)

The conditions, terms, and procedures under which an LEA must be reimbursed by other agencies.

(3)

Procedures for resolving interagency disputes (including procedures under which LEAs may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.

(4)

Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in paragraph (b)(1) of this section.

(b)

Obligation of noneducational public agencies.

(1)

(i)

If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to paragraph (a) of this section, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in § 300.5 relating to assistive technology devices, § 300.6 relating to assistive technology services, § 300.34 relating to related services, § 300.42 relating to supplementary aids and services, and § 300.43 relating to transition services) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency must fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to paragraph (a) of this section or an agreement pursuant to paragraph (c) of this section.

(ii)

A noneducational public agency described in paragraph (b)(1)(i) of this section may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.

(2)

If a public agency other than an educational agency fails to provide or pay for the special education and related services described in paragraph (b)(1) of this section, the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner. The LEA or State agency is authorized to claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services and that agency must reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism described in paragraph (a) of this section.

(c)

Special rule. The requirements of paragraph (a) of this section may be met through—

(1)

State statute or regulation;

(2)

Signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or

(3)

Other appropriate written methods as determined by the Chief Executive Officer of the State or designee of that officer and approved by the Secretary.

(d)

Children with disabilities who are covered by public benefits or insurance.

(1)

A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under this part, as permitted under the public benefits or insurance program, except as provided in paragraph (d)(2) of this section.

(2)

With regard to services required to provide FAPE to an eligible child under this part, the public agency—

(i)

May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under Part B of the Act;

(ii)

May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parents otherwise would be required to pay;

(iii)

May not use a child's benefits under a public benefits or insurance program if that use would—

(A)

Decrease available lifetime coverage or any other insured benefit;

(B)

Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;

(C)

Increase premiums or lead to the discontinuation of benefits or insurance; or

(D)

Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and

(iv)

Prior to accessing a child's or parent's public benefits or insurance for the first time, and after providing notification to the child's parents consistent with paragraph (d)(2)(v) of this section, must obtain written, parental consent that—

(A)

Meets the requirements of § 99.30 of this title and § 300.622, which consent must specify the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular child), the purpose of the disclosure (e.g., billing for services under part 300), and the agency to which the disclosure may be made (e.g., the State's public benefits or insurance program (e.g., Medicaid)); and

(B)

Specifies that the parent understands and agrees that the public agency may access the parent's or child's public benefits or insurance to pay for services under part 300.

(v)

Prior to accessing a child's or parent's public benefits or insurance for the first time, and annually thereafter, must provide written notification, consistent with § 300.503(c), to the child's parents, that includes—

(A)

A statement of the parental consent provisions in paragraphs (d)(2)(iv)(A) and (B) of this section;

(B)

A statement of the “no cost” provisions in paragraphs (d)(2)(i) through (iii) of this section;

(C)

A statement that the parents have the right under 34 CFR part 99 and part 300 to withdraw their consent to disclosure of their child's personally identifiable information to the agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) at any time; and

(D)

A statement that the withdrawal of consent or refusal to provide consent under 34 CFR part 99 and part 300 to disclose personally identifiable information to the agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

(e)

Children with disabilities who are covered by private insurance.

(1)

With regard to services required to provide FAPE to an eligible child under this part, a public agency may access the parents' private insurance proceeds only if the parents provide consent consistent with § 300.9.

(2)

Each time the public agency proposes to access the parents' private insurance proceeds, the agency must—

(i)

Obtain parental consent in accordance with paragraph (e)(1) of this section; and

(ii)

Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

(f)

Use of Part B funds.

(1)

If a public agency is unable to obtain parental consent to use the parents' private insurance, or public benefits or insurance when the parents would incur a cost for a specified service required under this part, to ensure FAPE the public agency may use its Part B funds to pay for the service.

