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Federal register 2006 Federal register 2006 Document Transcript

  • Monday, August 14, 2006 Part II Department of Education 34 CFR Parts 300 and 301 Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities; Final Rulesroberts on PROD1PC70 with RULES VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM14AUR2.SGM 14AUR2
  • 46540 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations DEPARTMENT OF EDUCATION Special Education Personnel (2) A new § 300.18(e), regarding Development to Improve Services and separate ‘‘high objective uniform State 34 CFR Parts 300 and 301 Results for Children with Disabilities. In standards of evaluation’’ (HOUSSE), has RIN 1820–AB57 the preamble to the NPRM, the been added to provide that a State may Secretary discussed, on pages 35783 develop a separate HOUSSE for special Assistance to States for the Education through 35819, the changes proposed to education teachers, provided that any of Children With Disabilities and the regulations for these programs; adaptations of the State’s HOUSSE Preschool Grants for Children With specifically, the amendments to 34 CFR would not establish a lower standard for Disabilities part 300, the removal of 34 CFR part 301 the content knowledge requirements for and relocation of those provisions to special education teachers and meets all AGENCY: Office of Special Education and subpart H of 34 CFR part 300, and the the requirements for a HOUSSE for Rehabilitative Services, Department of amendments to 34 CFR part 304. regular education teachers. This Education. Final regulations for 34 CFR Part provision also clarifies that a State may ACTION: Final regulations. 304—Special Education-Personnel develop a separate HOUSSE for special Development to Improve Services and education teachers, which may include SUMMARY: The Secretary issues final Results for Children with Disabilities single HOUSSE evaluations that cover regulations governing the Assistance to were published in the Federal Register multiple subjects. States for Education of Children with (71 FR 32396) on June 5, 2006, and (3) Section 300.18(g) (proposed Disabilities Program and the Preschool became effective July 5, 2006. § 300.18(f)) (‘‘Applicability of definition Grants for Children with Disabilities to ESEA requirements; and clarification Program. These regulations are needed Major Changes in the Regulations of new special education teacher’’) has to implement changes made to the The following is a summary of the been revised as follows: (1) The heading Individuals with Disabilities Education major substantive changes in these final has been revised, and (2) the language Act, as amended by the Individuals with regulations from the regulations changed to clarify when a special Disabilities Education Improvement Act proposed in the NPRM (the rationale for education teacher is considered ‘‘new’’ of 2004 (Act or IDEA). each of these changes is discussed in the for some purposes. DATES: These regulations take effect on Analysis of Comments and Changes (4) Section 300.18(h) (proposed October 13, 2006. section of this preamble): § 300.18(g)) has been modified to clarify FOR FURTHER INFORMATION CONTACT: Subpart A—General that the highly qualified special Alexa Posny, U.S. Department of education teacher requirements also do Definitions not apply to private school teachers Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC • The definition of child with a hired or contracted by LEAs to provide 20202–2641. Telephone: (202) 245– disability in § 300.8 has been revised as equitable services to parentally-placed 7459, ext. 3. follows: private school children with disabilities If you use a telecommunications (1) Section 300.8(b) (Children aged under § 300.138. three through nine experiencing • The definition of Indian and Indian device for the deaf (TDD), you may call developmental delays) has been tribe in § 300.21 has been changed to the Federal Relay System (FRS) at 1– changed to clarify that the use of the clarify that nothing in the definition is 800–877–8339. Individuals with disabilities may term ‘‘developmental delay’’ is subject intended to indicate that the Secretary obtain this document in an alternate to the conditions described in of the Interior is required to provide format (e.g., Braille, large print, § 300.111(b). services or funding to a State Indian audiotape, or computer diskette) on (2) The definition of other health tribe that is not listed in the Federal request to the contact person listed impairment in § 300.8(c)(9)(i) has been Register list of Indian entities under FOR FURTHER INFORMATION changed to add ‘‘Tourette Syndrome’’ to recognized as eligible to receive services CONTACT. the list of chronic or acute health from the United States, published problems. pursuant to Section 104 of the Federally SUPPLEMENTARY INFORMATION: These • The definition of excess costs in Recognized Indian Tribe List Act of regulations implement changes in the § 300.16 has been revised to clarify that 1994, 25 U.S.C. 479a–1. regulations governing the Assistance to the computation of excess costs may not • The definition of parent in § 300.30 States for Education of Children with include capital outlay and debt service. has been revised to substitute Disabilities Program and the Preschool In addition, a new ‘‘Appendix A to Part ‘‘biological’’ for ‘‘natural’’ each time it Grants for Children with Disabilities 300—Excess Cost Calculation’’ has been appears in the definition, and to add Program necessitated by the added to provide a description (and an language clarifying that to be considered reauthorization of the IDEA. With the example) of how to calculate excess a parent under this definition a issuance of these final regulations, part costs under the Act and these ‘‘guardian’’ must be a person generally 301 has been removed and the regulations. authorized to act as the child’s parent, regulations implementing the Preschool • The definition of highly qualified or authorized to make educational Grants for Children with Disabilities special education teacher in § 300.18 decisions for the child. Program are included under subpart H has been revised, as follows: • The definition of related services in of these final regulations. (1) Section 300.18(b), regarding § 300.34 has been revised as follows: On June 21, 2005, the Secretary requirements for highly qualified (1) Section 300.34(a) (General) has published a notice of proposed special education teachers in general, been modified to (A) add the statutory rulemaking in the Federal Register (70 has been modified to clarify that, when term ‘‘early identification and FR 35782) (NPRM) to amend the used with respect to any special assessment of disabilities in children,’’sroberts on PROD1PC70 with RULES regulations governing the Assistance to education teacher teaching in a charter which was inadvertently omitted from States for Education of Children with school, highly qualified means that the the NPRM, (B) combine ‘‘school health Disabilities Program, the Preschool teacher meets the certification or services’’ and ‘‘school nurse services,’’ Grants for Children with Disabilities licensing requirements, if any, set forth and (C) remove the clause relating to a Program, and Service Obligations under in the State’s public charter school law. free appropriate public education under VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46541 ‘‘school nurse services’’ because it With the addition of the new children without disabilities in the same duplicates the clause in § 300.34(c)(13). definition in § 300.35, the definitions in grades. (2) Section 300.34(b) has been subpart A, beginning with the definition • A new § 300.113, regarding routine changed to (A) expand the title to read of secondary school, have been checking of hearing aids and external ‘‘Exception; services that apply to renumbered. components of surgically implanted children with surgically implanted • The definition of special education medical devices, has been added, as devices, including cochlear implants,’’ in § 300.39 (proposed § 300.38) has been follows: and (B) clarify, in new paragraph (b)(1), revised to remove the definition of (1) Paragraph (a) of § 300.113 requires that related services do not include a vocational and technical education that each public agency to ensure that medical device that is surgically was included in proposed hearing aids worn in school by children implanted, the optimization of that § 300.38(b)(6). with hearing impairments, including device’s functioning (e.g., mapping), • The definition of supplementary deafness, are functioning properly. maintenance of that device, or the (2) A new § 300.113(b)(1) requires aids and services in § 300.42 (proposed replacement of that device. each public agency to ensure that the § 300.41) has been modified to specify (3) A new § 300.34(b)(2) has been external components of surgically that aids, services, and other supports added to make clear that nothing in implanted medical devices are are also provided to enable children paragraph (b)(1) of § 300.34 (A) limits functioning properly. However, new with disabilities to participate in the right of a child with a surgically § 300.113(b)(2) has been added to make implanted device (e.g., a cochlear extracurricular and nonacademic it clear that, for a child with a surgically implant) to receive related services, as settings. implanted medical device who is listed in § 300.34(a), that are determined Subpart B—State Eligibility receiving special education and related by the IEP Team to be necessary for the services, a public agency is not child to receive FAPE; (B) limits the FAPE Requirements responsible for the post-surgical responsibility of a public agency to • Section 300.101(c) has been revised maintenance, programming, or appropriately monitor and maintain to clarify that a free appropriate public replacement of the medical device that medical devices that are needed to education (FAPE) must be available to has been surgically implanted (or of an maintain the health and safety of the any individual child with a disability external component of the surgically child, including breathing, nutrition, or who needs special education and implanted medical device). operation of other bodily functions, related services, even though the child while the child is transported to and Least Restrictive Environment has not failed or been retained in a from school or is at school; or (C) course, and is advancing from grade to • Section 300.116(b)(3) and (c) prevents the routine checking of an grade. regarding placements, has been revised external component of a surgically- • Section 300.102(a)(3), regarding to remove the qualification ‘‘unless the implanted device to make sure it is exceptions to FAPE, has been changed parent agrees otherwise’’ from the functioning properly, as required in to clarify that a regular high school requirements that (1) the child’s § 300.113(b). diploma does not include an alternative placement be as close as possible to the (4) The definition of interpreting degree that is not fully aligned with the child’s home, and (2) the child is services in § 300.34(c)(4) has been State’s academic standards, such as a educated in the school he or she would changed to clarify that the term includes certificate or a general educational attend if not disabled. (A) transcription services, such as development credential (GED). • Section 300.117 (Nonacademic communication access real-time settings) has been changed to clarify that • Section 300.105, regarding assistive translation (CART), C-Print, and each public agency must ensure that technology and proper functioning of TypeWell for children who are deaf or each child with a disability has the hearing aids, has been re-titled hard of hearing, and (B) special supplementary aids and services ‘‘Assistive technology,’’ and proposed interpreting services for children who determined by the child’s paragraph (b), regarding the proper are deaf-blind. individualized education program (IEP) (5) The definition of orientation and functioning of hearing aids, has been Team to be appropriate and necessary mobility services in § 300.34(c)(7) has moved to new § 300.113(a). for the child to participate with been changed to remove the term ‘‘travel • Section 300.107(a), regarding nondisabled children in the training instruction.’’ The term is under nonacademic services, has been revised extracurricular services and activities to the definition of special education, and to specify the steps each public agency the maximum extent appropriate to the is defined in § 300.39(b)(4). must take, including the provision of needs of that child. (6) The definition of school nurse supplementary aids and services services in 300.34(c)(13) has been determined appropriate and necessary Children With Disabilities Enrolled by expanded and re-named school health by the child’s IEP Team, to provide Their Parents in Private Schools services and school nurse services. The nonacademic and extracurricular • Section 300.130 (definition of expanded definition clarifies that services and activities in the manner parentally-placed private school ‘‘school nurse services’’ are provided by necessary to afford children with children with disabilities) has been a qualified school nurse, and ‘‘school disabilities an equal opportunity for revised to clarify that the term means health services’’ may be provided by a participation in those services and children with disabilities enrolled by qualified school nurse or other qualified activities. their parents in private, including person. • Proposed § 300.108(a), regarding religious, schools or facilities, that meet • A definition of scientifically based physical education services, has been the definition of elementary school in research has been added in new revised to specify that physical § 300.13 or secondary school insroberts on PROD1PC70 with RULES § 300.35 that incorporates by reference education must be made available to all § 300.36. the definition of that term from the children with disabilities receiving • A new § 300.131(f), regarding child Elementary and Secondary Education FAPE, unless the public agency enrolls find for out-of-State parentally-placed Act of 1965, as amended, 20 U.S.C. 6301 children without disabilities and does private school children with disabilities, et seq. (ESEA). not provide physical education to has been added to clarify that each LEA VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46542 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations in which private (including religious) find requirements in § 300.131, due process hearings under § 300.507 elementary schools and secondary including the requirements in and §§ 300.530 through 300.532, has schools are located must include §§ 300.301 through 300.311. been revised to clarify that if a written parentally-placed private school (2) A new paragraph (b)(2) has been complaint is received that is also the children who reside in a State other added to provide that any due process subject of a due process hearing under than the State in which the private complaint regarding the child find §§ 300.507 or 300.530 through 300.532, schools that they attend are located. requirements (as described in or contains multiple issues of which one • Section 300.133, regarding § 300.140(b)(1)) must be filed with the or more are part of a due process expenditures for parentally-placed LEA in which the private school is hearing, the State must set aside any private school children with disabilities, located and a copy of the complaint part of the complaint that is being has been revised, as follows: must be forwarded to the SEA. addressed in the due process hearing (1) A new § 300.133(a)(2)(ii), has been (3) A new § 300.140(c), regarding until the conclusion of the hearing. added to clarify that children aged three State complaints by private school However, any issue in the complaint through five are considered to be officials, has been added to clarify that that is not part of the due process parentally-placed private school (A) any complaint that an SEA or LEA hearing must be resolved using the time children with disabilities enrolled by has failed to meet the requirements in limit and procedures described their parents in private, including §§ 300.132 through 300.135 and 300.137 elsewhere in the State complaint religious, elementary schools, if they are through 300.144 must be filed in procedures. A new paragraph (c)(3) also enrolled in a private school that meets accordance with the procedures has been added to require SEAs to the definition of elementary school in described in §§ 300.151 through resolve complaints alleging a public § 300.13. 300.153, and (B) a complaint filed by a agency’s failure to implement a due (2) A new § 300.133(a)(3) has been private school official under process hearing. This is the same added to specify that, if an LEA has not § 300.136(a) must be filed with the SEA requirement in current § 300.661(c)(3). expended for equitable services for in accordance with the procedures in • Section 300.153(c), regarding the parentally-placed private school § 300.136(b). one year time limit from the date the children with disabilities all of the alleged violation occurred and the date applicable funds described in Children With Disabilities Enrolled by Their Parents in Private Schools When the complaint is received in accordance § 300.133(a)(1) and (a)(2) by the end of with § 300.151, has been revised by the fiscal year for which Congress FAPE Is at Issue removing the exception clause related to appropriated the funds, the LEA must Section 300.148 Placement of Children complaints covered under obligate the remaining funds for special by Parents if FAPE Is at Issue § 300.507(a)(2). education and related services • A new § 300.148(b), regarding (including direct services) to parentally- Methods of Ensuring Services disagreements about FAPE, has been placed private school children with added (from current § 300.403(b)) to • Section 300.154(d), regarding disabilities during a carry-over period of clarify that disagreements between a children with disabilities who are one additional year. parent and a public agency regarding covered by public benefits or insurance, • Section 300.136, regarding the availability of a program appropriate has been revised to clarify that the compliance related to parentally-placed for a child with a disability, and the public agency must (1) obtain parental private school children with disabilities, question of financial reimbursement, are consent each time that access to the has been revised to remove the subject to the due process procedures in parent’s public benefits or insurance is requirement that private school officials §§ 300.504 through 300.520. sought, and (2) notify parents that must submit complaints to the SEA refusal to allow access to their public using the procedures in §§ 300.151 State Complaint Procedures benefits or insurance does not relieve through 300.153. • Section 300.152(a)(3)(ii) (proposed the public agency of its responsibility to • Section 300.138(a), regarding the paragraph (a)(3)(B)) has been revised to ensure that all required services are requirement that services to parentally- clarify that each SEA’s complaint provided at no cost to the parents. placed private school children with procedures must provide the public disabilities must be provided by Additional Eligibility Requirements agency with an opportunity to respond personnel meeting the same standards to a complaint filed under § 300.153, • Section 300.156(e), regarding as personnel providing services in the including, at a minimum, an personnel qualifications, has been public schools, has been modified to opportunity for a parent who has filed revised (1) to add ‘‘or a class of clarify that private elementary school a complaint and the public agency to students,’’ to clarify that a judicial and secondary school teachers who are voluntarily engage in mediation action on behalf of a class of students providing equitable services to consistent with § 300.506. may not be filed for failure of a parentally-placed private school • Section 300.152(b)(1)(ii), regarding particular SEA or LEA employee to be children with disabilities do not have to time extensions for filing a State highly qualified, and (2) to substitute meet the highly qualified special complaint, has been revised to clarify the word ‘‘employee’’ for ‘‘staff person,’’ education teacher requirements in that it would be permissible to extend to be more precise in the rule of § 300.18. the 60-day timeline if the parent (or construction in new § 300.18(f) • Section 300.140, regarding due individual or organization if mediation (proposed § 300.18(e)). process complaints and State or other alternative means of dispute • Section 300.160 (participation in complaints, has been revised to make resolution is available to the individual assessments) has been removed, and the the following changes: or organization under State procedures) section has been designated as (1) Section 300.140(b)(1) (proposed and the public agency agree to engage in ‘‘Reserved.’’ Participation insroberts on PROD1PC70 with RULES § 300.140(a)(2)), regarding child find mediation or to engage in other assessments is the subject of a new complaints, has been changed to clarify alternative means of dispute resolution, notice of proposed rulemaking issued that the procedures in §§ 300.504 if available in the State. on December 15, 2005 (70 FR 74624) to through 300.519 apply to complaints • Section 300.152(c), regarding amend the regulations governing that an LEA has failed to meet the child complaints filed under § 300.152 and programs under Title I of the ESEA and VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46543 Part B of the IDEA regarding additional consent from the parent for an initial proposed paragraph (a)(2) of § 300.307 flexibility for States to measure the evaluation. has been redesignated as paragraph achievement of children with (2) Section 300.300(a)(3), regarding a (a)(1). disabilities based on modified parent’s failure to provide consent for (2) Section 300.307(a)(2) (proposed achievement standards. initial evaluation, has been changed to paragraph (a)(3)) has been changed to clarify, in a new paragraph (a)(3)(ii), that clarify that the criteria adopted by the Other Provisions Required for State the public agency does not violate its State must permit the use of a process Eligibility obligation under § 300.111 and based on the child’s response to • Section 300.172, regarding access to §§ 300.301 through 300.311 if it declines scientific, research-based intervention. instructional materials, has been to pursue the evaluation. • Section 300.308 (Group members) revised: (1) To make clear that States (3) Section 300.300(b), regarding has been changed to require the must adopt the National Instructional parental consent for services, has been eligibility group for children suspected Materials Accessibility Standard modified by a new paragraph (b)(2) that of having SLD to include the child’s (NIMAS), published as Appendix C to requires a public agency to make parents and a team of qualified these final regulations; (2) to establish a reasonable efforts to obtain informed professionals, which must include the definition of ‘‘timely manner,’’ for consent from the parent for the initial child’s regular teacher (or if the child purposes of § 300.172(b)(2) and (b)(3) if provision of special education and does not have a regular teacher, a the State is not coordinating with the related services. regular classroom teacher qualified to National Instructional Materials Access (4) Section 300.300(c)(1), regarding teach a child of his or her age) or for a Center (NIMAC), or § 300.172(b)(3) and parental consent for reevaluations, has child of less than school age, an (c)(2) if the State is coordinating with been modified to clarify that if a parent individual qualified by the SEA to teach the NIMAC; (3) to add a new refuses to consent to a reevaluation, the a child of his or her age; and at least one § 300.172(b)(4) to require SEAs to public agency may, but is not required person qualified to conduct individual ensure that all public agencies take all to, pursue the reevaluation by using the diagnostic examinations of children, reasonable steps to provide instructional consent override procedures in such as a school psychologist, speech- materials in accessible formats to § 300.300(a)(3), and the public agency language pathologist, or remedial children with disabilities who need does not violate its obligation under reading teacher. These are the same those instructional materials at the same § 300.111 and §§ 300.301 through requirements in current § 300.540. time as other children receive 300.311 if it declines to pursue the • Section 300.309 (Determining the instructional materials; and (4) to add a evaluation or reevaluation. existence of a specific learning new § 300.172(e)(2) to clarify, that all (5) A new § 300.300(d)(4) has been disability) has been revised, as follows: added to provide that if a parent of a (1) Paragraph (a) of § 300.309 has been definitions in § 300.172(e)(1) apply to child who is home schooled or placed changed (A) to clarify that the group each State and LEA, whether or not the in a private school by the parent at the described in 300.306 may determine State or LEA chooses to coordinate with parent’s expense, does not provide that a child has a specific learning the NIMAC. consent for an initial evaluation or a disability if the child does not achieve • A new § 300.177 has been added to reevaluation, or the parent fails to adequately for the child’s age or to meet include a provision regarding ‘‘States’ respond to a request to provide consent, State-approved grade-level standards in sovereign immunity.’’ That provision, the public agency (A) may not use the one or more of eight areas (e.g., oral which has been added to incorporate consent override procedures (described expression, basic reading skill, etc.), the language in section 604 of the Act, elsewhere in § 300.300), and (B) is not when provided with learning makes clear that a State that accepts required to consider the child eligible experiences and instruction appropriate funds under Part B of the Act waives its for services under the requirements for the child’s age or State-approved immunity under the 11th amendment of relating to parentally-placed private grade-level standards; and (B) to add the Constitution of the United States school children with disabilities ‘‘limited English proficiency’’ to the from suit in Federal court for a violation (§§ 300.132 through 300.144). other five conditions that could account of Part B of the Act. (6) A new § 300.300(d)(5) has been for the child’s learning problems, and Subpart D—Evaluations, Eligibility added to clarify that in order for a that the group considers in determining Determinations, Individualized public agency to meet the reasonable whether the child has an SLD. Education Programs, and Educational efforts requirement to obtain informed (2) Section 300.309(b) has been Placements parental consent for an initial changed to clarify (A) that, in order to evaluation, initial services, or a ensure that underachievement in a child Parental Consent suspected of having an SLD is not due reevaluation, a public agency must • Section 300.300, regarding parental document its attempts to obtain parental to lack of appropriate instruction in consent, has been revised, as follows: consent using the procedures in reading or math, the group must (1) Paragraph (a) of § 300.300, § 300.322(d). consider, as part of the evaluation regarding consent for initial evaluation, described in §§ 300.304 through has been changed to provide that the Additional Procedures for Evaluating 300.306, data that demonstrate that public agency proposing to conduct an Children With Specific Learning prior to, or as a part of, the referral initial evaluation to determine if a child Disabilities (SLD) process, the child was provided qualifies as a child with a disability • Section 300.307 (Specific learning appropriate instruction in regular must, after providing notice consistent disabilities) has been revised, as education settings, delivered by with §§ 300.503 and 300.504, obtain follows: qualified personnel, and (B) to replace informed consent, consistent with (1) Proposed paragraph (a)(1) of (in paragraph (b)(1)) the term ‘‘highsroberts on PROD1PC70 with RULES § 300.9, from the parent of the child § 300.307, which allowed a State to quality research-based instruction’’ with before conducting the evaluation. A new prohibit the use of a severe discrepancy ‘‘appropriate instruction.’’ paragraph (a)(1)(iii) has been added to between intellectual ability and (3) Section 300.309(c) has been require a public agency to make achievement for determining if a child changed to provide that the public reasonable efforts to obtain the informed has an SLD, has been removed, and agency must promptly request parental VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46544 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations consent to evaluate a child suspected of disadvantage, or limited English the provision into three separate having an SLD who has not made proficiency on the child’s achievement paragraphs (§ 300.323(e), (f), and (g)) for adequate progress after an appropriate level. purposes of clarity and improved period of time when provided (4) A new § 300.311(a)(7) has been readability (e.g., transfers within the appropriate instruction, and whenever a added to provide that if the child has same State, transfers from another State, child is referred for an evaluation. participated in a process that assesses and transmittal of records); (2) adopt • Section 300.310, regarding the child’s response to scientific, ‘‘school year’’ in lieu of ‘‘academic Observation, has been revised, as research-based intervention, the year’’ as the term commonly used by follows: documentation must include the parents and public agencies; and (3) (1) Paragraph (a) of proposed instructional strategies used and the adopt other modifiers (e.g., ‘‘new’’ and § 300.310 has been revised (A) to student-centered data collected, and ‘‘previous’’) to distinguish between remove the phrase ‘‘trained in documentation that the child’s parents States and public agencies that are observation, and (B) to specify that the were notified about (A) the State’s involved in transfers by children with public agency must ensure that the policies regarding the amount and disabilities. child is observed in the child’s learning nature of student performance data that • Section 300.324(a)(4), regarding environment. would be collected and the general changes to an IEP after the annual IEP (2) A new § 300.310(b) has been education services that would be meeting for a school year, has been added to require the eligibility group to provided, (B) strategies for increasing restructured into two paragraphs, and a decide to (A) use information obtained the child’s rate of learning, and (C) the new paragraph (a)(4)(ii) has been added from an observation in routine parents’ right to request an evaluation. to require the public agency to ensure classroom instruction and monitoring of that, if changes are made to a child’s IEP the child’s performance that was done Individualized Education Programs without an IEP meeting, that the child’s before the child was referred for an • Section 300.320 (Definition of IEP) IEP Team is informed of the changes. evaluation, or (B) have at least one has been revised in paragraph (a)(5) to • Section 300.324(b), regarding the member of the group described in replace ‘‘regular education review and revision of IEPs, has been § 300.306(a)(1) conduct an observation environment’’ with ‘‘regular class,’’ in changed to include a new paragraph of the child’s academic performance in order to be consistent with the language (b)(2), to clarify that, in conducting a the regular classroom after the child has in the Act. review of a child’s IEP, the IEP Team been referred for an evaluation and • Section 300.321(e), regarding must consider the same special factors parental consent is obtained. attendance at IEP Team meetings, has it considered when developing the Paragraph (b) of proposed § 300.310 been revised to clarify that the excusal child’s IEP. has been redesignated as new of IEP Team members from attending an § 300.310(c). IEP Team meeting under certain Subpart E—Procedural Safeguards • Section 300.311 (Written report) has circumstances, refers to the IEP Team • Section 300.502, regarding been renamed ‘‘Specific documentation members in § 300.320(a)(2) through independent educational evaluations, for the eligibility determination,’’ and (a)(5). has been revised, as follows: has been revised, as follows: • Section 300.322, regarding parent (1) A new § 300.502(b)(5) has been (1) Section 300.311(a)(5), regarding participation, has been revised to: (1) added to make clear that a parent is whether the child does not achieve Include, in § 300.322(d), examples of the entitled to only one independent commensurate with the child’s age, has records a public agency must keep of its educational evaluation at public been modified and expanded to add attempts to involve the parents in IEP expense each time the public agency whether the child does not achieve meetings; (2) add a new § 300.322(e), conducts an evaluation with which the adequately for the child’s age or to meet which requires the public agency to take parent disagrees. State-approved grade-level standards whatever action is necessary to ensure (2) Section 300.502(c) has been consistent with § 300.309(a)(1), and (A) that the parent understands the changed to clarify that if a parent the child does not make sufficient proceedings of the IEP meeting, obtains an independent evaluation at progress to meet age or to meet State- including arranging for an interpreter public expense or shares with the public approved grade-level standards for parents with deafness or whose agency an evaluation obtained at private consistent with § 300.309(a)(2)(i), or (B) native language is other than English; expense, the public agency must the child exhibits a pattern of strengths and (3) redesignate paragraph (e) as consider the evaluation, if it meets and weaknesses in performance, paragraph (f) accordingly. agency criteria, in any decision made achievement, or both, relative to age, • Section 300.323(d) has been revised with respect to the provision of FAPE to State-approved grade level standards or to require public agencies to ensure that the child. intellectual development consistent each regular teacher, special education • Section 300.504 (Procedural with § 300.309(a)(2)(ii). teacher, related services provider, and safeguards notice) has been revised, as (2) Proposed § 300.311(a)(6), regarding any other service provider who is follows: whether there are strengths or responsible for the implementation of a (1) Paragraph (a)(2) of § 300.504 has weaknesses or both in performance or child’s IEP, is informed of his or her been changed to add that a copy of the achievement or both relative to specific responsibilities related to procedural safeguards notice must be intellectual development, has been implementing the child’s IEP and the given upon receipt of the first due removed. specific accommodations, process complaint under § 300.507 in a (3) A new § 300.311(a)(6) has been modifications, and supports that must school year, as well as upon receipt of added to clarify that the documentation be provided for the child in accordance the first State complaint under § 300.151 must include a statement of the with the child’s IEP. These are the same through 300.153.sroberts on PROD1PC70 with RULES determination of the group concerning requirements in current (2) A new § 300.504(a)(3) has been the effects of visual, hearing, or motor § 300.342(b)(3)(i) and (b)(3)(ii). added to provide that the notice must be disability, mental retardation, emotional • Section 300.323(e), regarding IEPs given to the parents of a child with a disturbance, cultural factors, for children who transfer public disability in accordance with the environmental or economic agencies, has been revised to: (1) Divide discipline procedures in § 300.530(h). VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46545 • Section 300.506(b), regarding the process complaint or fails to participate under § 300.300(b), then the public requirements for mediation, has been in the resolution meeting, the parent agency must provide those special revised by (1) removing the provision may seek the intervention of a hearing education and related services that are about the ‘‘confidentiality pledge,’’ in officer to begin the due process hearing not in dispute between the parent and proposed paragraph (b)(9), because it is timelines. the public agency. no longer required under the Act, and (5) A new § 300.510(c) (Adjustments • Section 300.520(b), regarding a (2) changing paragraph (b)(8), regarding to the 30-day resolution period) has special rule about the transfer of the prohibition against using been added that specifies exceptions to parental rights at the age of majority, has discussions that occur in the mediation the 30-day resolution period (e.g., (A) been revised to more clearly state that process, to clarify that ‘‘civil both parties agree in writing to waive a State must establish procedures for proceedings’’ includes any Federal court the resolution meeting; (B) after either appointing the parent of a child with a or State court of a State receiving the mediation or resolution meeting disability, or if the parent is not assistance under this part. starts but before the end of the 30-day available, another appropriate • Section 300.509, regarding model period, the parties agree in writing that individual, to represent the educational forms to assist parents and public no agreement is possible; or (C) if both interests of the child throughout the agencies in filing due process parties agree in writing to continue the child’s eligibility under Part B of the Act complaints and parents and other mediation at the end of the 30-day if, under State law, a child who has parties in filing State complaints, has resolution period, but later, the parent reached the age of majority, but has not been revised to add, with respect to due or public agency withdraws from the been determined to be incompetent, can process complaints, ‘‘public agencies,’’ mediation process). Subsequent be determined not to have the ability to and with respect to State complaints, paragraphs have been renumbered provide informed consent with respect ‘‘other parties,’’ as well as parents, and accordingly. to the child’s educational program. to clarify that (1) while each SEA must (6) Paragraph (d)(2) of § 300.510 develop model forms, the SEA or LEA (proposed paragraph(c)(2)), regarding Discipline Procedures may not require the use of the forms, the enforceability of a written settlement • Section 300.530(d)(1)(i), regarding and (2) parents, public agencies, and agreement in any State court of services, has been revised to be other parties may either use the competent jurisdiction or in a district consistent with section 615(k)(1)(D)(i) of appropriate model form, or another form court of the United States, has been the Act, by adding a reference to the or other document, so long as the form expanded to add the SEA, if the State FAPE requirements in § 300.101(a). or document meets, as appropriate, the has other mechanisms or procedures • Section 300.530(d)(4), regarding the requirements for filing a due process that permit parties to seek enforcement removal of a child with a disability from complaint or a State complaint. of resolution agreements, pursuant to a the child’s current placement for 10 • Section 300.510 (Resolution new § 300.537. school days in the same school year, has process) has been revised, as follows: • Section 300.513(a) (Decision of been revised to remove the reference to (1) Section 300.510(b)(1), regarding hearing officer) has been revised by (1) school personnel, in consultation with the resolution period, has been changed changing the paragraph title to read at least one of the child’s teachers, to state that a due process hearing ‘‘may ‘‘Decision of hearing officer on the determining the location in which occur’’ (in lieu of ‘‘must occur’’) by the provision of FAPE,’’ and (2) clarifying services will be provided. end of the resolution period, if the that a hearing officer’s determination of • Section 300.530(d)(5), regarding parties have not resolved the dispute whether a child received FAPE must be removals that constitute a change of that formed the basis for the due process based on substantive grounds. placement under § 300.536, has been complaint. • Section 300.515(a), regarding revised to remove the reference to the (2) A new § 300.510(b)(3) has been timelines and convenience of hearings IEP Team determining the location in added to provide that, except where the and reviews, has been revised to include which services will be provided. parties have jointly agreed to waive the a specific reference to the adjusted time • A new § 300.530(e)(3), has been resolution process or to use mediation periods described in § 300.510(c). added to provide that, if the LEA, the (notwithstanding § 300.510(b)(1) and • Section 300.516(b), regarding the parent, and members of the child’s IEP (2)), the failure of a parent filing a due 90-day time limitation from the date of Team determine that the child’s process complaint to participate in the the decision of the hearing to file a civil behavior was the direct result of the resolution meeting will delay the action, has been revised to provide that LEA’s failure to implement the child’s timelines for the resolution process and the 90-day period begins from the date IEP, the LEA must take immediate steps due process hearing until the meeting is of the decision of the hearing officer or to remedy those deficiencies. held. the decision of the State review official. • Section 300.530(h), regarding (3) A new § 300.510(b)(4) has been • Section 300.518 (Child’s status notification, has been changed to added to provide that if an LEA is during proceedings) has been revised by specify that, on the date on which a unable to obtain the participation of the adding a new paragraph (c), which decision is made to make a removal that parent in the resolution meeting after provides that if a complaint involves an constitutes a change in the placement of reasonable efforts have been made, and application for initial services under a child with a disability because of a documented using the procedures in this part from a child who is violation of a code of student conduct, § 300.322(d), the LEA may, at the transitioning from Part C of the Act to the LEA must notify the parents of that conclusion of the 30-day resolution Part B and is no longer eligible for Part decision, and provide the parents the period, request that a hearing officer C services because the child has turned procedural safeguards notice described dismiss the parent’s due process 3, the public agency is not required to in § 300.504. complaint. provide the Part C services that the • Section 300.532 (Appeal) has beensroberts on PROD1PC70 with RULES (4) A new paragraph (b)(5) of child had been receiving. If the child is revised, as follows: § 300.510 has been added to provide found eligible for special education and (1) Paragraph (a) of § 300.532, that, if the LEA fails to hold the related services under Part B and the regarding the conditions in which the resolution meeting within 15 days of parent consents to the initial provision parent of a child with a disability or an receiving notice of a parent’s due of special education and related services LEA may request a hearing, has been VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46546 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations modified to clarify that the hearing is Subpart F—Monitoring, Enforcement, Rights and Privacy Act (FERPA, 34 CFR requested by filing a complaint pursuant Confidentiality, and Program part 99). to §§ 300.507 and 300.508(a) and (b). Information (2) A new § 300.622(b)(1) has been (2) Section 300.532(b)(3) has been added to clarify that parental consent is Monitoring, Technical Assistance, and not required before personally changed to more definitively provide Enforcement identifiable information is released to that if the LEA believes that returning the child to his or her original • Section 300.600 (State monitoring officials of participating agencies for and enforcement) has been revised, as purposes of meeting a requirement of placement is substantially likely to follows: Part B of the Act or these regulations. result in injury to the child or others. (3) A new § 300.622(b)(2) has been (1) Section 300.600(a) has been (3) Section 300.532(c)(3), regarding an amended to require the State to enforce added to provide that parental consent expedited due process hearing, has been Part B of the Act in accordance with must be obtained before personally adjusted to provide that unless the § 300.604(a)(1) and (a)(3), (b)(2)(i) and identifiable information is released to parents and an LEA agree in writing to (b)(2)(v), and (c)(2). officials of participating agencies that waive a resolution meeting, or agree to (2) A new paragraph (d) has been provide or pay for transition services. use the mediation process described in added, which provides that the State (4) A new paragraph (b)(3) has been § 300.506, the resolution meeting must added to require that, with respect to must monitor the LEAs located in the occur within seven days of receiving parentally-placed private school State, using quantifiable indicators in notice of the due process complaint, and children with disabilities, parental each of the following priority areas, and the hearing may proceed within 15 days consent must be obtained before any such qualitative indicators as are of receipt of the due process complaint personally identifiable information is needed to adequately measure unless the matter has been resolved to released between officials in the LEA performance in those areas, including: satisfaction of both parties. where the private school is located and (A) Provision of FAPE in the least the LEA of the parent’s residence. (4) Proposed § 300.532(c)(4), regarding restrictive environment; (B) State (5) Proposed § 300.622(c), regarding the two-day timeframe for disclosing exercise of general supervision, the requirement to provide policies and information to the opposing party prior including child find, effective procedures for use in the event that a to an expedited due process hearing, has monitoring, the use of resolution parent refuses to consent, has been been removed. meetings, and a system of transition removed because it is covered elsewhere • Section 500.536(a)(2)(ii) (proposed services as defined in § 300.43 and in 20 in these regulations. § 300.536(b)(2)) has been revised to U.S.C. 1437(a)(9); and (C) disproportionate representation of racial Subpart G—Authorization, Allotment, remove the requirement that a child’s Use of Funds, and Authorization of and ethnic groups in special education behavior must have been a Appropriations and related services, to the extent the manifestation of the child’s disability representation is the result of Allotments, Grants, and Use of Funds before determining that a series of inappropriate identification. removals constitutes a change in • Section 300.701(a)(1)(ii)(A), placement under § 300.536. Paragraph • A new § 300.601(b)(2), regarding regarding the applicable requirements of (a)(2)(ii) has also been amended to State use of targets and reporting, has Part B of the Act that apply to freely reference the child’s behavior in been added to specify that, if permitted associated States, has been revised by ‘‘previous’’ incidents that resulted in the by the Secretary, if a State collects data removing the five listed requirements series of removals. on an indicator through State because those requirements did not monitoring or sampling, the State must • A new § 300.536(b) has been added include all requirements that apply to collect data on the indicator at least to clarify that the public agency (subject freely associated States. This change once during the period of the State to review through the due process and clarifies that freely associated States performance plan. judicial proceedings) makes the must meet the applicable requirements • A new § 300.608(b), regarding State that apply to States under Part B of the determination, on a case-by-case basis, enforcement, has been added to specify whether a pattern of removals Act. that States are not restricted from • Section 300.704(c)(3)(i), regarding constitutes a change in placement and utilizing any other authority available to that the determination is subject to the requirement to develop, annually them to monitor and enforce the review, and revise (if necessary) a State review through due process and judicial requirements of Part B of the Act. determinations. plan for the high cost fund, has been Confidentiality of Information revised to add a new paragraph (F) that • A new § 300.537 (State enforcement requires that if the State elects to reserve mechanisms) has been added to clarify • Section 300.622 (Consent) has been funds for supporting innovative and that notwithstanding § 300.506(b)(7) and restructured and revised to more effective ways of cost sharing, it must § 300.510(c)(2), which provide for accurately reflect the Department’s describe in its State plan how these judicial enforcement of a written policy regarding when parental consent funds will be used. agreement reached as a result of a is required for disclosures of personally • Section 300.706 (Allocation for mediation or resolution meeting, identifiable information, as follows: State in which by-pass is implemented nothing in this part would prevent the (1) Paragraph (a) of § 300.622 has been for parentally-placed private school SEA from using other mechanisms to changed to provide that parental children with disabilities) has been seek enforcement of that agreement, consent must be obtained before removed because it is no longer provided that use of those mechanisms personally identifiable information is applicable. The section has been is not mandatory and does not delay or disclosed to parties other than officials redesignated as ‘‘Reserved.’’sroberts on PROD1PC70 with RULES deny a party the right to seek of participating agencies, unless the enforcement of the written agreement in information is contained in education Secretary of the Interior a State court of competent jurisdiction records, and the disclosure is authorized • Section 300.707 (Use of amounts by or in a district court of the United without parental consent under the Secretary of the Interior) has been States. regulations for the Family Educational changed, as follows: VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46547 (1) The definition of Tribal governing or other matters that are not directly Comment: One commenter requested body of a school has been replaced with relevant to these regulations, such as that the regulations clarify that an the definition of tribal governing body requests for information about assistive technology device is not from 25 U.S.C. 2021(19). innovative instructional methods or synonymous with an augmentative (2) Section 300.707(c), regarding an matters that are within the purview of communication device. A few additional requirement under ‘‘Use of State and local decision-makers. commenters recommended including amounts by Secretary of the Interior,’’ recordings for the blind and dyslexic Subpart A—General has been revised to clarify that, with playback devices in the definition of respect to all other children aged 3 to Definitions Used in This Part assistive technology devices. Some 21, inclusive, on reservations, the SEA commenters recommended including Applicability of This Part to State and of the State in which the reservation is language in the regulations clarifying Local Agencies (§ 300.2) located must ensure that all the that medical devices used for breathing, requirements of Part B of the Act are Comment: None. nutrition, and other bodily functions are met. Discussion: Section § 300.2(c)(2) assistive technology devices. • Section 300.713 (Plan for contains an incorrect reference to Discussion: The definition of assistive coordination of services) has been § 300.148(b). The correct reference technology device does not list specific revised to require (1) in § 300.713(a), the should be to § 300.148. devices, nor would it be practical or Secretary of the Interior to develop and Changes: We have removed the possible to include an exhaustive list of implement a plan for the coordination reference to § 300.148(b) and replaced it assistive technology devices. Whether of services for all Indian children with with a reference to § 300.148. an augmentative communication device, disabilities residing on reservations Assistive Technology Device (§ 300.5) playback devices, or other devices could served by elementary schools and be considered an assistive technology Comment: Some commenters opposed device for a child depends on whether secondary schools for Indian children the exclusion of surgically implanted operated or funded by the Secretary of the device is used to increase, maintain, medical devices in the definition of or improve the functional capabilities of the Interior, and (2) in § 300.713(b), the assistive technology device. Another plan to provide for the coordination of a child with a disability, and whether commenter recommended limiting the the child’s individualized education services benefiting these children from definition of assistive technology device whatever source covered by the plan, program (IEP) Team determines that the to a device that is needed to achieve child needs the device in order to including SEAs, and State, local, and educational outcomes, rather than tribal juvenile and adult correctional receive a free appropriate public requiring local educational agencies education (FAPE). However, medical facilities. (LEAs) to pay for any assistive devices that are surgically implanted, Analysis of Comments and Changes technology device that increases, including those used for breathing, maintains, or improves any functional nutrition, and other bodily functions, Introduction need of the child. are excluded from the definition of an In response to the invitation in the Discussion: The definition of assistive assistive technology device in section NPRM, more than 5,500 parties technology device in § 300.5 602(1)(B) of the Act. The exclusion submitted comments on the proposed incorporates the definition in section applicable to a medical device that is regulations. An analysis of the 602(1)(B) of the Act. We do not believe surgically implanted includes both the comments and of the changes in the the definition should be changed in the implanted component of the device, as regulations since publication of the manner suggested by the commenters well as its external components. NPRM immediately follows this because the changes are inconsistent Changes: None. introduction. with the statutory definition. The Comment: A few commenters asked The perspectives of parents, definition in the Act specifically refers whether the definition of assistive individuals with disabilities, teachers, to any item, piece of equipment, or technology device includes an internet- related services providers, State and product system that is used to increase, based instructional program, and what local officials, members of Congress, maintain, or improve the functional the relationship is between internet- and others were very important in capabilities of the child and specifically based instructional programs and helping us to identify where changes to excludes a medical device that is specially-designed instruction. the proposed regulations were surgically implanted or the replacement Discussion: An instructional program necessary, and in formulating many of of such device. Accordingly, we is not a device, and, therefore, would the changes. In light of the comments continue to believe it is appropriate to not meet the definition of an assistive received, a number of significant exclude surgically implanted medical technology device. Whether an internet- changes are reflected in these final devices from this definition. In response based instructional program is regulations. to the second comment, § 300.105(a) appropriate for a particular child is We discuss substantive issues under requires each public agency to ensure determined by the child’s IEP Team, the subpart and section to which they that assistive technology devices (or which would determine whether the pertain. References to subparts in this assistive technology services, or both) program is needed in order for the child analysis are to those contained in the are made available to a child with a to receive FAPE. final regulations. The analysis generally disability if required as part of the Changes: None. does not address— child’s special education, related Comment: A few commenters (a) Minor changes, including services, or supplementary aids and recommended including the proper technical changes made to the language services. This provision ties the functioning of hearing aids in the published in the NPRM; definition to a child’s educational definition of assistive technology device.sroberts on PROD1PC70 with RULES (b) Suggested changes the Secretary is needs, which public agencies must meet Discussion: We believe that the not legally authorized to make under in order to ensure that a child with a provision requiring public agencies to applicable statutory authority; and disability receives a free appropriate ensure that hearing aids worn in school (c) Comments that express concerns of public education (FAPE). are functioning properly is more a general nature about the Department Changes: None. appropriately included in new § 300.113 VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46548 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations (proposed § 300.105(b)). As noted in the telephone assisted services, was an paragraph that sets forth the Federal Analysis of Comments and Changes important skill for a particular child definition]; section discussing subpart B, we have (e.g., as part of a transition plan), it 2. Is created by a developer as a added a new § 300.113 to address the would be appropriate to conduct an public school, or is adapted by a routine checking (i.e., making sure they evaluation of that particular child to developer from an existing public are turned on and working) of hearing determine if the child needed school, and is operated under public aids and external components of specialized instruction in order to use supervision and direction; surgically implanted devices. such services. 3. Operates in pursuit of a specific set Changes: None. Changes: None. of educational objectives determined by Comment: One commenter requested the school’s developer and agreed to by Assistive Technology Service (§ 300.6) that the definition of assistive the authorized public chartering agency; Comment: One commenter requested technology service specifically exclude a 4. Provides a program of elementary clarifying ‘‘any service’’ in the medical device that is surgically or secondary education, or both; definition of assistive technology implanted, the optimization of device 5. Is nonsectarian in its programs, service. functioning, maintenance of the device, admissions policies, employment Discussion: We believe the definition and the replacement of the device. practices, and all other operations, and is clear that an assistive technology Discussion: The definition of related is not affiliated with a sectarian school service is any service that helps a child services in § 300.34(b) specifically or religious institution; with a disability select an appropriate excludes a medical device that is 6. Does not charge tuition; assistive technology device, obtain the surgically implanted, the optimization 7. Complies with the Age device, or train the child to use the of device functioning, maintenance of Discrimination Act of 1975, Title VI of device. the device, or the replacement of that the Civil Rights Act of 1964, Title IX of Changes: None. device. In addition, the definition of the Education Amendments of 1972, Comment: One commenter stated that assistive technology device in § 300.5 Section 504 of the Rehabilitation Act of services necessary to support the use of specifically excludes a medical device 1973, Title II of the Americans with playback devices for recordings for the that is surgically implanted and the Disabilities Act of 1990, and Part B of blind and dyslexic should be added to replacement of that device. We believe the Individuals with Disabilities the definition of assistive technology it is unnecessary to repeat these Education Act; service. exclusions in the definition of assistive 8. Is a school to which parents choose Discussion: A service to support the technology service. to send their children, and that admits use of recordings for the blind and Changes: None. students on the basis of a lottery, if more dyslexic on playback devices could be students apply for admission than can considered an assistive technology Charter School (§ 300.7) be accommodated; service if it assists a child with a Comment: Several commenters 9. Agrees to comply with the same disability in the selection, acquisition, suggested that we include in the Federal and State audit requirements as or use of the device. If so, and if the regulations the definitions of terms that do other elementary schools and child’s IEP Team determines it is are defined in other statutes. For secondary schools in the State, unless needed for the child to receive FAPE, example, one commenter requested such requirements are specifically the service would be provided. The including the definition of charter waived for the purpose of this program definition of assistive technology service school in the regulations. [the Public Charter School Program]; does not list specific services. We do not Discussion: Including the actual 10. Meets all applicable Federal, believe it is practical or possible to definitions of terms that are defined in State, and local health and safety include an exhaustive list of assistive statutes other than the Act is requirements; technology services, and therefore, problematic because these definitions 11. Operates in accordance with State decline to add the specific assistive may change over time (i.e., through law; and technology service recommended by the changes to statutes that establish the 12. Has a written performance commenter to the definition. definitions). In order for these contract with the authorized public Changes: None. regulations to retain their accuracy over chartering agency in the State that Comment: One commenter time, the U.S. Department of Education includes a description of how student recommended evaluating all children (Department) would need to amend the performance will be measured in charter with speech or hearing disabilities to regulations each time an included schools pursuant to State assessments determine if they can benefit from the definition that is defined in another that are required of other schools and Federal Communications Commission’s statute changes. The Department pursuant to any other assessments specialized telephone assistive services believes that this could result in mutually agreeable to the authorized for people with disabilities. significant confusion. public chartering agency and the charter Discussion: Evaluations under section However, we are including the school. 614 of the Act are for the purpose of current definition of charter school in Changes: None. determining whether a child has a section 5210(1) of the ESEA here for Child With a Disability (§ 300.8) disability and because of that disability reference. needs special education and related The term charter school means a General (§ 300.8(a)) services, and for determining the child’s public school that: Comment: Several commenters stated special education and related services 1. In accordance with a specific State that many children with fetal alcohol needs. It would be inappropriate under statute authorizing the granting of syndrome (FAS) do not receive special the Act to require evaluations for other charters to schools, is exempt from education and related services andsroberts on PROD1PC70 with RULES purposes or to require an evaluation for significant State or local rules that recommended adding a disability telephone assistive services for all inhibit the flexible operation and category for children with FAS to help children with speech and hearing management of public schools, but not solve this problem. disabilities. However, if it was from any rules relating to the other Discussion: We believe that the determined that learning to use requirements of this paragraph [the existing disability categories in section VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46549 602(3) of the Act and in these determine whether a service that is performance,’’ which school district regulations are sufficient to include included in the definition of related personnel interpret to mean that the children with FAS who need special services should also be considered child must be failing in school to education and related services. Special special education in that State. receive special education and related education and related services are based Changes: None. services. on the identified needs of the child and Comment: None. Discussion: As noted in the Analysis not on the disability category in which Discussion: Section § 300.8(a)(2)(ii) of Comments and Changes section the child is classified. We, therefore, do contains an incorrect reference to discussing subpart B, we have clarified not believe that adding a separate § 300.38(a)(2). The correct reference in § 300.101(c) that a child does not disability category for children with should be to § 300.39(a)(2). have to fail or be retained in a course FAS is necessary to ensure that children Changes: We have removed the or grade in order to be considered for with FAS receive the special education reference to § 300.38(a)(2) and replaced special education and related services. and related services designed to meet it with a reference to § 300.39(a)(2). However, in order to be a child with a their unique needs resulting from FAS. Children Aged Three Through Nine disability under the Act, a child must Changes: None. Experiencing Developmental Delays have one or more of the impairments Comment: Some commenters identified in section 602(3) of the Act (§ 300.8(b)) suggested that the definition of child and need special education and related with a disability be changed to ‘‘student Comment: Several commenters services because of that impairment. with a disability’’ and that the word expressed support for allowing LEAs to Given the change in § 300.101(c), we do ‘‘student,’’ rather than ‘‘child,’’ be used select a subset of the age range from not believe clarification in § 300.8(c)(3) throughout the regulations because three through nine for their definition of is necessary. students over the age of 18 are not developmental delay. A few Changes: None. children. commenters recommended clarifying Discussion: Section 602(3) of the Act that States, not the LEAs, define the age Emotional Disturbance (§ 300.8(c)(4)) defines child with a disability, not range of children eligible under this Comment: Numerous commenters student with a disability. Therefore, we category of developmental delay. requested defining or eliminating the do not believe it is appropriate to Discussion: Section 300.8(b) states term ‘‘socially maladjusted’’ in the change the definition as requested by that the use of the developmental delay definition of emotional disturbance the commenters. The words ‘‘child’’ and category for a child with a disability stating that there is no accepted ‘‘student’’ are used throughout the Act aged three through nine, or any subset definition of the term, and no valid or and we generally have used the word of that age range, must be made in reliable instruments or methods to ‘‘child’’ or ‘‘children,’’ except when accordance with § 300.111(b). Section identify children who are, or are not, referring to services and activities for 300.111(b) gives States the option of ‘‘socially maladjusted.’’ Some older students (e.g., transition services, adopting a definition of developmental commenters stated that children who postsecondary goals). delay, but does not require an LEA to need special education and related Changes: None. adopt and use the term. However, if an services have been denied these Comment: Some commenters LEA uses the category of developmental services, or have been inappropriately supported § 300.8(a)(2), which states delay, the LEA must conform to both the identified under other disability that if a child needs only a related State’s definition of the term and the age categories and received inappropriate service and not special education, the range that has been adopted by the services because the definition of child is not a child with a disability State. If a State does not adopt the emotional disturbance excludes under the Act. Another commenter category of developmental delay, an children who are socially maladjusted. recommended a single standard for the LEA may not use that category as the One commenter stated that using the provision of a related service as special basis for establishing a child’s eligibility term ‘‘socially maladjusted’’ contributes education, rather than allowing States to for special education and related to the negative image of children with determine whether a related service is services. mental illness and does a disservice to special education. Based on the comments, it appears children with mental illness and those Discussion: Section 300.8(a)(2)(i) that § 300.8(b) has been misinterpreted who seek to understand mental illness. states that if a child has one of the as stating that LEAs are allowed to One commenter stated that emotional disabilities listed in § 300.8(a)(1), but establish the age range for defining disturbance is one of the most misused only needs a related service, the child developmental delay independent of the and misunderstood disability categories is not a child with a disability under the State. We believe it is important to and is often improperly used to protect Act. However, § 300.8(a)(2)(ii) provides avoid such confusion and, therefore, dangerous and aggressive children who that, if a State considers a particular will modify § 300.8(b) to clarify the violate the rights of others. The service that could be encompassed by provision. commenter stated that the definition of the definition of related services also to Changes: For clarity, we have emotional disturbance is vague and be special education, then the child removed the phrase, ‘‘at the discretion offers few objective criteria to would be determined to be a child with of the State and LEA in accordance with differentiate an emotional disability a disability under the Act. We believe it § 300.111(b)’’ and replaced it with from ordinary development, and is important that States have the ‘‘subject to the conditions in requires the exclusion of conditions in flexibility to determine whether, § 300.111(b).’’ which the child has the ability to consistent with the definition of the control his or her behavior, but chooses term special education in section Deafness (§ 300.8(c)(3)) to violate social norms. 602(29) of the Act and new § 300.39 Comment: One commenter stated that One commenter recommended addingsroberts on PROD1PC70 with RULES (proposed § 300.38), such a service children who are hard of hearing are autism to the list of factors in should be regarded as special education often denied special education and § 300.8(c)(4)(i)(A) that must be ruled out and to identify a child who needs that related services because the definition before making an eligibility service as a child with a disability. of deafness includes the phrase, determination based on emotional States are in the best position to ‘‘adversely affects a child’s educational disturbance. The commenter stated that VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46550 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations many children with autism are We do not believe the definition of misclassified as emotionally disturbed. inappropriately placed in alternative mental retardation needs to be changed A number of commenters stated that educational programs designed for because it is defined broadly enough in Tourette syndrome is a neurological children with serious emotional and § 300.8(c)(6) to include a child’s disorder and not an emotional disorder, behavioral problems. functional limitations in specific life yet children with Tourette syndrome Discussion: Historically, it has been areas, as requested by the commenter. continue to be viewed as having a very difficult for the field to come to There is nothing in the Act or these behavioral or conduct disorder and, consensus on the definition of regulations that would prevent a State therefore, do not receive appropriate emotional disturbance, which has from including ‘‘functional limitations special education and related services. remained unchanged since 1977. On in specific life areas’’ in a State’s Discussion: The list of acute or February 10, 1993, the Department definition of mental retardation, as long chronic health conditions in the published a ‘‘Notice of Inquiry’’ in the as the State’s definition is consistent definition of other health impairment is Federal Register (58 FR 7938) soliciting with these regulations. not exhaustive, but rather provides comments on the existing definition of Changes: None. examples of problems that children serious emotional disturbance. The have that could make them eligible for Multiple Disabilities (§ 300.8(c)(7)) special education and related services comments received in response to the notice of inquiry expressed a wide range Comment: One commenter asked why under the category of other health of opinions and no consensus on the the category of multiple disabilities is impairment. We decline to include definition was reached. Given the lack included in the regulations when it is dysphagia, FAS, bipolar disorders, and of consensus and the fact that Congress not in the Act. other organic neurological disorders in did not make any changes that required Discussion: The definition of multiple the definition of other health changing the definition, the Department disabilities has been in the regulations impairment because these conditions recommended that the definition of since 1977 and does not expand are commonly understood to be health emotional disturbance remain eligibility beyond what is provided for impairments. However, we do believe unchanged. We reviewed the Act and in the Act. The definition helps ensure that Tourette syndrome is commonly the comments received in response to that children with more than one misunderstood to be a behavioral or the NPRM and have come to the same disability are not counted more than emotional condition, rather than a conclusion. Therefore, we decline to once for the annual report of children neurological condition. Therefore, make any changes to the definition of served because States do not have to including Tourette syndrome in the emotional disturbance. decide among two or more disability definition of other health impairment categories in which to count a child may help correct the misperception of Changes: None. with multiple disabilities. Tourette syndrome as a behavioral or Comment: One commenter suggested Changes: None. conduct disorder and prevent the that the regulations include a process to misdiagnosis of their needs. identify children who are at risk for Orthopedic Impairment (§ 300.8(c)(8)) Changes: We have added Tourette having an emotional disturbance. Comment: One commenter requested syndrome as an example of an acute or Discussion: We decline to include a that the examples of congenital chronic health problem in process to identify children who are at anomalies in the definition of § 300.8(c)(9)(i). risk for having an emotional orthopedic impairment in current Comment: A few commenters disturbance. A child who is at risk for § 300.7(c)(8) be retained. expressed concern about determining a having any disability under the Act is Discussion: The examples of child’s eligibility for special education not considered a child with a disability congenital anomalies in current services under the category of other under § 300.8 and section 602(3) of the § 300.7(c)(8) are outdated and health impairment based on conditions Act and, therefore, is not eligible for unnecessary to understand the meaning that are not medically determined services under the Act. of orthopedic impairment. We, health problems, such as ‘‘central Changes: None. therefore, decline to include the auditory processing disorders’’ or Mental Retardation (§ 300.8(c)(6)) examples in § 300.8(c)(8). ‘‘sensory integration disorders.’’ One Changes: None. commenter recommended that the Comment: One commenter suggested regulations clarify that ‘‘chronic or acute using the term ‘‘intellectual disability’’ Other Health Impairment (§ 300.8(c)(9)) health problems’’ refer to health in place of ‘‘mental retardation’’ because Comment: We received a significant problems that are universally ‘‘intellectual disability’’ is a more number of comments requesting that we recognized by the medical profession. acceptable term. The commenter also include other examples of specific acute Discussion: We cannot make the stated that the definition of mental or chronic health conditions in the change requested by the commenters. retardation is outdated, and should, definition of other health impairment. A The determination of whether a child is instead, address a child’s functional few commenters recommended eligible to receive special education and limitations in specific life areas. including children with dysphagia related services is made by a team of Discussion: Section 602(3)(A) of the because these children have a qualified professionals and the parent of Act refers to a ‘‘child with mental swallowing and feeding disorder that the child, consistent with retardation,’’ not a ‘‘child with affects a child’s vitality and alertness § 300.306(a)(1) and section 614(b)(4) of intellectual disabilities,’’ and we do not due to limitations in nutritional intake. the Act. The team of qualified see a compelling reason to change the Other commenters recommended professionals and the parent of the child term. However, States are free to use a including FAS, bipolar disorders, and must base their decision on careful different term to refer to a child with organic neurological disorders. consideration of information from asroberts on PROD1PC70 with RULES mental retardation, as long as all Numerous commenters requested variety of sources, consistent with children who would be eligible for including Tourette syndrome disorders § 300.306(c). There is nothing in the Act special education and related services in the definition of other health that requires the team of qualified under the Federal definition of mental impairment because children with professionals and the parent to consider retardation receive FAPE. Tourette syndrome are frequently only health problems that are VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46551 universally recognized by the medical disability in §§ 300.307 through Consent (§ 300.9) profession, as requested by the 300.311. We do not believe it is Comment: Numerous commenters commenters. Likewise, there is nothing necessary to repeat these procedures in noted that the regulations include the in the Act that would prevent a State the definition of specific learning terms ‘‘consent,’’ ‘‘informed consent,’’ from requiring a medical evaluation for disability. ‘‘agree,’’ and ‘‘agree in writing’’ and eligibility under other health Section 602(30) of the Act refers to a asked whether all the terms have the impairment, provided the medical ‘‘disorder’’ in one or more of the basic same meaning. evaluation is conducted at no cost to the psychological processes and not to a Discussion: These terms are used parent. ‘‘disability’’ in one or more of the basic throughout the regulations and are Changes: None. psychological processes. We believe it Comment: One commenter stated that consistent with their use in the Act. The would be inconsistent with the Act to definition of consent requires a parent the category of other health impairment change ‘‘disorder’’ to ‘‘disability,’’ as is one of the most rapidly expanding to be fully informed of all information recommended by one commenter. We relevant to the activity for which eligibility categories because the do not believe that the terms definition is vague, confusing, and consent is sought. The definition also ‘‘developmental aphasia’’ and ‘‘minimal requires a parent to agree in writing to redundant. The commenter noted that brain dysfunction’’ should be removed the definition of other health an activity for which consent is sought. from the definition. Although the terms Therefore, whenever consent is used in impairment includes terms such as may not be as commonly used as ‘‘alertness’’ and ‘‘vitality,’’ which are these regulations, it means that the ‘‘specific learning disability,’’ the terms consent is both informed and in writing. difficult to measure objectively. continue to be used and we see no harm Discussion: We believe that the The meaning of the terms ‘‘agree’’ or in retaining them in the definition. We ‘‘agreement’’ is not the same as consent. definition of other health impairment is do not agree that the phrase ‘‘imperfect generally understood and that the group ‘‘Agree’’ or ‘‘agreement’’ refers to an ability’’ implies that a child has a minor understanding between the parent and of qualified professionals and the parent problem and, therefore, decline to responsible for determining whether a the public agency about a particular change this phrase in the definition of question or issue, which may be in child is a child with a disability are able specific learning disability. to use the criteria in the definition and writing, depending on the context. Changes: None. Changes: None. appropriately identify children who Comment: We received several need special education and related Comment: A few commenters requests to revise the definition of recommended adding a requirement to services. Therefore, we decline to specific learning disability to include change the definition. the definition of consent that a parent be specific disabilities or disorders that are fully informed of the reasons why a Changes: None. often associated with specific learning public agency selected one activity over Specific Learning Disability disabilities, including Aspergers another. (§ 300.8(c)(10)) syndrome, FAS, auditory processing Discussion: We do not believe it is Comment: One commenter disorders, and nonverbal learning necessary to include the additional recommended changing the definition disabilities. requirement recommended by the of specific learning disability to refer to Discussion: Children with many types commenter. The definition of consent a child’s response to scientific, research- of disabilities or disorders may also already requires that the parent be fully based intervention as part of the have a specific learning disability. It is informed of all the information relevant procedures for evaluating children with not practical or feasible to include all to the activity for which consent is disabilities, consistent with the different disabilities that are often sought. § 300.307(a). A few commenters associated with a specific learning Changes: None. recommended aligning the definition of disability. Therefore, we decline to add Comment: A few commenters specific learning disability with the these specific disorders or disabilities to requested that the Department address requirements for determining eligibility the definition of specific learning situations in which a child is receiving in § 300.309. disability. special education services and the One commenter recommended using Changes: None. child’s parent wants to discontinue the word ‘‘disability,’’ instead of Comment: A few commenters services because they believe the child ‘‘disorder,’’ and referring to specific suggested clarifying the word ‘‘cultural’’ no longer needs special education learning disabilities as a ‘‘disability in in § 300.8(c)(10)(ii) to clarify that services. A few commenters stated that one or more of the basic psychological cultural disadvantage or language public agencies should not be allowed processes.’’ A few commenters stated cannot be the basis for determining that to use the procedural safeguards to that the terms ‘‘developmental aphasia’’ a child has a disability. continue to provide special education and ‘‘minimal brain dysfunction’’ are Discussion: We believe the term and related services to a child whose antiquated and should be removed from ‘‘cultural’’ is generally understood and parent withdraws consent for the the definition. A few commenters do not see a need for further continued provision of special questioned using ‘‘imperfect ability’’ in clarification. We also do not believe that education and related services. the definition because it implies that a it is necessary to clarify that language Discussion: The Department intends child with minor problems in listening, cannot be the basis for determining to propose regulations to permit parents thinking, speaking, reading, writing, whether a child has a specific learning who previously consented to the spelling, or calculating math could be disability. Section 300.306(b)(1)(iii), initiation of special education services, determined to have a specific learning consistent with section 614(b)(5)(C) of to withdraw their consent for their child disability. the Act, clearly states that limited to receive, or continue to receive,sroberts on PROD1PC70 with RULES Discussion: The definition of specific English proficiency cannot be the basis special education services. Because this learning disability is consistent with the for determining a child to be a child is a change from the Department’s procedures for evaluating and with a disability under any of the longstanding policies and was not determining the eligibility of children disability categories in § 300.8. proposed in the NPRM, we will provide suspected of having a specific learning Changes: None. the public the opportunity to comment VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46552 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations on this proposed change in a separate government. The Department’s Educational Service Agency (§ 300.12) notice of proposed rulemaking. nonregulatory guidance on ‘‘Highly Changes: None. Comment: One commenter questioned Qualified Teachers, Improving Teacher the accuracy of the citation, 20 U.S.C. Core Academic Subjects (§ 300.10) Quality State Grants’’ (August 3, 2005) 1401(5), as the basis for including explains that if a State issues a Comment: A few commenters ‘‘intermediate educational unit’’ in the composite social studies license, the suggested adding the definition of core definition of educational service agency. State must determine in which of the academic subjects from the ESEA to the four areas (history, geography, Discussion: The definition of regulations and including any economics, and civics and government), educational service agency is based on additional subjects that are considered if any, a teacher is qualified. (see the provisions in section 602(5) of the core academic subjects for children in question A–20 in the Department’s Act. The definition was added by the the State in which the child resides. nonregulatory guidance available at Amendments to the Individuals with Discussion: The definition of core http://www.ed.gov/programs/ Disabilities Education Act in 1997, Pub. academic subjects in § 300.10, teacherqual/legislation.html#guidance). L. 105–17, to replace the definition of consistent with section 602(4) of the Changes: None. ‘‘intermediate educational unit’’ (IEU) in Act, is the same as the definition in section 602(23) of the Act, as in effect section 9101 of the ESEA. We believe it Day; Business Day; School Day prior to June 4, 1997. Educational is unnecessary to change the definition (§ 300.11) service agency does not exclude entities to include additional subjects that Comment: A few commenters stated that were considered IEUs under prior particular States consider to be core that a partial day should be considered law. To avoid any confusion about the academic subjects. However, there is a school day only if there is a safety use of this term, the definition clarifies nothing in the Act or these regulations reason for a shortened day, such as a that educational service agency includes that would prevent a State from two hour delay due to snow, and that entities that meet the definition of IEU including additional subjects in its regularly scheduled half days should in section 602(23) of the Act as in effect definition of ‘‘core academic subjects.’’ not be considered a school day for prior to June 4, 1997. We believe the Changes: None. funding purposes. One commenter citation for IEU is consistent with the Comment: A few commenters Act. stated that many schools count the time requested clarifying the definition of Changes: None. on the bus, recess, lunch period, and core academic subjects for a secondary Comment: One commenter requested passing periods as part of a school day school student when the student is that the regulations clarify that the for children with disabilities, and functioning significantly below the reference to the definition of recommended that the regulations secondary level. educational service agency in the Discussion: The definition of core clarify that non-instructional time does not count against a child’s instructional definition of local educational agency or academic subjects does not vary for day unless such times are counted LEA in § 300.28 means that educational secondary students who are functioning against the instructional day of all service agencies (ESAs) and Bureau of significantly below grade level. The Act children. One commenter recommended Indian Affairs (BIA) schools have full focuses on high academic standards and the definition of school day include responsibility and rights as LEAs under clear performance goals for children days on which extended school year all provisions of the Act, including with disabilities that are consistent with (ESY) services are provided to children § 300.226 (early intervening services). the standards and expectations for all children. As required in § 300.320(a), with disabilities. Discussion: With respect to ESAs, we each child’s IEP must include annual Discussion: The length of the school believe that the provisions in § 300.12 goals to enable the child to be involved day and the number of school days do and § 300.28 clarify that ESAs have full in and make progress in the general not affect the formula used to allocate responsibility and rights as LEAs, education curriculum, and a statement Part B funds to States. School day, as including the provisions in § 300.226 of the special education and related defined in § 300.11(c)(1), is any day or related to early intervening services. services and supplementary aids and partial day that children are in However, the commenter’s request services to enable the child to be attendance at school for instructional regarding BIA schools is inconsistent involved and make progress in the purposes. If children attend school for with the Act. The definition of local general education curriculum. It would, only part of a school day and are educational agency in § 300.28 and therefore, be inconsistent and contrary released early (e.g., on the last day section 602(19) of the Act, including the to the purposes of the Act for the before summer vacation), that day provision on BIA funded schools in definition of core academic subjects to would be considered to be a school day. section 602(19)(C) of the Act and in be different for students who are Section 300.11(c)(2) already defines § 300.28(c), states that the term ‘‘LEA’’ functioning below grade level. school day as having the same meaning includes an elementary school or Changes: None. for all children, including children with secondary school funded by the BIA, Comment: One commenter asked that and without disabilities. Therefore, it is ‘‘but only to the extent that the the core content area of ‘‘science’’ apply unnecessary for the regulations to inclusion makes the school eligible for to social sciences, as well as natural clarify that non-instructional time (e.g., programs for which specific eligibility is sciences. recess, lunch) is not counted as not provided to the school in another Discussion: We cannot change the instructional time for a child with a provision of law and the school does not regulations in the manner recommended disability unless such times are counted have a student population that is by the commenter because the ESEA as instructional time for all children. smaller than the student population of does not identify ‘‘social sciences’’ as a Consistent with this requirement, days the LEA receiving assistance under thesroberts on PROD1PC70 with RULES core academic subject. Neither does it on which ESY services are provided Act with the smallest student identify ‘‘social studies’’ as a core cannot be counted as a school day population.’’ Therefore, BIA schools do academic subject. Instead, it identifies because ESY services are provided only not have full responsibility and rights as specific core academic areas: History, to children with disabilities. LEAs under all provisions of the Act. geography, economics, and civics and Changes: None. Changes: None. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46553 Excess Costs (§ 300.16) language in section 602(9) of the Act. requirements set forth in the State’s Comment: One commenter stated that We believe it is unnecessary to change public charter school law; and an example on calculating excess costs the definition of FAPE in the manner (ii) The teacher has not had would be a helpful addition to the recommended by the commenters certification or licensure requirements regulations. because providing services in waived on an emergency, temporary, or Discussion: We agree with the conformity with a child’s IEP in the LRE provisional basis; is implicit in the definition of FAPE. (B) When used with respect to— commenter and will include an example Consistent with § 300.17(b), FAPE (i) An elementary school teacher who of calculating excess costs in Appendix means that special education and is new to the profession, means that the A to Part 300—Excess Costs related services must meet the standards teacher— Calculation. In developing the example, (I) Holds at least a bachelor’s degree; we noted that while the requirements in of the SEA and the requirements in Part B of the Act, which include the LRE and § 300.202 exclude debt service and (II) Has demonstrated, by passing a capital outlay in the calculation of requirements in §§ 300.114 through 300.118. Additionally, § 300.17(d) rigorous State test, subject knowledge excess costs, the definition of excess and teaching skills in reading, writing, costs in § 300.16 does not mention this provides that FAPE means that special education and related services are mathematics, and other areas of the exclusion. We believe it is important to basic elementary school curriculum include this exclusion in the definition provided in conformity with an IEP that meets the requirements in section (which may consist of passing a State- of excess costs and will add language in required certification or licensing test or § 300.16 to make this clear and 614(d) of the Act. Consistent with section 614(d)(1)(i)(V) of the Act, the tests in reading, writing, mathematics, consistent with the requirements in and other areas of the basic elementary § 300.202. IEP must include a statement of the extent, if any, to which the child will school curriculum); or Changes: We have revised § 300.16(b) (ii) A middle or secondary school to clarify that the calculation of excess not participate with nondisabled children in the regular education class. teacher who is new to the profession, costs may not include capital outlay or means that the teacher holds at least a debt service. We have also added Changes: None. Comment: One commenter bachelor’s degree and has demonstrated Appendix A to Part 300—Excess Costs a high level of competency in each of Calculation that provides an example recommended removing ‘‘including the requirements of this part’’ in § 300.17(b) the academic subjects in which the and an explanation of how to calculate teacher teaches by— excess costs under the Act. A reference because this phrase is not included in (I) Passing a rigorous State academic to Appendix A has been added in the Act, and makes every provision in subject test in each of the academic § 300.16(b). Part B of the Act a component of FAPE. subjects in which the teacher teaches Discussion: Section 300.17 is the same Free Appropriate Public Education or (which may consist of a passing level of as current § 300.13, which has been in FAPE (§ 300.17) performance on a State-required the regulations since 1977. We do not certification or licensing test or tests in Comment: One commenter stated that believe that § 300.17 makes every each of the academic subjects in which the requirements in §§ 300.103 through provision of this part applicable to the teacher teaches); or 300.112 (Other FAPE Requirements) FAPE. (II) Successful completion, in each of should be included in the definition of Changes: None. the academic subjects in which the FAPE. Highly Qualified Special Education teacher teaches, of an academic major, Discussion: The other FAPE Teachers (§ 300.18) a graduate degree, coursework requirements in §§ 300.103 through equivalent to an undergraduate 300.112 are included in subpart B of Comment: One commenter requested academic major, or advanced these regulations, rather than in the including the definition of ‘‘highly certification or credentialing; and definition of FAPE in subpart A, to be qualified teacher,’’ as defined in the (C) When used with respect to an consistent with the order and structure ESEA, in the regulations. elementary, middle, or secondary school of section 612 of the Act, which Discussion: The ESEA defines ‘‘highly teacher who is not new to the includes all the statutory requirements qualified’’ with regard to any public profession, means that the teacher holds related to State eligibility. The order and elementary or secondary school teacher. at least a bachelor’s degree and— structure of these regulations follow the For the reasons set forth earlier in this (i) Has met the applicable standard in general order and structure of the notice, we are not adding definitions clause (i) or (ii) of subparagraph (B), provisions in the Act in order to be from other statutes to these regulations. which includes an option for a test; or helpful to parents, State and LEA However, we will include the current (ii) Demonstrates competence in all personnel, and the public both in definition here for reference. the academic subjects in which the reading the regulations, and in finding The term ‘‘highly qualified’’— teacher teaches based on a high the direct link between a given statutory (A) When used with respect to any objective uniform State standard of requirement and the regulation related public elementary school or secondary evaluation that— to that requirement. school teacher teaching in a State, (I) Is set by the State for both grade Changes: None. means that— appropriate academic subject matter Comment: Some commenters stated (i) The teacher has obtained full State knowledge and teaching skills; that the definition of FAPE should certification as a teacher (including (II) Is aligned with challenging State include special education services that certification obtained through academic content and student academic are provided in conformity with a alternative routes to certification) or achievement standards and developed child’s IEP in the least restrictive passed the State teacher licensing in consultation with core contentsroberts on PROD1PC70 with RULES environment (LRE), consistent with the examination, and holds a license to specialists, teachers, principals, and standards of the State educational teach in such State, except that when school administrators; agency (SEA). used with respect to any teacher (III) Provides objective, coherent Discussion: The definition of FAPE in teaching in a public charter school, the information about the teacher’s § 300.17 accurately reflects the specific term means that the teacher meets the attainment of core content knowledge in VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46554 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations the academic subjects in which a to the extent addressed in § 300.18(c) required to serve children with teacher teaches; and (d), special education teachers who disabilities. (IV) Is applied uniformly to all teach core academic subjects must, in Changes: None. teachers in the same academic subject addition to meeting these requirements, Comment: One commenter and the same grade level throughout the demonstrate subject-matter competency recommended that the regulations State; in each of the core academic subjects in include standards for highly qualified (V) Takes into consideration, but not which the teacher teaches. special education paraprofessionals, be based primarily on, the time the States are responsible for establishing similar to the requirements under the teacher has been teaching in the certification and licensing standards for ESEA. academic subject; special education teachers. Each State Discussion: Section § 300.156(b) (VI) Is made available to the public uses its own standards and procedures specifically requires the qualifications upon request; and to determine whether teachers who for paraprofessionals to be consistent (VII) May involve multiple, objective teach within that State meet its with any State-approved or State- measures of teacher competency. recognized certification, licensing, certification and licensing requirements. Changes: None. registration, or other comparable Comment: A few commenters Teacher qualifications and standards are consistent from State to State to the requirements that apply to the recommended defining the term professional discipline in which those ‘‘special education teacher.’’ Other extent that States work together to establish consistent criteria and personnel are providing special commenters recommended that States education or related services. define highly qualified special reciprocity agreements. It is not the role In addition, the ESEA requires that education teachers and providers. One of the Federal government to regulate paraprofessionals, including special commenter stated that the regulations teacher certification and licensure. education paraprofessionals who assist should define the role of the special Changes: None. in instruction in title I-funded programs, education teacher as supplementing and Comment: One commenter stated that have at least an associate’s degree, have supporting the regular education teacher LEAs must train special education completed at least two years of college, who is responsible for teaching course teachers because most special education or meet a rigorous standard of quality content. teachers are not highly qualified upon and demonstrate, through a formal State One commenter requested that the graduation from a college program. A or local assessment, knowledge of, and regulations clarify that a special few commenters recommended that the the ability to assist in instruction in education teacher who is certified as a regulations encourage SEAs to require reading, writing, and mathematics, regular education teacher with an coursework for both special education reading readiness, writing readiness, or endorsement in special education meets and general education teachers in the mathematics readiness, as appropriate. the requirements for a highly qualified areas of behavior management and Paraprofessionals in title I schools do special education teacher. Another classroom management. One commenter not need to meet these requirements if commenter recommended changing the recommended that the requirements for their role does not involve instructional definition of a highly qualified special special education teachers include support, such as special education education teacher so that States cannot competencies in reading instruction and paraprofessionals who solely provide provide a single certification for all in properly modifying and personal care services. For more areas of special education. One accommodating instruction. Another information on the ESEA requirements commenter requested clarification commenter supported training in for paraprofessionals, see 34 CFR 200.58 regarding the highly qualified special special education and related services and section 1119 of the ESEA, and the education teacher standards for special for general education teachers. One Department’s nonregulatory guidance, education teachers with single State commenter expressed support for Title I Paraprofessionals (March 1, endorsements in the area of special collaboration between special education 2004), which can be found on the education. A few commenters and regular education teachers. Some Department’s Web site at: http:// recommended clarifying that when a commenters recommended requiring a www.ed.gov/policy/elsec/guid/ State determines that a teacher is fully highly qualified general education paraguidance.pdf. certified in special education, this teacher teaching in a self-contained We believe these requirements are means that the teacher is knowledgeable special education classroom to work in sufficient to ensure that children with and skilled in the special education area close collaboration with the special disabilities receive services from in which certification is received. One education teacher assigned to those paraprofessionals who are appropriately commenter recommended that teacher children. Another commenter stated and adequately trained. Therefore, we qualifications and standards be that the definition of a highly qualified decline to include additional standards consistent from State to State. special education teacher will be for paraprofessionals. Discussion: Section 300.18(b), meaningless if the training for teachers Changes: None. consistent with section 602(10)(B) of the is not consistent across States. Comment: Numerous commenters Act, provides that a highly qualified Discussion: Personnel training needs requested clarification as to whether special education teacher must have full vary across States and it would be early childhood and preschool special State special education certification inappropriate for the regulations to education teachers must meet the highly (including certification obtained require training on specific topics. qualified special education teacher through alternative routes to Consistent with § 300.156 and section standards. Several commenters stated certification) or have passed the State 612(a)(14) of the Act, each State is that requiring early childhood and special education teacher licensing responsible for ensuring that teachers, preschool special education teachers to examination and hold a license to teach related services personnel, meet the highly qualified specialsroberts on PROD1PC70 with RULES in the State; have not had special paraprofessionals, and other personnel education teacher standards would education certification or licensure serving children with disabilities under exceed statutory authority and requirements waived on an emergency, Part B of the Act are appropriately and exacerbate the shortage of special temporary, or provisional basis; and adequately prepared and trained and education teachers. A few commenters hold at least a bachelor’s degree. 