(2)

To avoid financial cost to parents who otherwise would consent to use private insurance, or public benefits or insurance if the parents would incur a cost, the public agency may use its Part B funds to pay the cost that the parents otherwise would have to pay to use the parents' benefits or insurance (e.g., the deductible or co-pay amounts).

(g)

Proceeds from public benefits or insurance or private insurance.

(1)

Proceeds from public benefits or insurance or private insurance will not be treated as program income for purposes of 2 CFR 200.307

(2)

If a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under this part, those funds will not be considered “State or local” funds for purposes of the maintenance of effort provisions in §§ 300.163 and 300.203.

(h)

Construction. Nothing in this part should be construed to alter the requirements imposed on a State Medicaid agency, or any other agency administering a public benefits or insurance program by Federal statute, regulations or policy under title XIX, or title XXI of the Social Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa through 1397jj, or any other public benefits or insurance program.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 78 FR 10537, Feb. 14, 2013; 79 FR 76096, Dec. 19, 2014; 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 78 FR 10537, Feb. 14, 2013; 79 FR 76096, Dec. 19, 2014; 82 FR 29759, June 30, 2017]

§300.155. Hearings relating to LEA eligibility.

34 C.F.R. § 300.155

The SEA must not make any final determination that an LEA is not eligible for assistance under Part B of the Act without first giving the LEA reasonable notice and an opportunity for a hearing under 34 CFR 76.401(d).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.156. Personnel qualifications.

34 C.F.R. § 300.156

(a)

General. The SEA must establish and maintain qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.

(b)

Related services personnel and paraprofessionals. The qualifications under paragraph (a) of this section must include qualifications for related services personnel and paraprofessionals that—

(1)

Are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; and

(2)

Ensure that related services personnel who deliver services in their discipline or profession—

(i)

Meet the requirements of paragraph (b)(1) of this section; and

(ii)

Have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii)

Allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this part to be used to assist in the provision of special education and related services under this part to children with disabilities.

(c)

Qualifications for special education teachers.

(1)

The qualifications described in paragraph (a) of this section must ensure that each person employed as a public school special education teacher in the State who teaches in an elementary school, middle school, or secondary school—

(i)

Has obtained full State certification as a special education teacher (including certification obtained through an alternate route to certification as a special educator, if such alternate route meets minimum requirements described in 34 CFR 200.56(a)(2)(ii) as such section was in effect on November 28, 2008), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, the teacher must meet the certification or licensing requirements, if any, set forth in the State's public charter school law;

(ii)

Has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii)

Holds at least a bachelor's degree.

(2)

A teacher will be considered to meet the standard in paragraph (c)(1)(i) of this section if that teacher is participating in an alternate route to special education certification program under which—

(i)

The teacher—

(A)

Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;

(B)

Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;

(C)

Assumes functions as a teacher only for a specified period of time not to exceed three years; and

(D)

Demonstrates satisfactory progress toward full certification as prescribed by the State; and

(ii)

The State ensures, through its certification and licensure process, that the provisions in paragraph (c)(2)(i) of this section are met.

(d)

Policy. In implementing this section, a State must adopt a policy that includes a requirement that LEAs in the State take measurable steps to recruit, hire, train, and retain personnel who meet the applicable requirements described in paragraph (c) of this section to provide special education and related services under this part to children with disabilities.

(e)

Rule of construction. Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be construed to create a right of action on behalf of an individual student or a class of students for the failure of a particular SEA or LEA employee to meet the applicable requirements described in paragraph (c) of this section, or to prevent a parent from filing a complaint about staff qualifications with the SEA as provided for under this part.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29759, June 30, 2017]

§300.157. Performance goals and indicators.

34 C.F.R. § 300.157

The State must—

(a)

Have in effect established goals for the performance of children with disabilities in the State that—

(1)

Promote the purposes of this part, as stated in § 300.1;

(2)

Are the same as the State's long-term goals and measurements of interim progress for children with disabilities under section 1111(c)(4)(A)(i) of the ESEA.