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  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46555 whether the highly qualified special The highly qualified special most special education teachers will education teacher requirements apply to education teacher requirements apply to need to hold more than one license or preschool teachers. all public school special education certification to meet the highly qualified Discussion: The highly qualified teachers. There are no separate or special education teacher requirements special education teacher requirements special provisions for special education and that the time and expense needed apply to all public elementary school teachers who teach in specialized to obtain the additional licenses or and secondary school special education schools, for teachers of children who are certifications is unreasonable. One teachers, including early childhood or blind and visually impaired, or for commenter stated that schools will have preschool teachers if a State includes teachers of children with other low to hire two or three teachers for every the early childhood or preschool incidence disabilities and we do not one special education teacher, thereby programs as part of its elementary believe there should be because these increasing education costs. school and secondary school system. If children should receive the same high One commenter expressed concern the early childhood or preschool quality instruction from teachers who about losing special education teachers program is not a part of a State’s public meet the same high standards as all who teach multiple subjects in elementary school and secondary school other teachers and who have the subject alternative education and homebound system, the highly qualified special matter knowledge and teaching skills programs because they will not meet the education teacher requirements do not necessary to assist these children to highly qualified special education apply. achieve to high academic standards. teacher requirements. One commenter Changes: None. Changes: None. expressed concern that the requirements Comment: One commenter requested Comment: One commenter requested set a higher standard for teachers in self- clarification regarding the scope of the clarification on how the highly qualified contained classrooms. Another highly qualified special education special education teacher requirements commenter stated that requiring special teacher requirements for instructors impact teachers who teach children of education teachers in secondary schools who teach core academic subjects in different ages. A few commenters to be experts in all subjects is a burden specialized schools, such as schools for recommended adding a provision for that elementary teachers do not have. the blind, and recommended that there special education teachers who teach at Discussion: The Department be different qualifications for instructors multiple age levels, similar to the understands the concerns of the who provide orientation and mobility special education teacher who teaches commenters. However, the clear instruction or travel training for multiple subjects. intention of the Act is to ensure that all children who are blind or visually Discussion: The Act does not include children with disabilities have teachers impaired. any special requirements for special with the subject-matter knowledge and One commenter requested adding education teachers who teach at teaching skills necessary to assist travel instructors to the list of special multiple age levels. Teachers who teach children with disabilities achieve to educators who need to be highly at multiple age levels must meet the high academic standards. qualified. Some commenters same requirements as all other special To help States and districts meet recommended adding language to education teachers to be considered these standards, section 651 of the Act include certified and licensed special highly qualified. The clear intent of the authorizes State Personnel Development education teachers of children with low Act is to ensure that all children with grants to help States reform and incidence disabilities as highly qualified disabilities have teachers with the improve their systems for personnel special education teachers. A few subject matter knowledge and teaching preparation and professional commenters requested that the skills necessary to assist children with development in early intervention, requirements for teachers who teach disabilities achieve to high academic educational, and transition services in children with visual impairments standards. Therefore, we do not believe order to improve results for children include competencies in teaching there should be different requirements with disabilities. In addition, section Braille, using assistive technology for teachers who teach at multiple age 662 of the Act authorizes funding for devices, and conducting assessments, levels. institutions of higher education, LEAs, rather than competencies in core subject Changes: None. and other eligible local entities to areas. Some commenters requested more Comment: One commenter improve or develop new training flexibility in setting the standards for recommended including specific criteria programs for teachers and other teachers of children with visual defining a highly qualified special personnel serving children with impairments and teachers of children education literacy teacher. disabilities. with other low incidence disabilities. Discussion: Under § 300.18(a), a Changes: None. One commenter requested clarification special education literacy teacher who Comment: One commenter requested regarding the requirements for teachers is responsible for teaching reading must further clarification regarding the of children with low incidence meet the ESEA highly qualified teacher requirements for secondary special disabilities. requirements including competency in education teachers to be highly Discussion: Consistent with § 300.156 reading, as well as the highly qualified qualified in the core subjects they teach, and section 612(a)(14) of the Act, it is special education teacher requirements. as well as certified in special education. the responsibility of each State to ensure We do not believe that further Discussion: Consistent with that teachers and other personnel regulation is needed as the Act leaves § 300.18(a) and (b) and section serving children with disabilities under teacher certification and licensing 602(10)(A) and (B) of the Act, secondary Part B of the Act are appropriately and requirements to States. special education teachers who teach adequately prepared and trained and Changes: None. core academic subjects must meet the have the content knowledge and skills Comment: Many commenters highly qualified teacher standardssroberts on PROD1PC70 with RULES to serve children with disabilities, expressed concern that the highly established in the ESEA (which including teachers of children with qualified special education teacher includes competency in each core visual impairments and teachers of standards will make it more difficult to academic subject the teacher teaches) children with other low incidence recruit and retain special education and the highly qualified special disabilities. teachers. 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  • 46556 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations § 300.18(b) and section 602(10)(B) of the Discussion: We cannot make the Comment: One commenter stated that Act. changes suggested by the commenter personnel working in charter schools Consistent with § 300.18(c) and because the Act does not require general should meet the same requirements as section 602(10)(C) of the Act, a education teachers who teach children all other public school personnel. secondary special education teacher with disabilities to be certified in Several commenters expressed concern who teaches core academic subjects special education. Further, the regarding the exemption of charter exclusively to children assessed against legislative history of the Act would not school teachers from the highly alternate achievement standards can support these changes. Note 21 in the qualified special education teacher satisfy the highly qualified special U.S. House of Representatives requirements. One commenter stated education teacher requirements by Conference Report No. 108–779 (Conf. that while a special education teacher in meeting the requirements for a highly Rpt.), p. 169, clarifies that general a charter school does not have to be qualified elementary teacher under the education teachers who are highly licensed or certified by the State if the ESEA, or in the case of instruction qualified in particular subjects and who State’s charter school law does not above the elementary level, have subject teach children with disabilities in those require such licensure or certification, matter knowledge appropriate to the subjects are not required to have full all other elements of the highly level of instruction being provided, as State certification as a special education qualified special education teacher determined by the State, to effectively teacher. For example, a reading requirements should apply to charter teach to those standards. specialist who is highly qualified in school teachers, including demonstrated Changes: None. reading instruction, but who is not competency in core academic subject Comment: One commenter expressed certified as a special education teacher, areas. concern that the highly qualified teacher would not be prohibited from providing Discussion: The certification requirements will drive secondary reading instruction to children with requirements for charter school teachers teachers who teach children with disabilities. are established in a State’s public emotional and behavioral disorders out charter school law, and may differ from The Act focuses on ensuring that of the field and requested that the the requirements for full State children with disabilities achieve to requirements be changed to require certification for teachers in other public high academic standards and have special education certification in one schools. The Department does not have access to the same curriculum as other core area, plus a reasonable amount of the authority to change State charter children. In order to achieve this goal, training in other areas. Another school laws to require charter school teachers who teach core academic commenter recommended permitting teachers to meet the same requirements subjects to children with disabilities special education teachers of core as all other public school teachers. academic subjects at the elementary must be competent in the core academic In addition to the certification level to be highly qualified if they major areas in which they teach. This is true requirements established in a State’s in elementary education and have for general education teachers, as well public charter school law, if any, section coursework in math, language arts, and as special education teachers. 602(10) of the Act requires charter science. One commenter recommended Changes: None. school special education teachers to that any special education teacher Comment: Some commenters hold at least a bachelor’s degree and, if certified in a State prior to 2004 be expressed concern that LEAs may they are teaching core academic exempt from having to meet the highly reduce placement options for children subjects, demonstrate competency in the qualified special education teacher with disabilities because of the shortage core academic areas they teach. We will requirements. of highly qualified teachers. A few add language in § 300.18(b) to clarify Discussion: The definition of a highly commenters recommended requiring that special education teachers in public qualified special education teacher in each State to develop and implement charter schools must meet the § 300.18 accurately reflects the policies to ensure that teachers meet the certification or licensing requirements, requirements in section 602(10) of the highly qualified special education if any, established by a State’s public Act. To change the regulations in the teacher requirements, while maintaining charter school law. manner recommended by the a full continuum of services and Changes: We have added the words commenters would be inconsistent with alternative placements to respond to the ‘‘if any’’ in § 300.18(b)(1)(i) to clarify the Act and the Act’s clear intent of needs of children with disabilities. that special education teachers in public ensuring that all children with Discussion: It would be inconsistent charter schools must meet any disabilities have teachers with the with the LRE requirements in section certification or licensing requirements subject matter knowledge and teaching 612(a)(5) of the Act for a public agency established by a State’s public charter skills necessary to assist children with to restrict the placement options for school law. disabilities achieve to high academic children with disabilities. Section Comment: One commenter stated that standards. Therefore, we decline to 300.115, consistent with section the regulations use the terms ‘‘highly change the requirements in § 300.18. 612(a)(5) of the Act, requires each qualified’’ and ‘‘fully certified’’ in a Changes: None. public agency to ensure that a manner that implies they are Comment: One commenter stated that continuum of alternative placements is synonymous, and recommended that there is a double standard in the highly available to meet the needs of children the regulations maintain the distinction qualified teacher requirements because with disabilities. between the two terms. general education teachers are not The additional requirements Discussion: Full State certification is required to be certified in special requested by the commenter are not determined under State law and policy education even though they teach necessary because States already must and means that a teacher has fully met children with disabilities. Another develop and implement policies to State requirements, including anysroberts on PROD1PC70 with RULES commenter recommended requiring ensure that the State meets the LRE and requirements related to a teacher’s years general education teachers who teach personnel standards requirements in of teaching experience. For example, children with disabilities to meet the sections 612(a)(5) and (a)(14) of the Act, State requirements may vary for first- highly qualified special education respectively. year teachers versus teachers who are teacher requirements. Changes: None. not new to the profession. Full State VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46557 certification also means that the teacher fully certified during their training however, was inadvertently omitted in has not had certification or licensure program, while at the same time the NPRM. Therefore, we will add requirements waived on an emergency, individuals in regular teacher training appropriate references in § 300.18(b)(3) temporary, or provisional basis. programs that meet the same to clarify that an individual The terms ‘‘highly qualified’’ and requirements as alternative route to participating in an alternative route to ‘‘fully certified’’ are synonymous when certification programs are not certification program in special used to refer to special education considered highly qualified or fully education who does not intend to teach teachers who are not teaching core certified. One commenter argued that an a core academic subject, may be academic subjects. For special individual participating in an considered a highly qualified special education teachers teaching core alternative route to certification program education teacher if the individual academic subjects, however, both full would need certification waived on an holds at least a bachelor’s degree and special education certification or emergency, temporary, or provisional participates in an alternative route to licensure and subject matter basis, which means the individual has certification program that meets the competency are required. not met the requirements in requirements in § 300.18(b)(2). Changes: We have changed the § 300.18(b)(1)(ii). Another commenter Changes: Appropriate citations have heading to § 300.18(a) and the stated that three years is not enough been added in § 300.18(b)(3) to clarify introductory material in § 300.18(a) and time for a teacher enrolled in an the requirements for individuals (b)(1) for clarity. alternative route to certification program enrolled in alternative route to special Comment: A few commenters to assume the functions of a teacher. education teacher certification recommended prohibiting States from Discussion: While we understand the programs. creating new categories to replace general objections to alternative route to Comment: A few commenters emergency, temporary, or provisional certification programs expressed by the recommended more specificity in the licenses that lower the standards for full commenters, the Department believes requirements for teachers participating certification in special education. that alternative route to certification in alternative route to certification Discussion: We do not believe it is programs provide an important option programs, rather than giving too much necessary to add the additional language for individuals seeking to enter the discretion to States to develop programs recommended by the commenters. teaching profession. The requirements that do not lead to highly qualified Section 300.18(b)(1)(ii) and section in § 300.18(b)(2) were included in these personnel. However, one commenter 602(10)(B)(ii) of the Act are clear that a regulations to provide consistency with recommended allowing States the teacher cannot be considered a highly the requirements in 34 CFR flexibility to create their own guidelines qualified special education teacher if 200.56(a)(2)(ii)(A) and the ESEA, for alternative route to certification the teacher has had special education regarding alternative route to programs. certification or licensure waived on an certification programs. To help ensure Several commenters recommended emergency, temporary, or provisional that individuals participating in clarifying the requirements for the basis. This would include any new alternative route to certification teacher supervising an individual who certification category that effectively programs are well trained, there are is participating in an alternative route to allows special education certification or certain requirements that must be met as certification program. One commenter licensure to be waived on an emergency, well as restrictions on who can be recommended requiring supervision, temporary, or provisional basis. considered to have obtained full State guidance, and support by a professional Changes: None. certification as a special education with expertise in the area of special Comment: Some commenters teacher while enrolled in an alternative education in which the teacher desires supported alternative route to route to certification program. An to become certified. certification programs for special individual participating in an Discussion: Consistent with education teachers. One commenter alternative route to certification program § 300.18(b)(2)(ii), States are responsible stated that these programs are necessary must (1) hold at least a bachelor’s degree for ensuring that the standards for to increase the number of highly and have demonstrated subject-matter alternative route to certification qualified teachers and will help schools competency in the core academic programs in § 300.18(b)(2)(i) are met. It on isolated tribal reservations recruit, subject(s) the individual will be is, therefore, up to each State to train, and retain highly qualified teaching; (2) assume the functions of a determine whether to require specific teachers. However, numerous teacher for not more than three years; qualifications for the teachers commenters expressed concerns and and (3) demonstrate satisfactory responsible for supervising teachers objections to alternative route to progress toward full certification, as participating in an alternative route to certification programs for special prescribed by the State. The individual certification program. education teachers. Several commenters also must receive, before and while Changes: None. stated that allowing individuals making teaching, high-quality professional Comment: One commenter requested progress in an alternative route to development that is sustained, clarification regarding the roles and certification program to be considered intensive, and classroom-focused and responsibilities of special education highly qualified and fully certified have intensive supervision that consists teachers who do not teach core creates a lower standard, short-changes of structured guidance and regular academic subjects. children, is not supported by any ongoing support. Discussion: Special education provision in the Act, and undermines It was the Department’s intent to teachers who do not directly instruct the requirement for special education allow an individual who wants to children in any core academic subject or teachers to be fully certified. One become a special education teacher, but who provide only consultation to highly commenter stated that this provision is does not plan to teach a core academic qualified teachers of core academicsroberts on PROD1PC70 with RULES illogical and punitive to higher subject, to enroll in an alternative route subjects do not need to demonstrate education teacher training programs to certification program and be subject-matter competency in those because it allows individuals in an considered highly qualified, provided subjects. These special educators could alternative route to certification program that the individual holds at least a provide consultation services to other to be considered highly qualified and bachelor’s degree. This requirement, teachers, such as adapting curricula, VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46558 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations using behavioral supports and cognitive disabilities who take an assessed against alternate achievement interventions, or selecting appropriate alternate assessment, a State may, standards to meet the highly qualified accommodations for children with through a documented and validated teacher standards that apply to disabilities. They could also assist standards-setting process, define elementary school teachers. In the case children with study skills or alternate academic achievement of instruction above the elementary organizational skills and reinforce standards, provided those standards— level, the teacher must have subject instruction that the child has already (1) Are aligned with the State’s matter knowledge appropriate to the received from a highly qualified teacher academic content standards; level of instruction being provided, as in that core academic subject. (2) Promote access to the general determined by the State, in order to Changes: None. curriculum; and effectively teach to those standards. Comment: Many commenters (3) Reflect professional judgment of We do not agree that allowing middle recommended including language in the the highest achievement standards and high school students with the most regulations to clarify that special possible. significant cognitive disabilities to be education teachers who do not teach Changes: None. taught by teachers who meet the core academic subjects and provide only Comment: Several commenters qualifications of a highly qualified consultative services must restrict their expressed concern with allowing high elementary teacher fosters low services to areas that supplement, not school students with significant expectations, encourages students to be replace, the direct instruction provided cognitive disabilities to be taught by a treated like children, promotes by a highly qualified general education certified elementary school teacher. One instruction that is not age appropriate, teacher. One commenter recommended commenter stated that high school or denies students access to the general that States develop criteria for teachers students with disabilities should be curriculum. Although alternate who provide consultation services. prepared to lead productive adult lives, achievement standards differ in Another commenter stated that special and not be treated as young children. complexity from grade-level standards, education teachers should not work on Another commenter stated that these 34 CFR 200.1(d) requires that alternate a consultative basis. requirements foster low expectations for achievement standards be aligned with Discussion: The definition of children with the most significant the State’s content standards, promote consultation services and whether a cognitive disabilities and will be used to access to the general curriculum, and special education teacher provides justify providing children with reflect professional judgment of the consultation services are matters best instruction that is not age appropriate or highest achievement standards possible. left to the discretion of each State. that denies access to the general In short, we believe that the While States may develop criteria to education curriculum. A few requirements in § 300.18(c) will ensure distinguish consultation versus commenters stated that the that teachers teaching exclusively instructional services, the Act and the requirements for special education children who are assessed against ESEA are clear that teachers who teachers teaching to alternate alternate achievement standards will provide direct instruction in a core achievement standards should be the have the knowledge to provide academic subject, including special same as the requirements for all special instruction aligned to grade-level education teachers, must meet the education teachers. content standards so that students with highly qualified teacher requirements, Some commenters recommended the most significant cognitive which include demonstrated requiring teachers who teach to disabilities are taught a curriculum that competency in each of the core alternate achievement standards to have is closely tied to the general curriculum. academic subjects the teacher teaches. subject matter knowledge to provide Changes: None. Changes: None. instruction aligned to the academic Comment: A few commenters content standards for the grade level in requested clarification regarding the Requirements for Highly Qualified which the student is enrolled. One meaning of ‘‘subject matter knowledge Special Education Teachers Teaching to commenter recommended requiring any appropriate to the level of instruction Alternate Achievement Standards special education teacher teaching to provided’’ in § 300.18(c)(2). (§ 300.18(c)) alternate achievement standards to Discussion: Section 300.18(c)(2) Comment: One commenter demonstrate knowledge of age- requires that if a teacher (who is recommended replacing ‘‘alternate appropriate core curriculum content to teaching exclusively to alternate achievement standards’’ with ‘‘alternate ensure children with disabilities are achievement standards) is teaching standards.’’ A few commenters taught a curriculum that is closely tied students who need instruction above the requested including a definition of to the general education curriculum elementary school level, the teacher alternate achievement standards in the taught to other children of the same age. must have subject matter knowledge regulations. Discussion: The regulations appropriate to the level of instruction Discussion: ‘‘Alternate achievement promulgated under section 1111(b)(1) of needed to effectively teach to those standards’’ is statutory language and, the ESEA permit States to use alternate standards. The purpose of this therefore, it would be inappropriate to achievement standards to evaluate the requirement is to ensure that teachers change ‘‘alternate achievement performance of a small group of exclusively teaching children who are standards’’ to ‘‘alternate standards.’’ children with the most significant assessed based on alternate academic For the reasons set forth earlier in this cognitive disabilities who are not achievement standards above the notice, we are not adding definitions expected to meet grade-level standards elementary level have sufficient subject from other statutes to these regulations. even with the best instruction. An matter knowledge to effectively instruct However, we will include the current alternate achievement standard sets an in each of the core academic subjects description of alternate achievement expectation of performance that differs being taught, at the level of difficultysroberts on PROD1PC70 with RULES standards in 34 CFR 200.1(d) of the in complexity from a grade-level being taught. For example, if a high ESEA regulations here for reference. achievement standard. Section school student (determined by the IEP For children under section 602(3) of 602(10)(C)(ii) of the Act, therefore, Team to be assessed against alternate the Individuals with Disabilities allows special education teachers achievement standards) has knowledge Education Act with the most significant teaching exclusively children who are and skills in math at the 7th grade level, VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46559 but in all other areas functions at the who teaches multiple subjects, and who special education teachers, as long as elementary level, the teacher would is highly qualified in mathematics, those adaptations of a State’s HOUSSE need to have knowledge in 7th grade language arts, or science at the time of for use with special education teachers math in order to effectively teach the hire, two years after the date of do not establish lower standards for the student to meet the 7th grade math employment to demonstrate competence content knowledge requirements for standards. No further clarification is in the other core academic subjects in special education teachers. necessary. which the teacher teaches. We do not Discussion: States have the option of Changes: None. believe that further clarification is developing a method by which teachers Comment: A few commenters necessary. can demonstrate competency in each recommended that the regulations Changes: None. subject they teach on the basis of a include requirements for teachers who Comment: One commenter requested HOUSSE. Likewise, we believe States provide instruction to children assessed clarification regarding the meaning of should have the option of developing a against modified achievement the following phrases in § 300.18(d): separate HOUSSE for special education standards. Several commenters stated ‘‘multiple subjects,’’ ‘‘in the same teachers. that the requirements for teachers manner,’’ and ‘‘all the core academic States have flexibility in developing teaching children assessed against subjects.’’ their HOUSSE evaluation as long as it modified achievement standards should Discussion: ‘‘Multiple subjects’’ refers meets each of the following criteria be the same for teachers teaching to two or more core academic subjects. established in section 9101(23)(C)(ii) of children assessed against alternate Section 300.18(d) allows teachers who the ESEA: achievement standards. are new or not new to the profession to • Be set by the State for both grade- Discussion: The Department has not demonstrate competence in ‘‘all the core appropriate academic subject-matter issued final regulations addressing subjects’’ in which the teacher teaches knowledge and teaching skills; modified achievement standards and ‘‘in the same manner’’ as is required for • Be aligned with challenging State the specific criteria for determining an elementary, middle, or secondary academic content and student academic which children with disabilities should school teacher under the ESEA. As used achievement standards and developed be assessed based on modified in this context, ‘‘in the same manner’’ in consultation with core content achievement standards. As proposed, means that special education teachers specialists, teachers, principals, and the modified achievement standards teaching multiple subjects can school administrators; must be aligned with the State’s demonstrate competence in the core • Provide objective, coherent academic content standards for the academic subjects they teach in the information about the teacher’s grade in which the student is enrolled same way that is required for attainment of core content knowledge in and provide access to the grade-level elementary, middle, or secondary school the academic subjects in which a curriculum. For this reason, we see no teachers in 34 CFR 200.56 of the ESEA teacher teaches; need for a further exception to the regulations. ‘‘All the core subjects’’ • Be applied uniformly to all teachers ‘‘highly qualified teacher’’ provisions at refers to the core academic subjects, in the same academic subject and this time. which include English, reading or teaching in the same grade level Changes: None. language arts, mathematics, science, throughout the State; foreign languages, civics and • Take into consideration, but not be Requirements for Highly Qualified government, economics, arts, history, based primarily on, the time the teacher Special Education Teachers Teaching and geography, consistent with § 300.10. has been teaching in the academic Multiple Subjects (§ 300.18(d)) Changes: None. subject; and Comment: A few commenters stated Comment: One commenter • Be made available to the public that the requirements for teachers who recommended ensuring that the upon request. teach two or more core academic requirements in § 300.18(d) apply to The ESEA also permits States, when subjects exclusively to children with special education teachers who teach developing their HOUSSE procedures, disabilities are confusing. Some children with severe disabilities in more to involve multiple, objective measures commenters requested additional than one core subject area. of teacher competency. Each evaluation guidance and flexibility for special Discussion: The requirements in should have a high, objective, uniform education teachers teaching two or more § 300.18(d) do not exclude teachers who standard that the candidate is expected core academic subjects. Other teach children with severe disabilities to meet or to exceed. These standards commenters recommended allowing in more than one core subject area. for evaluation must be applied to each special education teachers more time to Consistent with § 300.18(d) and section candidate in the same way. become highly qualified in all the core 602(10)(D) of the Act, the requirements We believe it is appropriate and academic subjects they teach. apply to special education teachers who consistent with the Act to permit States Discussion: The requirements in teach two or more core academic to develop a separate HOUSSE for § 300.18(d), consistent with section subjects exclusively to children with special education teachers to 602(10)(C) of the Act, provide flexibility disabilities, including, but not limited demonstrate subject matter competency for teachers who teach multiple core to, children with severe disabilities. We and to use a single HOUSSE covering academic subjects exclusively to do not believe that further clarification multiple subjects, provided that any children with disabilities. Section is necessary. adaptations to the HOUSSE do not 300.18(d)(2) and (3) allows teachers who Changes: None. establish a lower standard for the are new and not new in the profession Comment: A significant number of content knowledge requirements for to demonstrate competence in all the commenters recommended adding special education teachers and meet all core academic subjects in which the language to the regulations to permit a the requirements for a HOUSSE forsroberts on PROD1PC70 with RULES teacher teaches using a single, high separate HOUSSE for special education regular education teachers established objective uniform State standard of teachers, including a single HOUSSE in section 9101(23)(C)(ii) of the ESEA. evaluation (HOUSSE) covering multiple that covers multiple subjects. Some Changes: We have added a new subjects. In addition, § 300.18(d)(3) commenters supported a single paragraph (e) to § 300.18 to allow States gives a new special education teacher HOUSSE covering multiple subjects for to develop a separate HOUSSE for VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46560 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations special education teachers and to permit August 3, 2005 (available at http:// 2005), which can be found on the the use of a single HOUSSE covering www.ed.gov/programs/teacherqual/ Department’s Web site at: http:// multiple subjects. Subsequent guidance.doc.) provides the following www.ed.gov/programs/teacherqual/ paragraphs have been renumbered. guidance to States when developing guidance.doc. Comment: A few commenters stated their HOUSSE procedures (see question Changes: None. that the HOUSSE should only be used A–10): Comment: Some commenters to address the content requirements, not • Do the HOUSSE procedures provide requested a definition of ‘‘new’’ special primary certification as a special an ‘‘objective’’ way of determining education teacher and asked whether it educator. whether teachers have adequate subject- applies to teachers hired after the date Discussion: A HOUSSE is a method matter knowledge in each core academic of enactment of the Act, December 3, by which teachers can demonstrate subject they teach? 2004, or after the 2005–06 school year. competency in each subject they teach. • Is there a strong and compelling One commenter asked whether a fully A HOUSSE does not address the rationale for each part of the HOUSSE certified regular education teacher who requirement for full State certification as procedures? enrolls in a special education teacher a special education teacher. • Do the procedures take into training program would be considered Changes: None. account, but not primarily rely on, ‘‘new’’ to the profession when he or she Comment: Several commenters previous teaching experience? completes the training program. recommended clarifying the • Does the plan provide solid Discussion: Under the Act, mere requirements for a HOUSSE, evidence that teachers have mastered completion of a special education particularly at the high school level. the subject-matter content of each of the teacher training program is not a One commenter recommended core academic subjects they are sufficient predicate for being considered clarifying the use of a separate HOUSSE teaching? (Note: experience and a highly qualified special education for teachers of children with visual association with content-focused groups teacher. Section 602(10)(B) of the Act impairments. or organizations do not necessarily requires full State certification or Discussion: The requirements for a translate into an objective measure of licensure as a special education teacher, HOUSSE apply to public school content knowledge.) and this would apply to teachers who elementary, middle, and high school • Has the State consulted with core are already certified or licensed as a special education teachers. Neither the content specialists, teachers, principals, regular education teacher, as well as to Act nor the ESEA provides for different and school administrators? other individuals. HOUSSE procedures at the high school • Does the State plan to widely On the question of when a person is level. Similarly, there are no distribute its HOUSSE procedures, and ‘‘new to the profession,’’ the requirements for separate HOUSSE are they presented in a format Department’s non-regulatory guidance procedures for teachers who teach understandable to all teachers? on Improving Teacher Quality State children with visual impairments or any Changes: None. Grants issued on August 3, 2005, other specific type of disability. We do Comment: A few commenters asked clarifies that States have the authority to not believe it is necessary or appropriate whether the additional time allowed for define which teachers are new and not to establish separate requirements for teachers living in rural areas who teach new to the profession; however, those separate HOUSSE procedures for multiple subjects applies to special definitions must be reasonable. The teachers who teach children with visual education teachers. One commenter guidance further states that the impairments or any other specific type requested that teachers in rural areas Department strongly believes that a of disability. All children with have three extra years after the date of teacher with less than one year of disabilities, regardless of their specific employment to meet the standards. teaching experience is ‘‘new’’ to the disability, should have teachers with the Another commenter stated it will be profession (see Question A–6). (The subject matter knowledge to assist them difficult for these teachers to meet the guidance is available at http:// to achieve to high academic standards. highly qualified special education www.ed.gov/programs/teacherqual/ Changes: None. teacher requirements even with an guidance.doc). This guidance is Comment: One commenter extended deadline. applicable to determinations of when a recommended that States work Discussion: The Department’s policy person is new or not new to the collaboratively to ensure there is State on flexibility for middle and high school profession under section 602(10)(C) and reciprocity of content area standards for teachers in rural schools applies to (D)(ii) of the Act and § 300.18(c) and special education teachers, including special education teachers. Under this (d)(2). HOUSSE provisions. policy, announced on March 15, 2004, Under section 602(10)(D)(iii) of the Discussion: It is up to each State to States may permit LEAs eligible to Act, and reflected in § 300.18(d)(3), determine when and on what basis to participate in the Small Rural School there is additional flexibility for ‘‘a new accept another State’s determination Achievement (SRSA) program that special education teacher’’ who is that a particular teacher is highly employ teachers who teach multiple teaching multiple subjects and is highly qualified. Additionally, each State subjects and are highly qualified in at qualified in mathematics, language arts, determines whether to consider a least one core academic subject, to have or science, to demonstrate competence teacher from another State to be both until the end of the 2006–07 school year in the other core academic subjects in fully certified and competent in each for these teachers to be highly qualified which the teacher teaches in the same subject area. in each subject that they teach. Newly- manner as is required for an elementary, Changes: None. hired teachers in these covered LEAs middle, or secondary school teacher Comment: One commenter requested have three years from the date of hire to who is not new to the profession, which specific guidance on how to design a become highly qualified in each core may include a single, high objectivesroberts on PROD1PC70 with RULES multi-subject HOUSSE for special academic subject that they teach. More uniform State standard of evaluation education teachers. information about this policy is covering multiple subjects, not later Discussion: The Department’s non- available in the Department’s than 2 years after the date of regulatory guidance on Improving nonregulatory guidance, Improving employment. The phrase ‘‘2 years after Teacher Quality State Grants issued on Teacher Quality State Grants (August 3, the date of employment’’ in section VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46561 602(10)(D)(iii) of the Act is interpreted Comment: One commenter Changes: None. to mean 2 years after employment as a recommended requiring schools to post Rule of Construction (New § 300.18(f)) special education teacher. the credentials of educational personnel For purposes of this provision, we (Proposed § 300.18(e)) in a place with public access, and to consider it appropriate to consider a include in the procedural safeguards Comment: A number of commenters fully certified regular education teacher notice a parent’s right to request the stated that the rule of construction in who subsequently becomes fully credentials of any teacher who supports new § 300.18(f) (proposed § 300.18(e)) certified or licensed as a special the child in an educational and § 300.156(e) should use the same education teacher to be considered a environment. Another commenter stated language. One commenter stated that in ‘‘new special education teacher’’ when that parents should have access to order to prevent confusion, the right of they are first hired as a special records documenting the type of action limitations regarding highly education teacher. We will add language supervision that is being provided when qualified teachers in new § 300.18(f) to new § 300.18(g) (proposed § 300.18(f)) a teacher or other service provider is (proposed § 300.18(e)) and personnel to make this clear. under the supervision of a highly qualifications in § 300.156(e) should use Changes: We have restructured qualified teacher. One commenter stated consistent language regarding § 300.18(g) (proposed § 300.18(f)) and that the ESEA requires districts to individual and class actions, and clearly added a new paragraph (g)(2) to permit provide parents with information about underscore that the limitations are a fully certified regular education the personnel qualifications of their applicable to both administrative and teacher who subsequently becomes fully child’s classroom teachers and asked judicial actions. One commenter certified or licensed as a special whether this requirement applies to recommended reiterating the language education teacher to be considered a special education teachers. from section 612(a)(14)(D) of the Act new special education teacher when Discussion: There is nothing in the that nothing prevents a parent from first hired as a special education Act that authorizes the Department to filing a State complaint about staff teacher. require schools to publicly post the qualifications. Another commenter Comment: Some commenters credentials of educational personnel or expressed concern because new recommended that the regulations to provide parents with information § 300.18(f) (proposed § 300.18(e)) and clarify how co-teaching fits with the about the qualification of their child’s § 300.156(e) may be construed to highly qualified special education teachers and other service providers. prevent due process hearings when an teacher requirements. A few Section 615 of the Act describes the LEA or SEA fails to provide a highly commenters stated that a special guaranteed procedural safeguards qualified teacher. education teacher should be considered afforded to children with disabilities a highly qualified teacher if co-teaching Discussion: We agree that the rule of and their parents under the Act but does construction in new § 300.18(f) with a highly qualified general not address whether parents can request education teacher. One commenter (proposed § 300.18(e)) and § 300.156(e) information about the qualifications of stated that co-teaching will encourage should be the same. We will change the teachers and other service providers. districts to work toward more inclusive regulations to clarify that a parent or However, section 1111(h)(6) of the settings for children with disabilities ESEA requires LEAs to inform parents student may not file a due process while also ensuring that teachers with about the quality of a school’s teachers complaint on behalf of a student, or file appropriate qualifications are in the in title I schools. The ESEA requires that a judicial action on behalf of a class of classroom. One commenter supported at the beginning of each school year, an students for the failure of a particular co-teaching as a method for special LEA that accepts title I, part A funding SEA or LEA employee to be highly education teachers to learn core content must notify parents of children in title qualified; however, a parent may file a knowledge and be supported by the I schools that they can request complaint about staff qualifications with general education teacher. One teacher information regarding their child’s the SEA. In addition to permitting a recommended that a highly qualified classroom teachers, including, at a parent to file a complaint with the SEA, general education teacher supervise minimum: (1) Whether the teacher has an organization or an individual may teachers who do not meet the highly met the State requirements for licensure also file a complaint about staff qualified special education teacher and certification for the grade levels and qualifications with the SEA, consistent requirements. subject matters in which the teacher with the State complaint procedures in Discussion: The term ‘‘co-teaching’’ provides instruction; (2) whether the §§ 300.151 through 300.153. has many different meanings depending teacher is teaching under emergency or Changes: We have added ‘‘or to on the context in which it is used. other provisional status through which prevent a parent from filing a complaint Whether and how co-teaching is State qualification or licensing criteria about staff qualifications with the SEA implemented is a matter that is best left have been waived; (3) the college major as provided for under this part’’ in new to State and local officials’ discretion. and any other graduate certification or § 300.18(f) (proposed § 300.18(e)). Therefore, we decline to include degree held by the teacher, and the field Comment: Several commenters language regarding co-teaching in these of discipline of the certification or recommended that the regulations regulations. Regardless of whether co- degree; and (4) whether the child is specify that the failure of an SEA or LEA teaching models are used, States and provided services by paraprofessionals, to provide a child with a disability a LEAs must ensure that teachers meet the and if so, their qualifications. In highly qualified teacher can be a highly qualified teacher requirements in addition, each title I school must consideration in the determination of 34 CFR 200.56 and section 9101(23) of provide parents with timely notice that whether a child received FAPE, if the the ESEA and the highly qualified the parent’s child has been assigned, or child is not learning the core content special education teacher requirements has been taught for four or more standards or not meeting IEP goals.sroberts on PROD1PC70 with RULES in § 300.18 and section 602(10) of the consecutive weeks by, a teacher who is However, a few commenters Act, as well as the personnel not highly qualified. These recommended that the regulations requirements in § 300.156 and section requirements apply only to those special clarify that it is not a denial of FAPE if 612(a)(14) of the Act. education teachers who teach core a special education teacher is not highly Changes: None. academic subjects in title I schools. qualified. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46562 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations Discussion: If the only reason a parent of core academic subjects under the the SEA is in the best position to weigh believes their child was denied FAPE is ESEA. This includes special education the needs of private school children for that the child did not have a highly teachers who teach core academic highly qualified teachers and to assess qualified teacher, the parent would have subjects. what effect these requirements would no right of action under the Act on that The Office of Special Education have on the shortage of special basis. The rules of construction in new programs (OSEP) collects data about education teachers in the State. One § 300.18(f) (proposed § 300.18(e)) and special education personnel commenter asked whether the highly § 300.156(e) do not allow a parent or qualifications and requires that SEAs qualified teacher requirements apply to student to file a due process complaint establish and maintain qualifications to providers in private residential for failure of an LEA or SEA to provide ensure that personnel essential to treatment centers where children with a highly qualified teacher. carrying out the purposes of Part B of disabilities are placed to receive FAPE. Changes: None. the Act are appropriately and Discussion: New § 300.18(h) Comment: One commenter expressed adequately prepared and trained. Those (proposed § 300.18(g)) accurately concern with the rule of construction in personnel must also have the content reflects the Department’s position that new § 300.18(f) (proposed § 300.18(e)) knowledge and skills to serve children the highly qualified special education because there are no requirements to with disabilities, consistent with teacher requirements do not apply to develop a specific enforcement system § 300.156. teachers hired by private elementary to ensure that teachers meet the highly OESE and OSEP will share their data schools and secondary schools. This qualified standard. A few commenters to ensure that the highly qualified includes teachers hired by private recommended changing the rule of teacher requirements under the ESEA elementary schools and secondary construction so that States meet their and the Act are met. This sharing of schools who teach children with supervisory responsibilities under the information will also prevent schools disabilities. Consistent with this Act if LEAs in the State are sanctioned from being punished twice for the same position and in light of comments under the ESEA for not having highly infraction. received regarding the requirements for qualified teachers. Changes: None. private school teachers providing Some commenters recommended equitable services for parentally-placed Teachers Hired by Private Elementary clarifying that when the SEA or LEA private school children with disabilities and Secondary Schools (New employs an individual who is not under § 300.138, we will add language § 300.18(h)) (Proposed § 300.18(g)) highly qualified, States meet their to new § 300.18(h) (proposed responsibilities for general supervision Comment: Some commenters agreed § 300.18(g)) to clarify that the highly under the Act through the notice and with new § 300.18(h) (proposed qualified special education teacher other sanction procedures identified § 300.18(g)), which states that the highly requirements also do not apply to under the ESEA. qualified special education teacher private school teachers who provide One commenter stated that the requirements do not apply to teachers equitable services to parentally-placed regulations are silent with regard to SEA hired by private elementary schools and private school children with disabilities actions when meeting the general secondary schools. However, many under § 300.138. supervision requirements under the Act, commenters disagreed, stating that Changes: We have added language in and noted that unless the regulations are children placed by an LEA in a private new § 300.18(h) (proposed § 300.18(g)) expanded to clarify that SEA school are entitled to receive the same to clarify that the highly qualified enforcement procedures under high quality instruction as special special education teacher requirements compliance monitoring are limited to education children in public schools. A also do not apply to private school ESEA enforcement procedures, the few commenters stated that LEAs will teachers who provide equitable services highly qualified teacher requirements of place children in private schools to to parentally-placed private school an individual teacher may avoid hiring highly qualified teachers. children with disabilities under inappropriately become the target for a Some commenters stated that public § 300.138. finding of noncompliance. This funds should not be used for any school commenter further stated that the ESEA that is not held to the same high Homeless Children (§ 300.19) contains specific procedures for failure standards as public schools. Other Comment: Several commenters of a district to comply with the highly commenters stated that children with requested adding the definition of qualified teacher provisions, and if the the most significant disabilities who are homeless children in the regulations so SEA also exercises sanctioning authority placed in private schools are children that it is readily accessible to parents, under the Act, schools could be with the most need for highly qualified advocates, and educators. punished twice under two separate teachers. A few commenters stated that Discussion: The term homeless provisions of Federal law for the same this provision is contrary to the intent children is defined in the McKinney- infraction. The commenter of the ESEA and the Act to support the Vento Homeless Assistance Act. For the recommended that to avoid double educational achievement of children reasons set forth earlier in this notice, jeopardy the regulations should clarify with disabilities. Other commenters we are not adding the definitions of that the ESEA enforcement procedures stated that if instruction by a highly other statutes to these regulations. for a district’s failure to hire a highly qualified teacher is a hallmark of FAPE, However, we will include the current qualified teacher follow the provisions it should be an element of FAPE in any definition of homeless children in of the ESEA, not the Act. educational setting in which the child is section 725 (42 U.S.C. 11434a) of the Discussion: The implementation and enrolled by a public agency. McKinney-Vento Homeless Assistance enforcement of the highly qualified A few commenters recommended that Act, as amended, 42 U.S.C. 11431 et seq. teacher standards under the ESEA and States have the discretion to determine (McKinney-Vento Act) here forsroberts on PROD1PC70 with RULES the Act complement each other. The whether and to what extent the highly reference. Office of Elementary and Secondary qualified teacher requirements apply to The term homeless children and Education (OESE) currently monitors teachers who teach publicly-placed and youths— the implementation of the highly parentally-placed children with (A) means individuals who lack a qualified teacher standards for teachers disabilities. The commenters stated that fixed, regular, and adequate nighttime VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46563 residence (within the meaning of Changes: None. provision of services by including State section 103(a)(1)); and Indian tribes in the definition. Another (B) includes— Indian and Indian Tribe (§ 300.21) commenter stated that including State (i) children and youths who are Comment: One commenter expressed Indian tribes in the definition of Indian sharing the housing of other persons support for combining and moving the and Indian tribe implies that children of due to loss of housing, economic definition of Indian and Indian tribe State-recognized tribes are considered hardship, or a similar reason; are living from current § 300.264 to the definitions differently than other children. in motels, hotels, trailer parks, or section of these regulations because the Discussion: As noted in the camping grounds due to the lack of term is applicable in instances not discussion responding to the previous alternative adequate accommodations; related to BIA schools. However, comment, the list of Indian entities are living in emergency or transitional another commenter stated that the recognized as eligible to receive services shelters; are abandoned in hospitals; or definition was unnecessary because the from the United States is published in are awaiting foster care placement; purpose of the Act is to ensure that the Federal Register, pursuant to (ii) children and youths who have a every child has FAPE. Section 104 of the Federally Recognized primary nighttime residence that is a Discussion: The definitions of Indian Indian Tribe List Act of 1994, 25 U.S.C. public or private place not designed for and Indian tribe are included in 479a–1. The Federal government does or ordinarily used as a regular sleeping sections 602(12) and (13) of the Act, not maintain a list of other State Indian accommodation for human beings respectively, and are, therefore, tribes. Including State Indian tribes that (within the meaning of section included in subpart A of these are not federally recognized in the 103(a)(2)(C)); regulations. Subpart A includes definition does not affect who is (iii) children and youths who are definitions for those terms and phrases responsible under the Act for the living in cars, parks, public spaces, about which we are frequently asked provision of services to children with abandoned buildings, substandard and which we believe will assist SEAs disabilities who are members of State housing, bus or train stations, or similar and LEAs in implementing the Indian tribes. Under section 611(h)(1) of settings; and requirements of the Act. Including the the Act, the Secretary of the Interior is (iv) migratory children (as such term definitions of Indian and Indian tribe in responsible for providing special is defined in section 1309 of the the definitions section does not in any education and related services to Elementary and Secondary Education way affect the provision of FAPE to all children age 5 through 21 with Act of 1965) who qualify as homeless eligible children under the Act. disabilities on reservations who are for the purposes of this subtitle because Changes: None. enrolled in elementary schools and the children are living in circumstances Comment: One commenter requested secondary schools for Indian children described in clauses (i) through (iii). omitting ‘‘State Indian tribes’’ that are operated or funded by the Secretary of Changes: None. not also federally-recognized tribes from the Interior. With respect to all other Comment: One commenter stated that the definition of Indian and Indian tribe children aged 3 through 21 on regulations are needed to address school stating that Federal recognition of an reservations, the SEA of the State in selection and enrollment provisions Indian tribe should be a predicate for which the reservation is located is under the McKinney-Vento Act. the tribe’s eligibility for Federal responsible for ensuring that all the Another commenter recommended that programs and services. One commenter requirements of Part B of the Act are the regulations include the McKinney- expressed concern that including ‘‘State implemented. Vento Act’s requirement that school Indian tribes’’ in the definition could Changes: None. stability for homeless children be imply that the Secretary of the Interior maintained during periods of residential is responsible for providing special Individualized Family Service Plan mobility and that homeless children education and related services or (§ 300.24) enrolled in new schools have the ability funding to all State Indian tribes. Comment: A few commenters to immediately attend classes and Discussion: Section 602(13) of the Act recommended including the entire participate in school activities. and § 300.21(b) define Indian tribe as definition of individualized family Discussion: We appreciate the ‘‘any Federal or State Indian tribe’’ and service plan in the regulations so that commenters’ concerns, but do not do not exclude State Indian tribes that parents and school personnel do not believe it is necessary to duplicate the are not federally-recognized tribes. We have to shift back and forth between requirements of the McKinney-Vento will add a new paragraph (c) to § 300.21 documents. Act in these regulations. We believe that clarifying that the definition of Indian Discussion: Adding the entire these issues, as well as other issues and Indian tribe is not intended to definition of individualized family regarding children with disabilities who indicate that the Secretary of Interior is service plan in section 636 of the Act, are homeless, would be more required to provide services or funding which includes information related to appropriately addressed in non- to a State Indian tribe that is not listed assessment and program development; regulatory guidance, in which more in the Federal Register list of Indian periodic review; promptness after detailed information and guidance can entities recognized as eligible to receive assessment; content of the plan; and be provided on how to implement the services from the United States, parental consent, would unnecessarily requirements of the Act and the published pursuant to Section 104 of add to the length of the regulations. McKinney-Vento Act to best meet the the Federally Recognized Indian Tribe However, the required content of the needs of homeless children with List Act of 1994, 25 U.S.C. 479a–1. IFSP in section 636(d) of the Act is disabilities. We will work with the Changes: A new paragraph (c) has added here for reference. Office of Elementary and Secondary been added to § 300.21 to provide this The individualized family service Education to provide guidance and clarification. plan shall be in writing and contain—sroberts on PROD1PC70 with RULES disseminate information to special Comment: One commenter stated that (1) A statement of the infant’s or education teachers and administrators it was unclear how many States have toddler’s present levels of physical regarding their responsibilities for defined Indian tribes that are not development, cognitive development, serving children with disabilities who defined by the Federal government and communication development, social or are homeless. asked what the effect would be on the emotional development, and adaptive VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46564 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations development, based on objective Changes: Section 300.25 has been compulsory school attendance in the criteria; revised to include the entire definition State in which the institution is located. (2) a statement of the family’s of infant or toddler with a disability Changes: None. resources, priorities, and concerns from section 632(5) of the Act. Comment: One commenter requested relating to enhancing the development that we add language to the regulations Institution of Higher Education that would allow Haskell and Sipi, of the family’s infant or toddler with a (§ 300.26) postsecondary programs under the disability; (3) a statement of the measurable Comment: One commenter Haskell Indian Nations University and results or outcomes expected to be recommended including the definition Southwestern Indian Polytechnic achieved for the infant or toddler and of institution of higher education in Institute Administrative Act of 1988, 25 the family, including pre-literacy and these regulations. U.S.C. 3731 et seq., to be included in the language skills, as developmentally Discussion: The term institution of definition of institution of higher appropriate for the child, and the higher education is defined in section education. criteria, procedures, and timelines used 101 of the Higher Education Act of Discussion: The Haskell and Sipi to determine the degree to which 1965, as amended, 20 U.S.C. 1021 et postsecondary programs under the progress toward achieving the results or seq. (HEA). For the reasons set forth Haskell Indian Nations University and outcomes is being made and whether earlier in this notice, we are not adding Southwestern Indian Polytechnic modifications or revisions of the results definitions from other statutes to these Institute Administrative Act of 1988, 25 or outcomes or services are necessary; regulations. However, we are including U.S.C. 3731 et seq. meet the statutory (4) a statement of specific early the current definition here for reference. definition of institution of higher intervention services based on peer- (a) Institution of higher education— education in section 602(17) of the Act reviewed research, to the extent For purposes of this Act, other than title because they meet the definition of the practicable, necessary to meet the IV, the term institution of higher term in section 101 of the HEA. The Act unique needs of the infant or toddler education means an educational does not include specific institutions in and the family, including the frequency, institution in any State that— the definition of institution of higher (1) Admits as regular students only education, nor do we believe it is intensity, and method of delivering persons having a certificate of necessary to add specific institutions to services; graduation from a school providing the definition in § 300.26. (5) a statement of the natural secondary education, or the recognized Changes: None. environments in which early equivalent of such a certificate; intervention services will appropriately (2) is legally authorized within such Limited English Proficient (§ 300.27) be provided, including a justification of State to provide a program of education Comment: One commenter requested the extent, if any, to which the services beyond secondary education; specific information about bilingual will not be provided in a natural (3) provides an educational program qualified personnel and qualified environment; for which the institution awards a interpreters. Some commenters (6) the projected dates for initiation of bachelor’s degree or provides not less recommended including the definition services and the anticipated length, than a 2-year program that is acceptable of ‘‘limited English proficient’’ in the duration, and frequency of the services; for full credit toward such a degree; regulations. (7) the identification of the service (4) is a public or other nonprofit Discussion: Each State is responsible coordinator from the profession most institution; and for determining the qualifications of immediately relevant to the infant’s or (5) is accredited by a nationally bilingual personnel and interpreters for toddler’s or family’s needs (or who is recognized accrediting agency or children with limited English otherwise qualified to carry out all association, or if not so accredited, is an proficiency. applicable responsibilities under this institution that has been granted The term limited English proficient is part) who will be responsible for the preaccreditation status by such an defined in the ESEA. For the reasons set implementation of the plan and agency or association that has been forth earlier in this notice, we are not coordination with other agencies and recognized by the Secretary for the adding the definitions from other persons, including transition services; granting of preaccreditation status, and statutes to these regulations. However, and the Secretary has determined that there we will include the current definition in (8) the steps to be taken to support the is satisfactory assurance that the section 9101(25) of the ESEA here for transition of the toddler with a institution will meet the accreditation reference. disability to preschool or other standards of such an agency or The term limited English proficient appropriate services. association within a reasonable time. when used with respect to an Changes: None. (b) Additional Institutions Included— individual, means an individual— Infant or Toddler With a Disability For purposes of this Act, other than title (A) Who is aged 3 through 21; (§ 300.25) IV, the term institution of higher (B) Who is enrolled or preparing to education also includes— enroll in an elementary school or Comment: A few commenters (1) Any school that provides not less secondary school; recommended including the entire than a 1-year program of training to (C)(i) who was not born in the United definition of infant or toddler with a prepare students for gainful States or whose native language is a disability in the regulations so that employment in a recognized occupation language other than English; parents and school personnel do not and that meets the provision of (ii)(I) who is a Native American or have to shift back and forth between paragraphs (1), (2), (4), and (5) of Alaska Native, or a native resident of the documents. subsection (a); and outlying areas; andsroberts on PROD1PC70 with RULES Discussion: We agree with the (2) a public or nonprofit private (II) who comes from an environment commenters and, therefore, will include educational institution in any State that, where a language other than English has the definition of infant or toddler with in lieu of the requirement in subsection had a significant impact on the a disability from section 632(5) of the (a)(1), admits as regular students individual’s level of English language Act in these regulations for reference. persons who are beyond the age of proficiency; or VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46565 (iii) who is migratory, whose native is established as an LEA under State communication). We believe this language is a language other than law.’’ language adequately addresses the English, and who comes from an Comment: One commenter stated that commenters’ concerns. environment where a language other § 300.28(c) is in error from a technical Changes: None. than English is dominant; and drafting perspective because it does not Parent (§ 300.30) (D) whose difficulties in speaking, follow the statutory language in section reading, writing, or understanding the 602(19)(C) of the Act. The commenter Comment: Several commenters English language may be sufficient to also suggested adding a definition of objected to the term ‘‘natural parent’’ in deny the individual— ‘‘BIA funded school,’’ rather than the definition of parent because (i) the ability to meet the State’s adding a new definition of LEA related ‘‘natural parent’’ presumes there are proficient level of achievement on State to BIA funded schools. ‘‘unnatural parents.’’ The commenters assessments described in section Discussion: We agree that § 300.28(c) recommended using ‘‘birth parent’’ or 1111(b)(3); does not accurately reflect the statutory ‘‘biological parent’’ throughout the (ii) the ability to successfully achieve language in section 602(19)(C) of the Act regulations. in classrooms where the language of and, as written, could be interpreted as Discussion: We understand that many instruction is English; or defining BIA funded schools. This was people find the term ‘‘natural parent’’ (iii) the opportunity to participate not our intent. Rather, the intent was to offensive. We will, therefore, use the fully in society. include ‘‘BIA funded schools’’ in the term ‘‘biological parent’’ to refer to a Changes: None. definition of LEA, consistent with non-adoptive parent. section 602(19)(C) of the Act. Changes: We have replaced the term Local Educational Agency (§ 300.28) In order to correct the technical ‘‘natural parent’’ with ‘‘biological Comment: One commenter suggested drafting error, we will change parent’’ in the definition of parent and revising § 300.28 to ensure that all § 300.28(c) to accurately reflect section throughout these regulations. responsibilities and rights attributed to 602(19)(C) of the Act. We decline to add Comment: A significant number of an LEA apply to an ESA. a definition of ‘‘BIA funded schools.’’ commenters recommended retaining the Discussion: We believe that the The Act does not define this term and language in current § 300.20(b), which provisions in § 300.12 and § 300.28 are the Department does not believe that it states that a foster parent can act as a clear that ESAs have full responsibilities is necessary to define the term. parent if the biological parent’s and rights as LEAs. We, therefore, Changes: In order to correct a authority to make educational decisions decline to revise § 300.28. technical drafting error, § 300.28(c) has on the child’s behalf have been Changes: None. been revised to be consistent with extinguished under State law, and the Comment: None. statutory language. foster parent has an ongoing, long-term Discussion: Through its review of parental relationship with the child; is charter schools’ access to Federal Native Language (§ 300.29) willing to make the educational funding, it has come to the Department’s Comment: A few commenters decisions required of parents under the attention that additional guidance is expressed support for retaining the Act; and has no interest that would needed regarding whether charter definition of native language, stating conflict with the interest of the child. schools that are established as their own that it is important to clarify that sign A few commenters stated that current LEAs must be nonprofit entities in order language is the native language of many § 300.20(b) better protects children’s to meet the definition of LEA in children who are deaf. One commenter interests and should not be removed. § 300.28. The definition of LEA in stated it is important to clarify that the Another commenter stated that § 300.28(b)(2) specifically includes a language normally used by the child removing current § 300.20 will have public charter school that is established may be different than the language unintended consequences for the many as an LEA under State law and that normally used by the parents. Another foster children who move frequently to exercises administrative control or commenter stated that the definition of new homes because there will be direction of, or performs a service native language does not adequately confusion as to who has parental rights function for, itself. For purposes of the cover individuals with unique language under the Act. A few commenters stated Act, the definitions of charter school, and communication techniques such as that short-term foster parents may not elementary school, and secondary deafness or blindness or children with have the knowledge of the child or the school in §§ 300.7, 300.13, and 300.36, no written language. willingness to actively participate in the respectively, require that a public Discussion: The definition of native special education process, which will elementary or secondary charter school language was expanded in the 1999 effectively leave the child without a be a nonprofit entity. Therefore, a public regulations to ensure that the full range parent. elementary or secondary charter school of needs of children with disabilities One commenter stated that § 300.30 established as its own LEA under State whose native language is other than needs to be changed to protect law, also must be a nonprofit entity. English is appropriately addressed. The biological and adoptive parents from Although these regulations do not definition clarifies that in all direct arbitrary decisions by educational specifically define nonprofit, the contact with the child (including an officials who lack the legal authority to definition in 34 CFR § 77.1 applies to evaluation of the child), native language make educational decisions for the child these regulations. In order to eliminate means the language normally used by and to ensure that when no biological or any confusion on this issue, we will the child and not that of the parents, if adoptive parent is available, a person revise the definition of LEA to reflect there is a difference between the two. with a long-term relationship with, and that a public elementary or secondary The definition also clarifies that for commitment to, the child has decision- charter school that is established as its individuals with deafness or blindness, making authority.sroberts on PROD1PC70 with RULES own LEA under State law must be a or for individuals with no written Discussion: Congress changed the nonprofit entity. language, the native language is the definition of parent in the Act. The Changes: For clarity, we have revised mode of communication that is definition of parent in these regulations § 300.28(b)(2) by inserting the term normally used by the individual (such reflects the revised statutory definition ‘‘nonprofit’’ before ‘‘charter school that as sign language, Braille, or oral of parent in section 602(23) of the Act. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46566 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations The Department understands the regulations or in contractual agreements youth (and thus prohibited from serving concerns expressed by the commenters, between a State or local entity and a as a surrogate parent), provided that but believes that the changes requested foster parent, and should be accorded such a role is temporary until a would not be consistent with the intent similar deference. We believe it is surrogate parent can be appointed who of the statutory changes. In changing the essential for LEAs to have knowledge of meets the requirements for a surrogate definition of parent in the Act, Congress State laws, regulations, and any parent in § 300.519(d). This provision is incorporated some of the wording from contractual agreements between a State included in § 300.519(f), regarding the current regulations and did not or local entity and a foster parent to surrogate parents. Therefore, we do not incorporate in the new definition of ensure that the requirements in believe it is necessary to add parent, the current foster parent § 300.30(a)(2) are properly ‘‘temporary parent’’ to the definition of language referenced by the commenters. implemented. States and LEAs should parent in § 300.30. Changes: None. develop procedures to make this Changes: None. Comment: One commenter information more readily and easily Comment: A few commenters stated recommended allowing a foster parent available so that LEAs do not have to that the definition of parent is who does not have a long-term engage in extensive fact finding each confusing, especially in light of the relationship to be the parent, if a court, time a child with a foster parent enrolls definition of ward of the State in new after notifying all interested parties, in a school. § 300.45 (proposed § 300.44) and the determines that it is in the best interest Changes: None. LEA’s obligation to appoint a surrogate of the child. Comment: One commenter stated that parent. These commenters stated that Discussion: Section 300.30(b)(2) the regulations need to clarify that § 300.30 should cross-reference the clearly states that if a person is specified guardians ad litem do not meet the definition of ward of the State in new in a judicial order or decree to act as the definition of a parent except for wards § 300.45 (proposed § 300.44) and state parent for purposes of § 300.30, that of the State where consent for the initial that the appointed surrogate parent for person would be considered the parent evaluation has been given by an a child who is a ward of the State is the under Part B of the Act. individual appointed by the judge to parent. Changes: None. represent the child in the educational Discussion: Section 615(b)(2) of the Comment: One commenter stated that decisions concerning the child. Act does not require the automatic § 300.30(a)(2) withdraws the rights of Discussion: We agree that guardians appointment of a surrogate parent for biological parents under the Act without with limited appointments that do not every child with a disability who is a due process of law. qualify them to act as a parent of the ward of the State. States and LEAs must Discussion: We do not agree with the child generally, or do not authorize ensure that the rights of these children commenter. If more than one person is them to make educational decisions for are protected and that a surrogate parent attempting to act as a parent, the child, should not be considered to is appointed, if necessary, as provided § 300.30(b)(1) provides that the be a parent within the meaning of these in § 300.519(b)(1). If a child who is a biological or adoptive parent is regulations. What is important is the ward of the State already has a person presumed to be the parent if that person legal authority granted to individuals who meets the definition of parent in is attempting to act as the parent under appointed by a court, and not the term § 300.30, and that person is willing and § 300.30, unless the biological or used to identify them. Whether a person able to assume the responsibilities of a adoptive parent does not have legal appointed as a guardian ad litem has the parent under the Act, a surrogate parent authority to make educational decisions requisite authority to be considered a might not be needed. Accordingly, we for the child, or there is a judicial order parent under this section depends on do not believe it is necessary to make or decree specifying some other person State law and the nature of the person’s the changes suggested by the to act as a parent under Part B of the appointment. We will revise commenters. Act. We do not believe that provisions § 300.30(a)(3) to clarify that a guardian Changes: None. regarding lack of legal authority or must be authorized to act as the child’s Comment: One commenter expressed judicial orders or decrees would apply parent generally or must be authorized concern that public agencies will unless there has already been a to make educational decisions for the require biological or adoptive parents to determination, through appropriate child in order to fall within the affirmatively assert their rights or to take legal processes, that the biological definition of parent. action in order to be presumed to be the parent should not make educational Changes: We have added language in parent. The commenter requested decisions for the child or that another § 300.30(a)(3) to clarify when a guardian clarifying in § 300.30(b)(1) that person has been ordered to serve as the can be considered a parent under the biological or adoptive parents do not parent. Act. have to take affirmative steps in order Changes: None. Comment: One commenter requested for the presumption to apply. Comment: One commenter stated that adding a ‘‘temporary parent’’ appointed Discussion: The biological or adoptive § 300.30(a)(2) is unwieldy and difficult in accordance with sections 615(b)(2) or parent would be presumed to be the to implement because it requires 639(a)(5) of the Act to the definition of parent under these regulations, unless a extensive fact finding by the LEA to parent. question was raised about their legal determine whether any contractual Discussion: There is nothing in the authority. There is nothing in the Act obligations would prohibit the foster Act that would prevent a temporary that requires the biological or adoptive parent from acting as a parent. surrogate parent from having all the parent to affirmatively assert their rights Discussion: The statutory language rights of a parent. Note 89 of the Conf. to be presumed to be the parent. We concerning the definition of parent was Rpt., p. 35810, provides that appropriate continue to believe that § 300.30(b)(1) is changed to permit foster parents to be staff members of emergency shelters, clear and, therefore, will not make thesroberts on PROD1PC70 with RULES considered a child’s parent, unless State transitional shelters, independent living changes requested by the commenters. law prohibits a foster parent from programs, and street outreach programs Changes: None. serving as a parent. The language in the would not be considered to be Comment: Some commenters regulations also recognizes that similar employees of agencies involved in the recommended removing ‘‘when restrictions may exist in State education or care of unaccompanied attempting to act as a parent under this VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46567 part’’ in § 300.30(b)(1). A few It recognizes the priority of the would be determined to be the parent. commenters stated that there is no biological or adoptive parent and the It was intended to add clarity about who explanation of what it means for a authority of the courts to make would be designated a parent when biological parent to ‘‘attempt to act as a decisions, and does not leave these there are competing individuals under parent.’’ Another commenter stated that decisions to school administrators. § 300.30(a)(1) through (4) who could be the regulations do not set any guidelines The phrase ‘‘attempting to act as a considered a parent for purposes of this for determining how a public agency parent’’ is generally meant to refer to part. It is not necessary to specify or decides if a biological or adoptive situations in which an individual limit this language to provide that the parent is attempting to act as a parent. attempts to assume the responsibilities judicial decree or order applies to One commenter stated ‘‘attempting to of a parent under the Act. An individual specific situations, such as divorce or act’’ would require LEAs to make may ‘‘attempt to act as a parent’’ under custody cases. However, it should not determinations about a biological the Act in many situations; for example, authorize courts to appoint individuals parent’s decision-making authority and if an individual provides consent for an other than those identified in this should be left up to courts to evaluation or reevaluation, or attends an § 300.30(a)(1) through (4) to act as determine. One commenter stated that IEP Team meeting as the child’s parent. parents under this part. Specific the regulations permit multiple persons We do not believe it is necessary or authority for court appointment of to act as a child’s parent and do not possible to include in these regulations individuals to provide consent for adequately set forth a process to the numerous situations in which an initial evaluations in limited determine who should be identified as individual may ‘‘attempt to act as a circumstances is in § 300.300(a)(2)(c). the actual parent for decision-making parent.’’ Authority for court appointment of a purposes. The commenter further stated Section 300.30(b)(1) provides that the surrogate parent in certain situations is that the regulations do not set out a biological or adoptive parent is in § 300.519(c). procedure or a timeframe by which presumed to be the parent if that person Changes: We have revised public agency officials should is attempting to act as the parent under § 300.30(b)(2) to limit its application to determine if a biological parent has § 300.30, unless the biological or individuals identified under retained the right to make educational adoptive parent does not have legal § 300.30(a)(1) through (4) and have decisions for his or her child. authority to make educational decisions deleted the phrase ‘‘except that a public One commenter stated that the for the child, or there is a judicial order agency that provides education or care definition of parent gives school or decree specifying some other person for the child may not act as the parent’’ districts excessive power; for example a to act as a parent under Part B of the as unnecessary. school could appoint a surrogate parent Act. Section 300.30(b)(2) provides that if Comment: One commenter if the foster parent was excessively a person (or persons) is specified in a recommended allowing foster parents to demanding. The commenter further judicial order or decree to act as the act as parents only when the birth stated that a clearer order of priority and parent for purposes of § 300.30, that parent’s rights have been extinguished selection mechanism with judicial person would be the parent under Part or terminated. A few commenters oversight needs to be in place so that B of the Act. We do not believe that it requested that the regulations clarify the school districts cannot ‘‘parent shop’’ is necessary for these regulations to circumstances under which a foster for the least assertive individual, and so establish procedures or a timeline for a parent can take over educational that relatives, foster parents, social public agency to determine whether a decision making. One commenter stated workers, and others involved with the biological parent has retained the right that allowing a foster parent to act as a child will know who has educational to make educational decisions for a parent would disrupt the special decision making authority. child. Such procedures and timelines education process. One commenter questioned whether will vary depending on how judicial Discussion: Under § 300.30(a)(2), a § 300.30(b) helps identify parents or orders or decrees are routinely handled foster parent can be considered a parent, confuses situations in which the person in a State or locality, and are best left unless State law, regulations, or to be designated the parent is in dispute. to State and local officials to determine. contractual obligations with a State or Another commenter stated that the Changes: None. local entity prohibit a foster parent from requirements in § 300.30(b) place the Comment: A few commenters acting as a parent. However, in cases responsibility of determining who recommended modifying § 300.30(b)(2) where a foster parent and a biological or serves as the parent of a child in foster to clarify that a court has the discretion adoptive parent attempt to act as the care directly on the shoulders of school to decide who has the right to make parent, § 300.30(b)(1) clarifies that the administrators who are not child educational decisions for a child. One biological or adoptive parent is welfare experts. The commenter commenter recommended clarifying presumed to be the parent, unless the recommended that a foster parent that the judicial decree referred to in biological or adoptive parent does not automatically qualify as a parent when § 300.30(b)(2) relates specifically to have legal authority to make educational the rights of the child’s biological divorce situations, rather than situations decisions for the child. Section parents have been extinguished and the involving children who are wards of the 300.30(b)(2) further clarifies that if a foster parent has a long-term State. Another commenter stated that person or persons such as a foster parent relationship with the child, no conflict § 300.30(b)(2) appears to be aimed at or foster parents is specified in a of interest, and is willing to make situations where the court has judicial order or decree to act as the educational decisions. designated a parent, such as in a parent for purposes of § 300.30, that Discussion: Section 300.30(b) was custody decree, and that it is not clear person would be the parent under Part added to assist schools and public what the provision adds. B of the Act. We do not believe that agencies in determining the appropriate Discussion: Section 300.30(b)(2) further clarification is necessary.sroberts on PROD1PC70 with RULES person to serve as the parent under Part specifically states that if a judicial Changes: None. B of the Act in those difficult situations decree or order identifies a person or Comment: A few commenters in which more than one individual is persons to act as the parent of a child recommended that ‘‘extinguished under ‘‘attempting to act as a parent’’ and or to make educational decisions on State law’’ be defined to mean both make educational decisions for a child. behalf of a child, then that person temporary and permanent termination VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46568 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations of parental rights to make educational foster parent when a child is in foster apply to both parents, unless a court decisions because this would allow care and the foster parent is not order or State law specifies otherwise. courts to make more timely decisions prohibited by the State from acting as a Changes: None. regarding the role of a parent and not parent. Comment: A few commenters feel bound to wait for a full termination Discussion: Section 300.30(b)(1) states recommended clarifying in the of parental rights. that when more than one party is regulations that a private agency that Discussion: The phrase ‘‘extinguished qualified under § 300.30(a) to act as the contracts with a public agency for the under State law’’ is not used in the Act parent, the biological or adoptive parent education or care of the child may not or these regulations. The phrase was is presumed to be the parent (unless a act as a parent. used in the definition of parent in judicial decree or order identifies a Discussion: A private agency that current § 300.20(b)(1). The comparable specific person or persons to act as the contracts with a public agency for the provision in these regulations is in parent of a child). The biological or education or care of the child, in § 300.30(b)(1), which refers to situations adoptive parent has all the rights and essence, works for the public agency, in which the ‘‘biological or adoptive responsibilities of a parent under the and therefore, could not act as a parent parent does not have legal authority to Act, and the LEA must provide notice under the Act. We do not believe it is make educational decisions for the to the parent, accommodate his or her necessary to regulate on this matter. child.’’ We do not believe that either of schedule when arranging meetings, and Changes: None. these phrases affects the timeliness of involve the biological or adoptive parent Parent Training and Information Center decision making by courts regarding in the education of the child with a (§ 300.31) parental rights. disability. Thus, if a child is in foster Changes: None. care (and the foster parent is not Comment: One commenter requested Comment: Some commenters stated prohibited by the State from acting as a describing a parent training and that ‘‘consistent with State law’’ should parent) and the biological or adoptive information center (PTI) and a be included in § 300.30(b)(2) in order to parent is attempting to act as a parent, community parent resource center honor local laws already in place to the biological or adoptive parent is (CPRC) in the regulations, rather than protect these children. presumed to be the parent unless the referencing section 671 or 672 of the Discussion: We do not believe the biological or adoptive parent does not Act. change recommended by the have legal authority to make educational Discussion: We do not believe it is commenters is necessary. Courts issue decisions for the child or a judicial necessary to include these descriptions decrees and orders consistent with decree or order identifies a specific in the regulations. Section 671 of the applicable laws. person or persons to act as the parent of Act describes the program requirements Changes: None. a child. for a PTI and section 672 of the Act Comment: One commenter stated that Changes: None. describes the program requirements for it would not be wise to completely Comment: A few commenters stated a CPRC. These sections describe the exclude an agency involved in the that it is unclear when or under what activities required of PTIs and CPRCs, as education or care of the child from circumstances a biological or adoptive well as the application process for serving as a parent because situations in parent ceases or surrenders their rights discretionary funding under Part D of which an LEA acts as a parent are very to a foster parent to make educational the Act, and would unnecessarily add to rare and only occur under very unusual decisions for a child. One commenter the length of the regulations. circumstances. stated that the regulations should define Changes: None. Discussion: The exclusion of an clearly the situations when this would Comment: One commenter stated that, agency involved in the education or care occur and the level of proof that must in order for a State or LEA to be of the child from serving as a parent is be shown by the party seeking to make considered for funding under the Act, consistent with the statutory prohibition educational decisions on behalf of a the regulations should require that applies to surrogate parents in child. The commenter stated that only partnerships with the PTIs and the sections 615(b)(2) and 639(a)(5) of the under the most extreme and compelling CPRCs, as well as input from PTIs and Act. circumstances should a court be able to CPRCs on assessing State and local Changes: None. appoint another individual to take the needs, and developing and Comment: One commenter place of a biological or adoptive parent. implementing a plan to address State recommended that the regulations Discussion: It would be inappropriate and local needs. clarify the responsibilities of the LEA and beyond the authority of the Discussion: We disagree with the when a biological or adoptive parent Department to regulate on the commenter. There is nothing in the Act and a foster parent attempt to act as the termination of parental rights to make that requires States or LEAs, as a parent. Although the regulations state educational decisions. It is the condition of funding, to obtain input that the biological or adoptive parent responsibility of a court to decide from PTIs and CPRCs in assessing needs must be presumed to be the parent whether to appoint another person or or developing and implementing a plan unless the biological or adoptive parent persons to act as a parent of a child or to address State or local needs. States has been divested of this authority by a to make educational decisions on behalf and LEAs are free to do so, but it is not court, the commenter stated that the of a child. a requirement for funding. regulations are not clear as to whether Changes: None. Changes: None. the LEA has the duty to notify the Comment: One commenter requested biological or adoptive parent, clarifying to whom LEAs must provide Public Agency (§ 300.33) accommodate his or her schedule, or notice, or obtain consent in situations Comment: One commenter stated that otherwise take steps to facilitate the where there are disputes between the term public agency is not in the Actsroberts on PROD1PC70 with RULES biological or adoptive parent’s biological or adoptive parents (e.g., and noted that no State has created a participation. when parents separate or divorce). new type of public education agency One commenter recommended Discussion: In situations where the beyond LEAs and SEAs. The commenter clarifying the relative rights of a parents of a child are divorced, the stated that including the definition of biological or adoptive parent and a parental rights established by the Act public agency in the regulations, VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46569 therefore, raises concerns regarding the number of commenters recommended types of specialists also often provide responsibility and authority for future adding art, music, and dance therapy. them. special education services. One commenter recommended adding Discussion: The list of related services Discussion: The definition of public services to ensure that medical devices, in § 300.34 is consistent with section agency refers to all agencies responsible such as those used for breathing, 602(26) of the Act and, as noted above, for various activities under the Act. The nutrition, and other bodily functions, we do not believe it is necessary to add terms ‘‘LEA’’ or ‘‘SEA’’ are used when are working properly. One commenter additional related services to this list. referring to a subset of public agencies. requested adding programming and We agree with the commenter that there We disagree that the definition raises training for parents and staff as a related may be many professionals in a school concerns about the responsibility and service. district who are involved in the authority for future educational services A few commenters requested development of positive behavioral because the term public agency is used clarification on whether auditory interventions. Including the only for those situations in which a training and aural habilitation are development of positive behavioral particular regulation does not apply related services. One commenter asked interventions in the description of only to SEAs and LEAs. whether hippotherapy should be activities under psychological services During our internal review of the included as a related service. Other (§ 300.34(b)(10)) and social work NPRM, we found several errors in the commenters recommended adding services in schools (§ 300.34(b)(14)) is definition of public agency. Our intent language in the regulations stating that not intended to imply that school was to use the same language in current the list of related services is not psychologists and social workers are § 300.22. We will, therefore, correct exhaustive. A few commenters asked automatically qualified to perform these these