(3)

Address graduation rates and dropout rates, as well as such other factors as the State may determine; and

(4)

Are consistent, to the extent appropriate, with any other goals and academic standards for children established by the State;

(b)

Have in effect established performance indicators the State will use to assess progress toward achieving the goals described in paragraph (a) of this section, including measurements of interim progress for children with disabilities under section 1111(c)(4)(A)(i)(cc) of the ESEA, 20 U.S.C. 6311; and

(c)

Annually report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under paragraph (a) of this section, which may include elements of the reports required under section 1111(h) of the ESEA.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29760, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 29760, June 30, 2017]

§300.158-300.159. Reserved

34 C.F.R. § 300.158-300.159

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.160. Participation in assessments.

34 C.F.R. § 300.160

(a)

General. A State must ensure that all children with disabilities are included in all general State and district-wide assessment programs, including assessments described under section 1111 of the ESEA, 20 U.S.C. 6311, with appropriate accommodations and alternate assessments, if necessary, as indicated in their respective IEPs.

(b)

Accommodation guidelines.

(1)

A State (or, in the case of a district-wide assessment, an LEA) must develop guidelines for the provision of appropriate accommodations.

(2)

The State's (or, in the case of a district-wide assessment, the LEA's) guidelines must—

(i)

Identify only those accommodations for each assessment that do not invalidate the score; and

(ii)

Instruct IEP Teams to select, for each assessment, only those accommodations that do not invalidate the score.

(c)

Alternate assessments aligned with alternate academic achievement standards for students with the most significant cognitive disabilities.

(1)

If a State has adopted alternate academic achievement standards for children with disabilities who are students with the most significant cognitive disabilities as permitted in section 1111(b)(1)(E) of the ESEA, the State (or, in the case of a district-wide assessment, an LEA) must develop and implement alternate assessments and guidelines for the participation in alternate assessments of those children with disabilities who cannot participate in regular assessments, even with accommodations, as indicated in their respective IEPs, as provided in paragraph (a) of this section.

(2)

For assessing the academic progress of children with disabilities who are students with the most significant cognitive disabilities under title I of the ESEA, the alternate assessments and guidelines in paragraph (c)(1) of this section must—

(i)

Be aligned with the challenging State academic content standards under section 1111(b)(1) of the ESEA and alternate academic achievement standards under section 1111(b)(1)(E) of the ESEA; and

(ii)

Measure the achievement of children with disabilities who are students with the most significant cognitive disabilities against those standards.

(3)

Consistent with section 1111(b)(1)(E)(ii) of the ESEA and 34 CFR 200.6(c)(6), a State may not adopt modified academic achievement standards or any other alternate academic achievement standards that do not meet the requirements in section 1111(b)(1)(E) of the ESEA for any children with disabilities under section 602(3) of the IDEA.

(d)

Explanation to IEP Teams. A State (or in the case of a district-wide assessment, an LEA) must—

(1)

Provide to IEP teams a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on alternate academic achievement standards, including any effects of State and local policies on a student's education resulting from taking an alternate assessment aligned with alternate academic achievement standards, such as how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma; and

(2)

Not preclude a student with the most significant cognitive disabilities who takes an alternate assessment aligned with alternate academic achievement standards from attempting to complete the requirements for a regular high school diploma.

(e)

Inform parents. A State (or in the case of a district-wide assessment, an LEA) must ensure that parents of students selected to be assessed using an alternate assessment aligned with alternate academic achievement standards under the State's guidelines in paragraph (c)(1) of this section are informed, consistent with 34 CFR 200.2(e), that their child's achievement will be measured based on alternate academic achievement standards, and of how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma.

(f)

Reports. An SEA (or, in the case of a district-wide assessment, an LEA) must make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(1)

The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations (that did not result in an invalid score) in order to participate in those assessments.

(2)

The number of children with disabilities, if any, participating in alternate assessments based on grade-level academic achievement standards in school years prior to 2017-2018.

(3)

The number of children with disabilities, if any, participating in alternate assessments aligned with modified academic achievement standards in school years prior to 2016-2017.

(4)

The number of children with disabilities who are students with the most significant cognitive disabilities participating in alternate assessments aligned with alternate academic achievement standards.

(5)

Compared with the achievement of all children, including children with disabilities, the performance results of children with disabilities on regular assessments, alternate assessments based on grade-level academic achievement standards (prior to 2017-2018), alternate assessments based on modified academic achievement standards (prior to 2016-2017), and alternate assessments aligned with alternate academic achievement standards if—

(i)

The number of children participating in those assessments is sufficient to yield statistically reliable information; and

(ii)

Reporting that information will not reveal personally identifiable information about an individual student on those assessments.

(g)

Universal design. An SEA (or, in the case of a district-wide assessment, an LEA) must, to the extent possible, use universal design principles in developing and administering any assessments under this section.

Notes, amendments, and revision history

Amendments

[72 FR 17781, Apr. 9, 2007, as amended at 80 FR 50785, Aug. 21, 2015; 82 FR 29760, June 30, 2017]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[72 FR 17781, Apr. 9, 2007, as amended at 80 FR 50785, Aug. 21, 2015; 82 FR 29760, June 30, 2017]

§300.161. Reserved

34 C.F.R. § 300.161

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.162. Supplementation of State, local, and other Federal funds.

34 C.F.R. § 300.162

(a)

Expenditures. Funds paid to a State under this part must be expended in accordance with all the provisions of this part.

(b)

Prohibition against commingling.

(1)

Funds paid to a State under this part must not be commingled with State funds.

(2)

The requirement in paragraph (b)(1) of this section is satisfied by the use of a separate accounting system that includes an audit trail of the expenditure of funds paid to a State under this part. Separate bank accounts are not required. (See 34 CFR 76.702 (Fiscal control and fund accounting procedures).)

(c)

State-level nonsupplanting.

(1)

Except as provided in § 300.203, funds paid to a State under Part B of the Act must be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of the SEA or LEAs) expended for special education and related services provided to children with disabilities under Part B of the Act, and in no case to supplant those Federal, State, and local funds.

(2)

If the State provides clear and convincing evidence that all children with disabilities have available to them FAPE, the Secretary may waive, in whole or in part, the requirements of paragraph (c)(1) of this section if the Secretary concurs with the evidence provided by the State under § 300.164.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

§300.163. Maintenance of State financial support.

34 C.F.R. § 300.163

(a)

General. A State must not reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year.

(b)

Reduction of funds for failure to maintain support. The Secretary reduces the allocation of funds under section 611 of the Act for any fiscal year following the fiscal year in which the State fails to comply with the requirement of paragraph (a) of this section by the same amount by which the State fails to meet the requirement.

(c)

Waivers for exceptional or uncontrollable circumstances. The Secretary may waive the requirement of paragraph (a) of this section for a State, for one fiscal year at a time, if the Secretary determines that—

(1)

Granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or

(2)

The State meets the standard in § 300.164 for a waiver of the requirement to supplement, and not to supplant, funds received under Part B of the Act.

(d)

Subsequent years. If, for any fiscal year, a State fails to meet the requirement of paragraph (a) of this section, including any year for which the State is granted a waiver under paragraph (c) of this section, the financial support required of the State in future years under paragraph (a) of this section shall be the amount that would have been required in the absence of that failure and not the reduced level of the State's support.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.164. Waiver of requirement regarding supplementing and not supplanting with Part B funds.

34 C.F.R. § 300.164

(a)

Except as provided under §§ 300.202 through 300.205, funds paid to a State under Part B of the Act must be used to supplement and increase the level of Federal, State, and local funds (including funds that are not under the direct control of SEAs or LEAs) expended for special education and related services provided to children with disabilities under Part B of the Act and in no case to supplant those Federal, State, and local funds. A State may use funds it retains under § 300.704(a) and (b) without regard to the prohibition on supplanting other funds.

(b)

If a State provides clear and convincing evidence that all eligible children with disabilities throughout the State have FAPE available to them, the Secretary may waive for a period of one year in whole or in part the requirement under § 300.162 (regarding State-level nonsupplanting) if the Secretary concurs with the evidence provided by the State.

(c)

If a State wishes to request a waiver under this section, it must submit to the Secretary a written request that includes—

(1)

An assurance that FAPE is currently available, and will remain available throughout the period that a waiver would be in effect, to all eligible children with disabilities throughout the State, regardless of the public agency that is responsible for providing FAPE to them. The assurance must be signed by an official who has the authority to provide that assurance as it applies to all eligible children with disabilities in the State;

(2)

All evidence that the State wishes the Secretary to consider in determining whether all eligible children with disabilities have FAPE available to them, setting forth in detail—

(i)

The basis on which the State has concluded that FAPE is available to all eligible children in the State; and

(ii)

The procedures that the State will implement to ensure that FAPE remains available to all eligible children in the State, which must include—

(A)

The State's procedures under § 300.111 for ensuring that all eligible children are identified, located and evaluated;

(B)

The State's procedures for monitoring public agencies to ensure that they comply with all requirements of this part;

(C)

The State's complaint procedures under §§ 300.151 through 300.153; and

(D)

The State's hearing procedures under §§ 300.511 through 300.516 and §§ 300.530 through 300.536;

(3)

A summary of all State and Federal monitoring reports, and State complaint decisions (see §§ 300.151 through 300.153) and hearing decisions (see §§ 300.511 through 300.516 and §§ 300.530 through 300.536), issued within three years prior to the date of the State's request for a waiver under this section, that includes any finding that FAPE has not been available to one or more eligible children, and evidence that FAPE is now available to all children addressed in those reports or decisions; and

(4)

Evidence that the State, in determining that FAPE is currently available to all eligible children with disabilities in the State, has consulted with the State advisory panel under § 300.167.

(d)

If the Secretary determines that the request and supporting evidence submitted by the State makes a prima facie showing that FAPE is, and will remain, available to all eligible children with disabilities in the State, the Secretary, after notice to the public throughout the State, conducts a public hearing at which all interested persons and organizations may present evidence regarding the following issues:

(1)

Whether FAPE is currently available to all eligible children with disabilities in the State.

(2)

Whether the State will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary provides the requested waiver.

(e)

Following the hearing, the Secretary, based on all submitted evidence, will provide a waiver, in whole or in part, for a period of one year if the Secretary finds that the State has provided clear and convincing evidence that FAPE is currently available to all eligible children with disabilities in the State, and the State will be able to ensure that FAPE remains available to all eligible children with disabilities in the State if the Secretary provides the requested waiver.

(f)

A State may receive a waiver of the requirement of section 612(a)(18)(A) of the Act and § 300.164 if it satisfies the requirements of paragraphs (b) through (e) of this section.

(g)

The Secretary may grant subsequent waivers for a period of one year each, if the Secretary determines that the State has provided clear and convincing evidence that all eligible children with disabilities throughout the State have, and will continue to have throughout the one-year period of the waiver, FAPE available to them.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.165. Public participation.

34 C.F.R. § 300.165

(a)

Prior to the adoption of any policies and procedures needed to comply with Part B of the Act (including any amendments to those policies and procedures), the State must ensure that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities.

(b)

Before submitting a State plan under this part, a State must comply with the public participation requirements in paragraph (a) of this section and those in 20 U.S.C. 1232d(b)(7).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.166. Rule of construction.

34 C.F.R. § 300.166

In complying with §§ 300.162 and 300.163, a State may not use funds paid to it under this part to satisfy State-law mandated funding obligations to LEAs, including funding based on student attendance or enrollment, or inflation.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.167. State advisory panel.

34 C.F.R. § 300.167

The State must establish and maintain an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.168. Membership.

34 C.F.R. § 300.168

(a)

General. The advisory panel must consist of members appointed by the Governor, or any other official authorized under State law to make such appointments, be representative of the State population and be composed of individuals involved in, or concerned with the education of children with disabilities, including—

(1)

Parents of children with disabilities (ages birth through 26);

(2)

Individuals with disabilities;

(3)

Teachers;

(4)

Representatives of institutions of higher education that prepare special education and related services personnel;

(5)

State and local education officials, including officials who carry out activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, (42 U.S.C. 11431 et seq.);

(6)

Administrators of programs for children with disabilities;

(7)

Representatives of other State agencies involved in the financing or delivery of related services to children with disabilities;

(8)

Representatives of private schools and public charter schools;

(9)

Not less than one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities;

(10)

A representative from the State child welfare agency responsible for foster care; and

(11)

Representatives from the State juvenile and adult corrections agencies.

(b)

Special rule. A majority of the members of the panel must be individuals with disabilities or parents of children with disabilities (ages birth through 26).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.169. Duties.

34 C.F.R. § 300.169

The advisory panel must—

(a)

Advise the SEA of unmet needs within the State in the education of children with disabilities;

(b)

Comment publicly on any rules or regulations proposed by the State regarding the education of children with disabilities;

(c)

Advise the SEA in developing evaluations and reporting on data to the Secretary under section 618 of the Act;

(d)

Advise the SEA in developing corrective action plans to address findings identified in Federal monitoring reports under Part B of the Act; and

(e)

Advise the SEA in developing and implementing policies relating to the coordination of services for children with disabilities.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.170. Suspension and expulsion rates.

34 C.F.R. § 300.170

(a)

General. The SEA must examine data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities—

(1)

Among LEAs in the State; or

(2)

Compared to the rates for nondisabled children within those agencies.

(b)

Review and revision of policies. If the discrepancies described in paragraph (a) of this section are occurring, the SEA must review and, if appropriate, revise (or require the affected State agency or LEA to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards, to ensure that these policies, procedures, and practices comply with the Act.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.171. Annual description of use of Part B funds.

34 C.F.R. § 300.171

(a)

In order to receive a grant in any fiscal year a State must annually describe—

(1)

How amounts retained for State administration and State-level activities under § 300.704 will be used to meet the requirements of this part; and

(2)

How those amounts will be allocated among the activities described in § 300.704 to meet State priorities based on input from LEAs.

(b)

If a State's plans for use of its funds under § 300.704 for the forthcoming year do not change from the prior year, the State may submit a letter to that effect to meet the requirement in paragraph (a) of this section.

(c)

The provisions of this section do not apply to the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the freely associated States.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.172. Access to instructional materials.

34 C.F.R. § 300.172

(a)

General. The State must—

(1)

Adopt the National Instructional Materials Accessibility Standard (NIMAS), published as appendix C to part 300, for the purposes of providing instructional materials to blind persons or other persons with print disabilities, in a timely manner after publication of the NIMAS in the Federal Register on July 19, 2006 (71 FR 41084); and

(2)

Establish a State definition of “timely manner” for purposes of paragraphs (b)(2) and (b)(3) of this section if the State is not coordinating with the National Instructional Materials Access Center (NIMAC) or (b)(3) and (c)(2) of this section if the State is coordinating with the NIMAC.

(b)

Rights and responsibilities of SEA.

(1)

Nothing in this section shall be construed to require any SEA to coordinate with the NIMAC.

(2)

If an SEA chooses not to coordinate with the NIMAC, the SEA must provide an assurance to the Secretary that it will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.

(3)

Nothing in this section relieves an SEA of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, but are not included under the definition of blind or other persons with print disabilities in § 300.172(e)(1)(i) or who need materials that cannot be produced from NIMAS files, receive those instructional materials in a timely manner.

(4)

In order to meet its responsibility under paragraphs (b)(2), (b)(3), and (c) of this section to ensure that children with disabilities who need instructional materials in accessible formats are provided those materials in a timely manner, the SEA must ensure that all public agencies take all reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials at the same time as other children receive instructional materials.

(c)

Preparation and delivery of files. If an SEA chooses to coordinate with the NIMAC, as of December 3, 2006, the SEA must—

(1)

As part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, enter into a written contract with the publisher of the print instructional materials to—

(i)

Require the publisher to prepare and, on or before delivery of the print instructional materials, provide to NIMAC electronic files containing the contents of the print instructional materials using the NIMAS; or

(ii)

Purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.

(2)

Provide instructional materials to blind persons or other persons with print disabilities in a timely manner.

(d)

Assistive technology. In carrying out this section, the SEA, to the maximum extent possible, must work collaboratively with the State agency responsible for assistive technology programs.

(e)

Definitions.

(1)

In this section and § 300.210—

(i)

Blind persons or other persons with print disabilities means children served under this part who may qualify to receive books and other publications produced in specialized formats in accordance with the Act entitled “An Act to provide books for adult blind,” approved March 3, 1931, 2 U.S.C. 135a;

(ii)

National Instructional Materials Access Center— or NIMAC means the center established pursuant to section 674(e) of the Act;

(iii)

National Instructional Materials Accessibility Standard— or NIMAS has the meaning given the term in section 674(e)(3)(B) of the Act;

(iv)

Specialized formats— has the meaning given the term in section 674(e)(3)(D) of the Act.

(2)

The definitions in paragraph (e)(1) of this section apply to each State and LEA, whether or not the State or LEA chooses to coordinate with the NIMAC.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]

§300.173. Overidentification and disproportionality.

34 C.F.R. § 300.173

The State must have in effect, consistent with the purposes of this part and with section 618(d) of the Act, policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment described in § 300.8.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.174. Prohibition on mandatory medication.

34 C.F.R. § 300.174

(a)

General. The SEA must prohibit State and LEA personnel from requiring parents to obtain a prescription for substances identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition of attending school, receiving an evaluation under §§ 300.300 through 300.311, or receiving services under this part.

(b)

Rule of construction. Nothing in paragraph (a) of this section shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under § 300.111 (related to child find).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.175. SEA as provider of FAPE or direct services.

34 C.F.R. § 300.175

If the SEA provides FAPE to children with disabilities, or provides direct services to these children, the agency—

(a)

Must comply with any additional requirements of §§ 300.201 and 300.202 and §§ 300.206 through 300.226 as if the agency were an LEA; and

(b)

May use amounts that are otherwise available to the agency under Part B of the Act to serve those children without regard to § 300.202(b) (relating to excess costs).

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.176. Exception for prior State plans.

34 C.F.R. § 300.176

(a)

General. If a State has on file with the Secretary policies and procedures approved by the Secretary that demonstrate that the State meets any requirement of § 300.100, including any policies and procedures filed under Part B of the Act as in effect before, December 3, 2004, the Secretary considers the State to have met the requirement for purposes of receiving a grant under Part B of the Act.

(b)

Modifications made by a State.

(1)

Subject to paragraph (b)(2) of this section, policies and procedures submitted by a State in accordance with this subpart remain in effect until the State submits to the Secretary the modifications that the State determines necessary.

(2)

The provisions of this subpart apply to a modification to an application to the same extent and in the same manner that they apply to the original plan.

(c)

Modifications required by the Secretary. The Secretary may require a State to modify its policies and procedures, but only to the extent necessary to ensure the State's compliance with this part, if—

(1)

After December 3, 2004, the provisions of the Act or the regulations in this part are amended;

(2)

There is a new interpretation of this Act by a Federal court or a State's highest court; or

(3)

There is an official finding of noncompliance with Federal law or regulations.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.