errors to be consistent with whether a service is prohibited if it is services or to prohibit other qualified current § 300.22. Additionally, we will not listed in the definition of related personnel from providing these services, clarify that a charter school must be a services. consistent with State requirements. nonprofit charter school. As noted in Discussion: Section 300.34(a) and Changes: None. the discussion regarding § 300.28(b)(2), section 602(26) of the Act state that Exception; Services That Apply to we clarified that a charter school related services include other Children With Cochlear Implants established as its own LEA under State supportive services that are required to (§ 300.34(b)) law, must be a nonprofit charter school. assist a child with a disability to benefit from special education. We believe this Comment: Many commenters opposed Changes: We have removed the clearly conveys that the list of services the exclusion of surgically implanted phrase ‘‘otherwise included as’’ the devices from the definition of related second time it appears, and replaced it in § 300.34 is not exhaustive and may include other developmental, corrective, services. Many commenters stated that with ‘‘a school of an’’ in § 300.33. We the Act does not exclude the have also changed ‘‘LEAs’’ to ‘‘LEA’’ or supportive services if they are required to assist a child with a maintenance or programming of and ‘‘ESAs’’ to ‘‘ESA’’ the third time surgically implanted devices from the these abbreviations appear in § 300.33. disability to benefit from special education. It would be impractical to definition of related services, and that Related Services (§ 300.34) list every service that could be a related the regulations should specifically state service, and therefore, no additional that related services includes the Related Services, General (§ 300.34(a)) language will be added to the provision of mapping services for a Comment: One commenter requested regulations. child with a cochlear implant. A few defining related services as enabling a Consistent with §§ 300.320 through commenters stated that the issue of child with a disability to receive FAPE 300.328, each child’s IEP Team, which mapping cochlear implants needs to be in the LRE. includes the child’s parent along with clarified so that schools and parents Discussion: The definition of related school officials, determines the understand who is responsible for services is consistent with section instruction and services that are needed providing this service. One commenter 601(26) of the Act, which does not refer for an individual child to receive FAPE. requested that the regulations clearly to LRE. The Department believes that In all cases concerning related services, specify that optimization of a cochlear revising the regulations as requested the IEP Team’s determination about implant is a medical service and define would inappropriately expand the appropriate services must be reflected in mapping as an audiological service. definition in the Act. Furthermore, the the child’s IEP, and those listed services Discussion: The term ‘‘mapping’’ regulations in § 300.114(a)(2)(ii) already must be provided in accordance with refers to the optimization of a cochlear prevent placement of a child outside the the IEP at public expense and at no cost implant and is not included in the regular education environment unless to the parents. Nothing in the Act or in definition of related services. the child cannot be satisfactorily the definition of related services Specifically, ‘‘mapping’’ and educated in the regular education requires the provision of a related ‘‘optimization’’ refer to adjusting the environment with the use of service to a child unless the child’s IEP electrical stimulation levels provided by supplementary aids and services. Team has determined that the related the cochlear implant that is necessary Therefore, we see no need to make the service is required in order for the child for long-term post-surgical follow-up of change suggested by the commenter. to benefit from special education and a cochlear implant. Although the Changes: None. has included that service in the child’s cochlear implant must be properly Comment: We received numerous IEP. mapped in order for the child to hear requests to revise § 300.34 to add Changes: None. well in school, the mapping does not specific services in the definition of Comment: One commenter have to be done in school or during the related services. A few commenters recommended adding behavior school day in order for it to be effective.sroberts on PROD1PC70 with RULES recommended including marriage and interventions to the list of related The exclusion of mapping from the family therapy. One commenter services, stating that while positive definition of related services reflects the recommended adding nutrition therapy behavioral interventions and supports language in Senate Report (S. Rpt.) No. and another commenter recommended are often provided by one of the 108–185, p. 8, which states that the adding recreation therapy. A significant professionals listed in § 300.34(c), other Senate committee did not intend that VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46570 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations mapping a cochlear implant, or even the mapping as a related service preclude a device, make certain that it is turned on, costs associated with mapping, such as child with a cochlear implant from or help the child to learn to listen with transportation costs and insurance co- receiving the related services (e.g., the cochlear implant. One commenter payments, be the responsibility of a speech and language services) that are stated that children with cochlear school district. These services and costs necessary for the child to benefit from implants should have the same services are incidental to a particular course of special education services. As the as children who use a hearing aid when treatment chosen by the child’s parents commenters point out, a child with a the battery needs changing or to maximize the child’s functioning, and cochlear implant may still require equipment breaks down. are not necessary to ensure that the related services, such as speech and One commenter stated that § 300.34(b) child is provided access to education, language therapy, to process spoken is confusing and should explicitly state regardless of the child’s disability, language just as other children with that the exception of the optimization of including maintaining health and safety hearing loss who use hearing aids may device functioning, maintenance of the while in school. We will add language need those services and are entitled to device, or replacement of the device is in § 300.34(b) to clarify that mapping a them under the Act if they are required limited to surgically implanted devices. cochlear implant is an example of for the child to benefit from special The commenter stated that the language device optimization and is not a related education. Each child’s IEP Team, could erroneously lead to an service under the Act. which includes the child’s parent along interpretation that this exception is Changes: We have added ‘‘(e.g., with school officials, determines the applicable to all medical devices. One mapping)’’ following ‘‘functioning’’ in related services, and the amount of commenter expressed concern that this § 300.34(b) to clarify that mapping a services, that are required for the child misinterpretation could put insulin surgically implanted device is not a to benefit from special education. It is pumps and other medical devices that related service under the Act. important that the regulations clearly are required for the health of the child Comment: A significant number of state that a child with a cochlear in the same category as cochlear commenters stated that children with implant or other surgically implanted implants. cochlear implants need instruction in medical device is entitled to related A few commenters stated that it is listening and language skills to process services that are determined by the important to clarify that excluding the spoken language, just as children with child’s IEP Team to be necessary for the optimization of device functioning and hearing loss who use hearing aids, and child to benefit from special education. the maintenance of the device should requested that the regulations clarify Therefore, we will add language in not be construed to exclude medical that excluding the optimization of § 300.34(b) to clarify that a child with a devices and services that children need device functioning from the definition cochlear implant or other surgically to assist with breathing, nutrition, and of related services does not impact a implanted medical device is entitled to other bodily functions while the child is child’s access to related services such as those related services that are required involved with education and other speech and language therapy, assistive for the child to benefit from special school-related activities. listening devices, appropriate classroom education, as determined by the child’s One commenter stated that a school acoustics, auditory training, educational IEP Team. nurse, aide, teacher’s aide, or any other interpreters, cued speech transliterators, Changes: We have reformatted person who is qualified and trained and specialized instruction. § 300.34(b) and added a new paragraph should be allowed to monitor and One commenter requested that the (2) to clarify that a child with a cochlear maintain, as necessary, a surgically regulations explicitly state whether a implant or other surgically implanted implanted device. public agency is required to provide device is entitled to the related services Discussion: A cochlear implant is an more speech and language services or that are determined by the child’s IEP electronic device surgically implanted audiology services to a child with a Team to be required for the child to to stimulate nerve endings in the inner cochlear implant. Another commenter benefit from special education. We have ear (cochlea) in order to receive and requested that the regulations clarify also added the phrase ‘‘services that process sound and speech. The device that optimization only refers to access to apply to children with surgically has two parts, one that is surgically assistive technology, such as assistive implanted devices, including cochlear implanted and attached to the skull and, listening devices (e.g., personal implants’ to the heading in § 300.34(b). the second, an externally worn speech frequency modulation (FM) systems) Comment: One commenter expressed processor that attaches to a port in the and monitoring and troubleshooting of concern that excluding the optimization implant. The internal device is intended the device function that is required of device functioning and maintenance to be permanent. under proper functioning of hearing of the device as related services will Optimization or ‘‘mapping’’ adjusts or aids. establish different standards for serving fine tunes the electrical stimulation Discussion: Optimization generally children with cochlear implants versus levels provided by the cochlear implant refers to the mapping necessary to make children who use hearing aids and other and is changed as a child learns to the cochlear implant work properly and external amplification devices, and discriminate signals to a finer degree. involves adjusting the electrical recommended clarifying that routine Optimization services are generally stimulation levels provided by the monitoring of cochlear implants and provided at a specialized clinic. As we cochlear implant. The exclusion of other surgically implanted devices to discussed previously regarding § 300.34, mapping as a related service is not ensure that they are functioning in a optimization services are not a covered intended to deny a child with a safe and effective manner is permitted service under the Act. However, a disability assistive technology (e.g., FM under the Act. public agency still has a role in system); proper classroom acoustical A few commenters stated that some providing services and supports to help modifications; educational support schools are interpreting the exclusion of children with cochlear implants.sroberts on PROD1PC70 with RULES services (e.g., educational interpreters); device optimization, functioning, and Particularly with younger children or or routine checking to determine if the maintenance to mean that they do not children who have recently obtained external component of a surgically have to help the child change a battery implants, teachers and related services implanted device is turned on and in the externally worn speech processor personnel frequently are the first to working. Neither does the exclusion of connected with the surgically implanted notice changes in the child’s perception VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46571 of sounds that the child may be missing. settings are correct, and the cable is Audiology (§ 300.34(c)(1)) This may manifest as a lack of attention connected, in much the same manner as Comment: One commenter stated that or understanding on the part of the they are taught to make sure a hearing the definition of audiology does not child or frustration in communicating. aid is properly functioning. To allow a reflect current audiology practice in The changes may indicate a need for child to sit in a classroom when the schools and recommended new remapping, and we would expect that child’s hearing aid or cochlear implant language to include services for children school personnel would communicate is not functioning is to effectively with auditory-related disorders, with the child’s parents about these exclude the child from receiving an issues. To the extent that adjustments to appropriate education. Therefore, we provision of comprehensive audiologic the devices are required, a specially believe it is important to clarify that a habilitation and rehabilitation services; trained professional would provide the public agency is responsible for the consultation and training of teachers remapping, which is not considered the routine checking of the external and other school staff; and involvement responsibility of the public agency. components of a surgically implanted in classroom acoustics. In many ways, there is no substantive device in much the same manner as a Discussion: The definition of difference between serving a child with public agency is responsible for the audiology is sufficiently broad to enable a cochlear implant in a school setting proper functioning of hearing aids. audiologists to be involved in the and serving a child with a hearing aid. The public agency also is responsible activities described by the commenter. The externally worn speech processor for providing services necessary to We do not believe it is necessary to connected with the surgically implanted maintain the health and safety of a child change the definition to add the specific device is similar to a hearing aid in that while the child is in school, with functions recommended by the it must be turned on and properly breathing, nutrition, and other bodily commenter. functioning in order for the child to functions (e.g., nursing services, Changes: None. benefit from his or her education. suctioning a tracheotomy, urinary Comment: A few commenters Parents of children with cochlear catheterization) if these services can be requested adding mapping services for a implants and parents of children with provided by someone who has been child with a cochlear implant to the hearing aids both frequently bring to trained to provide the service and are definition of audiology. school extra batteries, cords, and other not the type of services that can only be Discussion: For the reasons discussed parts for the hearing aids and externally provided by a licensed physician. previously in this section, § 300.34(b) worn speech processors connected with (Cedar Rapids Community School specifically excludes the optimization of the surgically-implanted devices, District v. Garret F., 526 U.S. 66 (1999)). a surgically implanted device from the especially for younger children. The Changes: We have added new definition of related services. This child also may need to be positioned so § 300.113 to cover the routine checking includes mapping of a cochlear implant. that he or she can directly see the of hearing aids and external components Changes: None. teacher at all times, or may need an FM of surgically implanted devices. The Comment: One commenter stated that amplification system such as an audio requirement for the routine checking of the definition of audiology appears to be loop. hearing aids has been removed from limited to children who are deaf or hard For services that are not necessary to proposed § 300.105 and included in of hearing, and recommended adding provide access to education by new § 300.113(a). The requirement for language to allow children without maintaining the health or safety of the routine checking of an external expressive speech to receive such child while in school, the distinguishing component of a surgically implanted services. factor between those services that are medical device has been added as new not covered under the Act, such as § 300.113(b). The requirements for Discussion: The term audiology, as mapping, and those that are covered, assistive technology devices and defined in § 300.34(c)(1), focuses on such as verifying that a cochlear implant services remain in § 300.105 and the identifying and serving children who is functioning properly, in large heading has been changed to reflect this are deaf or hard of hearing. It is not measure, is the level of expertise change. We have also included a necessary to add language in the required. The maintenance and reference to new § 300.113(b) in new regulations regarding children without monitoring of surgically implanted § 300.34(b)(2). expressive speech because the devices require the expertise of a Comment: A few commenters stated determining factor of whether audiology licensed physician or an individual that specialized cochlear implant services are appropriate for a child is with specialized technical expertise audiologists who are at implant centers whether the child may be deaf or hard beyond that typically available from or closely associated with them should of hearing, not whether a child has school personnel. On the other hand, program cochlear implants. One expressive speech. trained lay persons or nurses can commenter stated that, typically, school Changes: None. routinely check an externally worn audiologists and school personnel do Early Identification and Assessment of processor connected with a surgically not have the specialized experience to Disabilities (§ 300.34(c)(3)) implanted device to determine if the program cochlear implants. batteries are charged and the external Discussion: The personnel with the Comment: Some commenters noted processor is operating. (As discussed specific expertise or licensure required that ‘‘early identification and below, the Act does require public for the optimization (e.g., mapping) of assessment of disabilities’’ was removed agencies to provide those services that surgically implanted devices are from the list of related services in are otherwise related services and are decisions to be made within each State § 300.34(a). necessary to maintain a child’s health or based on applicable State statutes and Discussion: ‘‘Early identification and safety in school even if those services licensing requirements. Since mapping assessment of disabilities’’ wassroberts on PROD1PC70 with RULES require specialized training.) Teachers is not covered under the Act, personnel inadvertently omitted from the list of and related services providers can be standards for individuals who provide related services in § 300.34(a). taught to first check the externally worn mapping services are beyond the scope Changes: ‘‘Early identification and speech processor to make sure it is of these regulations. assessment’’ will be added to the list of turned on, the volume and sensitivity Changes: None. related services in § 300.34(a). VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46572 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations Interpreting Services (§ 300.34(c)(4)) Changes: We have added language to language pathology services, consistent § 300.34(c)(4)(i) to include sign language with § 300.34(c)(15). Comment: One commenter transliteration. Changes: None. recommended that the definition of Comment: A few commenters Comment: Some commenters interpreting services requires that such recommended changing the definition recommended including services be provided by a qualified of interpreting services to clarify that the communication access real-time interpreter who is able to effectively, need for interpreting services must be transcription (CART) services in the accurately, and impartially use any based on a child’s disability and not definition of interpreting services specialized vocabulary, both receptively degree of English proficiency. because these services are being used and expressively. A few commenters Discussion: The definition of with increasing frequency in strongly recommended requiring interpreting services clearly states that postsecondary education and interpreting services to be provided by interpreting services are used with employment settings, and familiarity qualified interpreters to ensure children who are deaf or hard of and experience with CART services may equivalent communication access and hearing. The nature and type of better prepare children who are deaf or effective communication with, and for, interpreting services required for hard of hearing to transition to higher children who are deaf or hard of children who are deaf or hard of hearing education and employment hearing. The commenter stated that and also limited in English proficiency environments. A few commenters stated personnel standards for interpreters are to be determined by reference to the that the definition of interpreting vary greatly across SEAs and LEAs, and Department’s regulations and policies services appears to limit interpreting requiring qualified interpreters would regarding students with limited English services to the methods listed in be consistent with the definition of proficiency. For example, the § 300.34(c)(4), which exclude tactile and other related services included in these Department’s regulations in 34 CFR part close vision interpreting for children regulations such as physical therapy 100, implementing Title VI of the Civil who are deaf-blind. and occupational therapy. Rights Act of 1964, 42 U.S.C. 2000d, Discussion: Although the definition of One commenter recommended require that recipients of Federal interpreting services is written broadly defining the function of an interpreter as financial assistance ensure meaningful to include other types of interpreting a person who facilitates communication access to their programs and activities services, we believe that it is important between children who are deaf or hard by students who are limited English to include in the definition services in of hearing, staff, and children, proficient, including those who are deaf which oral communications are regardless of the job title. or hard of hearing. The requirement to transcribed into real-time text. Discussion: Section 300.156, provide services to students who are Therefore, we are adding language to consistent with section 612(a)(14) of the limited English proficient and others is § 300.34(c)(4) to refer to transcription Act, clarifies that it is the responsibility also governed by various Department services and include several examples of each State to establish personnel policy memoranda including the of transcription systems used to provide qualifications to ensure that personnel September 27, 1991 memorandum, such services. necessary to carry out the purposes of ‘‘Department of Education Policy We also believe that it is important the Act are appropriately and Update on Schools’ Obligations Toward that the definition of interpreting adequately prepared and trained and National Origin Minority Students With services include services for children have the content knowledge and skills Limited English Proficiency’’; the who are deaf-blind. However, because to serve children with disabilities. It is December 3, 1985 guidance document, there are many types of interpreting not necessary to add more specific ‘‘The Office for Civil Rights’ Title VI services for children who are deaf-blind, functions of individuals providing Language Minority Compliance in addition to tactile and close vision interpreting services, as recommended Procedures’’; and the May 1970 interpreting services, we will add a by the commenters. States are memorandum to school districts, more general statement to include appropriately given the flexibility to ‘‘Identification of discrimination and interpreting services for children who determine the qualifications and Denial of Services on the Basis of are deaf-blind, rather than listing all the responsibilities of personnel, based on National Origin,’’ 35 FR 11595. These different methods that might be used for the needs of children with disabilities in documents are available at http:// children who are deaf-blind. the State. www.lep.gov. We do not believe Changes: We have restructured additional clarification is necessary. § 300.34(c)(4) and added ‘‘and Changes: None. Changes: None. transcription services such as Comment: A few commenters Comment: One commenter stated that communication real-time translation recommended including American sign the definition of interpreting services (CART), C-Print, and TypeWell’’ to the language and sign language systems in appears to be limited to children who definition of interpreting services in the definition of interpreting services. are deaf or hard of hearing, and paragraph (c)(4)(i). We have also added Discussion: The definition of recommended adding language to allow a new paragraph (c)(4)(ii) to include interpreting services is sufficiently children without expressive speech to interpreting services for children who broad to include American sign receive such services. are deaf-blind. language and sign language systems, Discussion: Interpreting services, as and therefore, will not be changed. We defined in § 300.34(c)(4), clearly states Medical Services (§ 300.34(c)(5)) believe it is important to include sign that interpreting services are used with Comment: One commenter stated that language transliteration (e.g., translation children who are deaf and hard of the definition of medical services is not systems such as Signed Exact English hearing. Therefore, a child who is not in the Act and recommended that the and Contact Signing), in addition to sign deaf or hard of hearing, but who is definition be broader than the decisionsroberts on PROD1PC70 with RULES language interpretation of another without expressive speech, would not in Cedar Rapids Community School language (e.g., American sign language) be considered eligible to receive Dist. v. Garrett F., 526 U.S. 66 (1999), in the definition of interpreting services, interpreting services as defined in which the definition appears to follow. and will add this language to § 300.34(c)(4). However, such a child Discussion: The list of related services § 300.34(c)(4)(i). could be considered eligible for speech- in § 300.34(a) includes medical services VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46573 for diagnostic and evaluation purposes, specify who is qualified to provide Changes: None. consistent with section 602(26) of the travel training instruction and stated Physical Therapy (§ 300.34(c)(9)) Act. The Department continues to that it is critical that skills such as street believe that using language from the Act crossing be taught correctly. Comment: One commenter to define medical services is essential. Discussion: Section 300.156, recommended the definition of physical Defining medical services more broadly, consistent with section 612(a)(14) of the therapy include related therapeutic as recommended by the commenter, Act, requires each State to establish services for children with degenerative would not be consistent with the Act. personnel qualifications to ensure that diseases. Changes: None. personnel necessary to carry out the Discussion: We do not believe the purposes of the Act are appropriately suggested change is necessary because Orientation and Mobility Services the definition of physical therapy is and adequately prepared and trained (§ 300.34(c)(7)) and have the content knowledge and broadly defined and could include Comment: Several commenters skills to serve children with disabilities. therapeutic services for children with supported including travel training in It is, therefore, the State’s responsibility degenerative diseases. It is the the definition of orientation and to determine the qualifications that are responsibility of the child’s IEP Team to mobility services and recommended necessary to provide travel training determine the special education and adding a reference to the definition of instruction. related services that are necessary for a travel training in new § 300.39(b)(4) Changes: None. child to receive FAPE. There is nothing (proposed § 300.38(b)(4)). However, in the Act that prohibits the provision other commenters stated that travel Parent Counseling and Training (§ 300.34(c)(8)) of therapeutic services for children with training should appear as a distinct degenerative diseases, if the IEP Team related service and should not be Comment: A few commenters stated determines they are needed for an included in the definition of orientation that the definition of parent counseling individual child and, thereby, includes and mobility services because children and training in § 300.34(c)(8) is not the services in the child’s IEP. who are blind and visually impaired included in the definition of related Changes: None. receive this type of instruction from services in section 602(26)(A) of the Act Comment: One commenter stated that certified orientation and mobility and, therefore, should not be included the definition of physical therapy in specialists. One commenter stated that in the regulations. § 300.34(c)(9) is circular and requested the regulations should specify that Discussion: Paragraphs (i) and (ii) of that a functional definition be provided. travel training is for children with § 300.34(c)(8), regarding assisting Discussion: The definition of physical cognitive or other disabilities. parents in understanding the special therapy has been in the regulations Discussion: We believe that including needs of their child, and providing since 1977 and is commonly accepted travel training in the definition of parents with information about child by SEAs, LEAs, and other public orientation and mobility services may be development, respectively, are protected agencies. We do not believe it is misinterpreted to mean that travel by section 607(b) of the Act, and cannot necessary to change the definition. training is available only for children be removed. Section 300.34(c)(8)(iii), Changes: None. who are blind or visually impaired or regarding helping parents acquire the that travel training is the same as skills to allow them to support the Psychological Services (§ 300.34(c)(10)) orientation and mobility services. We implementation of their child’s IEP or Comment: One commenter will, therefore, remove travel training IFSP, was added in the 1999 regulations recommended that the definition of from § 300.34(c)(7). This change, to recognize the more active role of psychological services include strategies however, does not diminish the services parents as participants in the education to facilitate social-emotional learning. that are available to children who are of their children. Although not included Discussion: We do not believe the blind or visually impaired. in the Act, we believe it is important to definition should be revised to add a Travel training is defined in new retain this provision in these regulations specific reference to the strategies § 300.39(b)(4) (proposed § 300.38(b)(4)) so that there is no question that parent recommended by the commenter. The for children with significant cognitive counseling and training includes definition of psychological services is disabilities and any other children with helping parents acquire skills that will sufficiently broad to enable disabilities who require this instruction, help them support the implementation psychologists to be involved in and, therefore, would be available for of their child’s IEP or IFSP. strategies to facilitate social-emotional children who are blind or visually Changes: None. learning. impaired, as determined by the child’s Comment: One commenter Changes: None. IEP Team. Travel training is not the recommended that the regulations Comment: One commenter stated that same as orientation and mobility describe the responsibility of LEAs to unless the definition of psychological services and is not intended to take the provide parent counseling and training. services includes research-based place of appropriate orientation and Discussion: As with other related counseling, schools will argue that they mobility services. services, an LEA only is responsible for are required to provide counseling Changes: We have removed ‘‘travel providing parent counseling and services delivered by social workers training instruction’’ from training if a child’s IEP Team because counseling is included in the § 300.34(c)(7)(ii) to avoid confusion determines that it is necessary for the definition of social work services in with the definition of travel training in child to receive FAPE. To include this schools. new § 300.39(b)(4) (proposed language in the definition of parent Discussion: We do not believe § 300.38(b)(4)), and to clarify that travel counseling and training, moreover, including research-based counseling in training is not the same as orientation would be unnecessarily duplicative of the definition of psychological servicessroberts on PROD1PC70 with RULES and mobility services and cannot take § 300.17(d), which states that FAPE is necessary. Including counseling in the place of appropriate orientation and means special education and related the definition of social work services in mobility services. services that are provided in conformity schools in § 300.34(c)(14) is intended to Comment: One commenter with an IEP that meets the requirements indicate the types of personnel who recommended that the regulations in §§ 300.320 through 300.324. assist in this activity and is not intended VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46574 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations either to imply that school social be provided by other qualified persons, services to children who are medically- workers are automatically qualified to as well as a qualified school nurse, fragile. perform counseling or to prohibit other because the majority of schools do not Discussion: It is unclear how adding qualified personnel from providing have a school nurse on staff. One school nurse services to the definition of counseling, consistent with State commenter requested that the related services affects services to requirements. regulations clarify that schools can children who are medically fragile. As Changes: None. continue to use registered nurses or defined in § 300.34(c)(13), school health Comment: One commenter stated that other personnel to provide school nurse services and school nurse services are other related services personnel, in services, consistent with State law. designed to enable a child with a addition to school psychologists, should Another commenter stated that there is disability to receive FAPE as described be permitted to develop and deliver well-established case law upholding the in the child’s IEP. A child who is positive behavioral intervention obligation of an SEA and LEA to medically fragile and needs school strategies. provide health-related services health services or school nurse services Discussion: There are many necessary for a child to benefit from in order to receive FAPE must be professionals who might also play a role special education. provided such services, as indicated in in developing and delivering positive Discussion: School health services the child’s IEP. behavioral intervention strategies. The was retained in the definition of related Changes: None. standards for personnel who assist in services in § 300.34(a). However, the Comment: One commenter stated that developing and delivering positive definition of school health services was the definition of school nurse services behavioral intervention strategies will inadvertently removed in the NPRM. To should include services that enable a vary depending on the requirements of correct this error, we will add school child with a disability to receive FAPE the State. Including the development health services to the definition of in the LRE. Another commenter stated and delivery of positive behavioral school nurse services and clarify that that school nurses can be extremely intervention strategies in the definition school health services and school nurse supportive of children with disabilities of psychological services is not intended services means health services that are receiving FAPE in the LRE and to imply that school psychologists are designed to enable a child with a recommended changing the regulations automatically qualified to perform these disability to receive FAPE. We will also to ensure that parents understand that duties or to prohibit other qualified add language to clarify that school nurse the definition of related services personnel from providing these services, services are provided by a qualified includes school nurse services. consistent with State requirements. school nurse and that school health Discussion: The LRE requirements in Changes: None. services are provided by either a §§ 300.114 through 300.120 provide, qualified school nurse or other qualified that to the maximum extent appropriate, Recreation (§ 300.34(c)(11)) person. We recognize that most schools children with disabilities are to be Comment: A few commenters do not have a qualified school nurse on educated with children who are not requested modifying the definition of a full-time basis (i.e., a nurse that meets disabled. It is not necessary to repeat recreation to include therapeutic the State standards for a qualified this requirement in the definition of recreation services provided by a school nurse), and that many schools school health services and school nurse qualified recreational therapist, which rely on other qualified school personnel services. include services that restore, remediate, to provide school health services under We agree that school health services or rehabilitate to improve functioning the direction of a school nurse. and school nurse services are important and independence, and reduce or Therefore, we believe it is important to related services. Section 300.34(a) and eliminate the effects of illness or retain the definition of school health section 602(26)(A) of the Act are clear disability. services and school nurse services in that the definition of related services Discussion: We do not believe it is these regulations. includes school health services and necessary to change the definition of With the changes made in § 300.34(c), school nurse services. The IEP Team, of recreation as recommended by the it is not necessary for the reference to which the parent is an integral member, commenters because the definition is ‘‘school nurse services’’ in § 300.34(a) to is responsible for determining the sufficiently broad to include the include the phrase, ‘‘designed to enable services that are necessary for the child services mentioned by the commenters. a child with a disability to receive a free to receive FAPE. We, therefore, do not Changes: None. appropriate public education as believe that it is necessary to add a described in the IEP of the child.’’ We regulation requiring public agencies to School Health Services and School will, therefore, remove this phrase in ensure that parents understand that Nurse Services (Proposed School Nurse § 300.34(a). related services include school health Services) (§ 300.34(c)(13)) Changes: Section 300.34(c)(13) has services and school nurse services. Comment: Some commenters noted been revised to include a definition of Changes: None. that while ‘‘school health services’’ is school health services and school nurse Comment: One commenter stated that included in the list of related services in services. Additional language has been including the phrase, ‘‘designed to § 300.34(a), it is not defined, which will added to clarify who provides school enable a child with a disability to result in confusion about the health services and school nurse receive a free appropriate public relationship between ‘‘school health services. We have also modified education’’ in § 300.34(c)(13) in relation services’’ and ‘‘school nurse services.’’ § 300.34(a) by deleting the redundant to school nurse services, is unnecessary Some commenters stated that adding phrase, ‘‘designed to enable a child with and confusing. the definition of school nurse services a disability to receive a free appropriate Discussion: As stated in § 300.34(a), and eliminating the definition of school public education as described in the IEP the purpose of related services is tosroberts on PROD1PC70 with RULES health services must not narrow the of the child.’’ assist a child with a disability to benefit range of related services available to Comment: One commenter stated that from special education. We believe it is children. One commenter recommended adding school nurse services to the necessary to specify that school health that the definition of school nurse definition of related services makes it services and school nurse services are services allow school nurse services to more burdensome for the delivery of related services only to the extent that VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46575 the services allow a child to benefit language in the preamble to the final community resources would not be an from special education and enable a 1992 regulations also clarified that this effective means of enabling the child to child with a disability to receive FAPE. provision did not set a legal standard for learn as effectively as possible because Changes: None. that program or entitle the child to a there are no community resources to Social Work Services in Schools particular educational benefit. The address the needs of the child, the IEP (§ 300.34(c)(14)) preamble further explained that, during Team would need to consider other the public comment period for the 1992 ways to meet the child’s needs. While Comment: One commenter regulations, commenters raised there is the possibility that a due recommended including strategies to concerns that the term ‘‘maximum process hearing might be filed based on facilitate social-emotional learning in benefit’’ appeared to be inconsistent a failure to mobilize community the definition of social work services in with the decision by the United States resources that do not exist, we do not schools. A few commenters stated that Supreme Court in Board of Education v. believe that such a claim could ever be the role of the school social worker is Rowley, 458 U.S. 176 (1982). Therefore, successful, as the regulation does not evolving and recommended that the the phrase was revised to read ‘‘to learn require the creation of community definition include the role of social as effectively as possible in his or her resources that do not exist. workers as integral members of pre- educational program.’’ This is the same Changes: None. referral teams that deliver interventions phrase used in the 1999 regulations and to decrease the number of referrals to Speech-language Pathology Services in these regulations in special education. One commenter (§ 300.34(c)(15)) § 300.34(c)(14)(iv). Because the language recommended that the definition in the 1977 final regulations did not Comment: One commenter stated that include a reference to the social entitle a child to any particular benefit, children who need speech therapy worker’s role in addressing the relevant the change made in 1992 did not lessen should have it for a full classroom history and current functioning of an protections for a child, and, therefore, is period, five days a week, and not be individual within his or her not subject to section 607(b) of the Act. removed from other classes to receive environmental context, rather than Changes: None. this related service. referring to social-developmental Comment: One commenter Discussion: It would be inconsistent histories. Another commenter stated recommended adding a reference to with the Act to dictate the amount and that social workers are trained to find ‘‘functional behavioral assessments’’ in location of services for all children resources in the home, school, and § 300.34(c)(14)(v) because functional receiving speech-language pathology community and recommended behavioral assessments should always services, as recommended by the including such language in the precede the development of behavioral commenter. As with all related services, definition. intervention strategies. Another section 614(d)(1)(A)(i)(IV) of the Act Discussion: The definition of social commenter expressed concern that provides that the child’s IEP Team is work services in schools is sufficiently § 300.34(c)(14)(iv), regarding social responsible for determining the services broad to include the services described work services to mobilize school and that are needed for the child to receive by the commenters and we do not community resources to enable the FAPE. This includes determining the believe the definition should be revised child to learn as effectively as possible, type of related service, as well as the to add these more specific functions. creates a potential for litigation. The amount and location of services. Changes: None. commenter asked whether a school Changes: None. Comment: One commenter stated that district could face a due process hearing Comment: One commenter stated that the definition of social work services in for failure to mobilize community the definition of speech-language schools removes language from the 1983 resources if there are no community pathology services appears to be limited regulations that states that social work resources to address the needs of the to children who are deaf or hard of services allow children with disabilities child or family. hearing, and recommended adding to maximize benefit from the learning Discussion: The definition of social language to the regulations to allow program. The commenter stated that this work services in schools includes children without expressive speech to is a higher standard than what is examples of the types of social work receive such services. required in § 300.34(c)(14), which only services that may be provided. It is not Discussion: There is nothing in the requires that services enable a child to a prescriptive or exhaustive list. The Act or the regulations that would limit learn as effectively as possible, and, child’s IEP Team is responsible for speech-language pathology services to therefore, the 1983 definition should be determining whether a child needs children who are deaf or hard of hearing retained, consistent with section 607(b) social work services, and what specific or to children without expressive of the Act. social work services are needed in order speech. The definition of speech- Discussion: We disagree with the for the child to receive FAPE. Therefore, language pathology services specifically commenter. The definition of social while conducting a functional includes services for children who have work services in schools in the 1977 behavioral assessment typically language impairments, as well as speech regulations included ‘‘mobilizing school precedes developing positive behavioral impairments. and community resources to enable the intervention strategies, we do not Changes: None. child to receive maximum benefit from believe it is necessary to include Comment: One commenter requested his or her educational program.’’ As functional behavioral assessments in the the definition of speech-language explained in the preamble to the final definition of social work services in pathology services specify the 1992 regulations, the phrase ‘‘to receive schools because providing positive qualifications and standards for speech- maximum benefit’’ was intended only to behavioral intervention strategies is just language professionals. Another provide that the purpose of activities an example of a social work service that commenter requested that the definitionsroberts on PROD1PC70 with RULES carried out by personnel qualified to might be provided to a child if the require a highly qualified provider to provide social work services in schools child’s IEP Team determines that such deliver speech-language services. One is to mobilize resources so that a child services are needed for the child to commenter requested that the definition can learn as effectively as possible in his receive FAPE. Similarly, if a child’s IEP require a speech-language pathologist to or her educational program. The Team determines that mobilizing provide speech-language services. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46576 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations Discussion: Consistent with § 300.156 escort the child to and from the bus B of the Act and, therefore, we will and section 612(a)(14) of the Act, it is each day. include a reference to the definition of up to each State to establish personnel Discussion: A child’s IEP Team is that term in section 9101(37) of the qualifications to ensure that personnel responsible for determining whether ESEA. necessary to carry out the purposes of transportation between school and other For the reasons set forth earlier in this the Act are appropriately and locations is necessary in order for the notice, we are not including definitions adequately prepared and trained and child to receive FAPE. Likewise, if a from other statutes in these regulations. have the content knowledge and skills child’s IEP Team determines that However, we will include the current to serve children with disabilities. supports or modifications are needed in definition of scientifically based Section 300.156(b), consistent with order for the child to be transported so research in section 9101(37) of the section 614(a)(14)(B) of the Act, that the child can receive FAPE, the ESEA here for reference. specifically requires that these child must receive the necessary Scientifically based research— personnel qualifications must include transportation and supports at no cost to (a) Means research that involves the qualifications for related services the parents. We believe the definition of application of rigorous, systematic, and personnel. Establishing qualifications transportation is sufficiently broad to objective procedures to obtain reliable for individuals providing speech- address the commenters’ concerns. and valid knowledge relevant to language services in these regulations Therefore, we decline to make the education activities and programs; and would be inconsistent with these requested changes to the definition. (b) Includes research that— statutory and regulatory requrements. Changes: None. (1) Employs systematic, empirical Changes: None. Comment: Some commenters methods that draw on observation or recommended removing the term experiment; Comment: One commenter stated that ‘‘special transportation’’ from the (2) Involves rigorous data analyses the roles and responsibilities for speech- definition of transportation because the that are adequate to test the stated language pathologists in schools have term gives the impression that adapted hypotheses and justify the general been expanded to help all children gain buses are used for a separate and conclusions drawn; language and literacy skills and different transportation system, when, (3) Relies on measurements or recommended that the definition of in fact, adapted buses are part of the observational methods that provide speech-language pathology services be regular transportation fleet and system. reliable and valid data across evaluators revised to include consultation and These commenters stated that adapted and observers, across multiple collaboration with other staff members buses should only be used as a separate, measurements and observations, and to plan and implement special special transportation service if the across studies by the same or different intervention monitoring programs and child’s IEP indicates that the investigators; modify classroom instruction to assist (4) Is evaluated using experimental or transportation needs of the child can be children in achieving academic success. quasi-experimental designs in which met only with transportation services The commenter also recommended individuals, entities, programs, or that are separate from the transportation including services for other health activities are assigned to different services for all children. impairments, such as dysphagia, in the Discussion: We do not believe it is conditions and with appropriate definition of speech-language pathology necessary to make the change requested controls to evaluate the effects of the services. by the commenters. It is assumed that condition of interest, with a preference Discussion: The Act provides for most children with disabilities will for random-assignment experiments, or speech-language pathology services for receive the same transportation other designs to the extent that those children with disabilities. It does not provided to nondisabled children, designs contain within-condition or include speech-language pathology consistent with the LRE requirements in across-condition controls; services to enable all children to gain §§ 300.114 through 300.120, unless the (5) Ensures that experimental studies language and literacy skills, as IEP Team determines otherwise. While are presented in sufficient detail and suggested by the commenter. It would, we understand the commenter’s clarity to allow for replication or, at a therefore, be inconsistent with the Act concern, adapted buses may or may not minimum, offer the opportunity to build to change the definition of speech- be part of the regular transportation systematically on their findings; and language pathology services in the system in a particular school system. In (6) Has been accepted by a peer- manner recommended by the any case, if the IEP Team determines reviewed journal or approved by a panel commenter. We believe that the that a child with a disability requires of independent experts through a definition is sufficiently broad to transportation as a related service in comparably rigorous, objective, and include services for other health order to receive FAPE, or requires scientific review. impairments, such as dysphagia, and supports to participate in integrated Changes: A cross-reference to the therefore, decline to revise the transportation with nondisabled definition of scientifically based definition to include this specific children, the child must receive the research in section 9101(37) of the service. necessary transportation or supports at ESEA has been added as new § 300.35. Changes: None. no cost to the parents. Subsequent definitions have been Transportation (§ 300.34(c)(16)) Changes: None. renumbered accordingly. Comment: A few commenters stated Scientifically Based Research (new Secondary School (New § 300.36) that the definition of transportation § 300.35) (Proposed § 300.35) should require transportation to be Comment: A number of commenters Comment: One commenter requested provided between school and other requested that the regulations include a clarification regarding the definition ofsroberts on PROD1PC70 with RULES locations in which IEP services are definition of scientifically based secondary school and whether ‘‘grade provided. Other commenters requested research. 12’’ refers to the regular grade 12 that the definition explicitly define Discussion: The definition of curriculum aligned to State academic transportation as door-to-door services, scientifically based research is achievement standards under the ESEA including provisions for an aide to important to the implementation of Part or a limit on the number of years VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46577 children with a disabilities can spend in other forms of education mentioned by disabilities have access to the general school. the commenter. curriculum is a major focus of the Discussion: The term ‘‘grade 12’’ in Changes: None. requirements for developing a child’s the definition of secondary school has IEP. For example, § 300.320(a)(1) Individual Special Education Terms the meaning given it under State law. It requires a child’s IEP to include a Defined (New § 300.39(b)) (Proposed is not intended to impose a Federal statement of how the child’s disability § 300.38(b)) limit on the number of years a child affects the child’s involvement and with a disability is allowed to complete Comment: A few commenters progress in the general education his or her secondary education, as some provided definitions of curriculum; § 300.320(a)(2)(i) requires children with disabilities may need ‘‘accommodations’’ and ‘‘modifications’’ annual IEP goals to be designed to more than 12 school years to complete and recommended including them in enable the child to be involved in and their education. new § 300.39(b) (proposed § 300.38(b)). make progress in the general education Changes: None. Discussion: The terms curriculum; and § 300.320(a)(4) requires ‘‘accommodations’’ and ‘‘modifications’’ the IEP to include a statement of the Services Plan (New § 300.37) (Proposed are terms of art referring to adaptations special education and related services § 300.36) of the educational environment, the the child will receive, as well as the Comment: One commenter stated that presentation of educational material, the program modifications or supports for the term services plan is not in the Act method of response, or the educational school personnel that will be provided, and, therefore, should be removed. content. They are not, however, to enable the child to be involved in and However, the commenter stated that if examples of different types of make progress in the general education the definition of services plan remained ‘‘education’’ and therefore we do not curriculum. We do not believe in the regulations, it should reflect the believe it is appropriate to define these additional language is necessary. fact that parentally-placed private terms of art or to include them in new Changes: None. school children are not entitled to § 300.39(b) (proposed § 300.38(b)). Travel Training (New § 300.39(b)(4)) FAPE. Changes: None. (Proposed § 300.38(b)(4)) Discussion: The definition of services Physical Education (New § 300.39(b)(2)) Comment: A few commenters plan was included to describe the (Proposed § 300.38(b)(2)) recommended strengthening the content, development, and Comment: One commenter requested definition of travel training in new implementation of plans for parentally- that adaptive physical education be § 300.39(b)(4) (proposed § 300.38(b)(4)) placed private school children with subject to the LRE requirements of the and adding travel training to new disabilities who have been designated to Act. § 300.43 (proposed § 300.42) (transition receive equitable services. The Discussion: The requirements in services) to acknowledge that definition cross-references the specific §§ 300.114 through 300.120 require that, transportation is vitally important for requirements for the provision of to the maximum extent appropriate, children with disabilities to have full services to parentally-placed private children with disabilities are educated participation in the community. The school children with disabilities in with children who are nondisabled. commenters recommended that the § 300.132 and §§ 300.137 through This requirement applies to all special definition of travel training include 300.139, which provide that parentally- education services, including adaptive providing instruction to children with placed private school children have no physical education. We see no need to disabilities, other than blindness, to individual right to special education repeat this requirement specifically for enable them to learn the skills and and related services and thus are not the provision of adaptive physical behaviors necessary to move effectively entitled to FAPE. We do not believe education. and safely in various environments, further clarification is necessary. Changes: None. including use of public transportation. Changes: None. Discussion: We believe the definition Specially Designed Instruction (New of travel training already acknowledges Special Education (New § 300.39) § 300.39(b)(3)) (Proposed § 300.38(b)(3)) the importance of transportation in (Proposed § 300.38) Comment: One commenter stated that supporting children with disabilities to Comment: One commenter requested the regulations should strengthen the fully participate in their communities. modifying the definition of special requirements ensuring children access New § 300.43(a)(4) (proposed education to distinguish special to the general curriculum, because many § 300.42(a)(4)) defines travel training to education from other forms of children with disabilities still do not include providing instruction that education, such as remedial have the tools they need or the teachers enables children to learn the skills programming, flexible grouping, and with expertise to access the general necessary to move effectively and safely alternative education programming. The curriculum. from place to place in school, home, at commenter stated that flexible grouping, Discussion: We believe the regulations work and in the community. Therefore, diagnostic and prescriptive teaching, place great emphasis on ensuring that we do not believe that further and remedial programming have children with disabilities have access to clarification is necessary. We also do expanded in the general curriculum in the general education curriculum. New not believe that it is necessary to add regular classrooms and the expansion of § 300.39(b)(3) (proposed § 300.38(b)(3)) travel training to the definition of such instruction will only be defines specially designed instruction as transition services, as recommended by encouraged with the implementation of adapting the content, methodology, or the commenters. We believe that IEP early intervening services under the Act. delivery of instruction to address the Teams already consider the importance Discussion: We believe the definition unique needs of the child and to ensure of transportation and travel trainingsroberts on PROD1PC70 with RULES of special education is clear and access to the general curriculum so that services in the course of planning for a consistent with the definition in section the child can meet the educational student’s postsecondary transition 602(29) of the Act. We do not believe it standards within the jurisdiction of the needs. It is unnecessary to state that is necessary to change the definition to public agency that apply to all children. travel training includes instructing distinguish special education from the In addition, ensuring that children with children with disabilities other than VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46578 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations blindness, as requested by the secondary education, which is an individuals because § 300.320(a)(4) commenters, because the definition of unwarranted responsibility for school requires each child’s IEP to include a travel training already states that travel districts. One commenter stated that the statement of the program modifications training is appropriate for any child definition could be interpreted to or supports for school personnel that with a disability who requires this require public agencies to provide two will be provided to enable the child to instruction. years of postsecondary education for be involved in and make progress in the Changes: None. students with disabilities. A few general education curriculum, and to Comment: A few commenters strongly commenters strongly recommended participate in extracurricular and other recommended clarifying that the removing the definition of vocational nonacademic activities. definition of travel training does not and technical education. As noted in the Analysis of Comments include training for children with visual Some commenters recommended and Changes section for subpart B, we impairments, regardless of whether they removing the reference to the have clarified in § 300.107(a) that States have additional disabilities. postsecondary level for a 1-year must ensure that public agencies take Discussion: Any child with a certificate, an associate degree, and steps to provide nonacademic and disability, including a child with a industry-recognized credential in the extracurricular services and activities, visual impairment, who needs travel definition of vocational and technical including providing supplementary aids training instruction to receive FAPE, as education. One commenter suggested and services determined appropriate determined by the child’s IEP Team, can that proposed § 300.38(b)(6)(i)(A) and necessary by the child’s IEP Team receive travel training instruction. New conclude with the word ‘‘or’’ to clarify to afford children with disabilities an § 300.39(b)(4) (proposed § 300.38(b)(4)) that the sequence of courses is equal opportunity for participation in specifically states that travel training discretionary. those services and activities. We have, means providing instruction to children Discussion: The definition of therefore, revised the definition of with significant cognitive disabilities vocational education was revised to supplementary aids and services in new and any other children with disabilities include the definition of vocational and § 300.42 (proposed § 300.41) to be who require this instruction. We, technical education in the Carl D. consistent with this change. therefore, decline to change the Perkins Vocational and Applied Changes: We have added language in definition, as recommended by the Technology Act of 1988, as amended, 20 new § 300.42 (proposed § 300.41) to commenters. U.S.C. 2301, 2302(29). However, based clarify that supplementary aids and Changes: None. on the comments we received, it is services can be provided in apparent that including the definition of Vocational Education (New extracurricular and nonacademic vocational and technical education has § 300.39(b)(5)) (Proposed § 300.38(b)(5)) settings to enable children with raised concerns and confusion regarding Comment: A few commenters disabilities to be educated with the responsibilities of SEAs and LEAs to recommended revising the definition of nondisabled children to the maximum provide vocational education. vocational education to include extent appropriate. Therefore, we will remove the definition specially designed educational of vocational and technical education in Comment: None. programs that are directly related to the proposed § 300.38(b)(6) and the Discussion: New § 300.42 (proposed preparation of individuals for paid or reference to vocational and technical § 300.41) contains an incorrect reference unpaid employment or for additional education in proposed § 300.38(b)(5)(ii). to § 300.112. The correct reference preparation for a career not requiring a Changes: The definition of vocational should be to § 300.114. baccalaureate or advanced degree. and technical education in proposed Changes: We have removed the Discussion: We believe that the more § 300.38(b)(6) has been removed. reference to § 300.112 and replaced it general reference to ‘‘organized Accordingly, the reference to vocational with a reference to § 300.114. education programs’’ in the definition of and technical education in proposed Transition Services (New § 300.43) vocational education is accurate and § 300.38(b)(5)(ii)) has also been (Proposed § 300.42) should not be changed to refer to removed. ‘‘specially designed educational Comment: One commenter Supplementary Aids and Services (New recommended replacing the word programs,’’ as recommended by the § 300.42) (Proposed § 300.41) ‘‘child’’ with ‘‘student’’ in the definition commenter, because some children with disabilities will benefit from Comment: A few commenters stated of transition services. educational programs that are available that the definition of supplementary Discussion: The definition of for all children and will not need aids and services should be changed to transition services follows the language specially designed programs. mean aids, services, and other supports in section 602(34) of the Act. The words Changes: None. provided in general education classes or ‘‘child’’ and ‘‘student’’ are used Comment: Some commenters stated other settings to children with throughout the Act and we have used that Congress did not intend that the disabilities, as well as to educators, the statutory language in these definition of vocational education other support staff, and nondisabled regulations whenever possible. would include vocational and technical peers, if necessary, to support the Changes: None. education. The commenters stated that inclusion of children with disabilities. Comment: One commenter the addition of vocational and technical Discussion: The definition of recommended that the regulations education to the definition of vocational supplementary aids and services in new include vocational and career training education creates a right under the Act § 300.42 (proposed § 300.41) is through work-study as a type of to educational services that would be consistent with the specific language in transition service. A few commenters extremely costly for States and LEAs to section 602(33) of the Act, and refers to stated that the definition of transitionsroberts on PROD1PC70 with RULES implement. aids, services, and other supports for services must specify that a student’s Other commenters stated that children with disabilities. We do not need for transition services cannot be including the definition of vocational believe it is necessary to change the based on the category or severity of a and technical education from the Carl definition to include providing aids, student’s disability, but rather on the D. Perkins Act expands FAPE beyond services, and supports to other student’s individual needs. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46579 Discussion: We do not believe it is with a disability, and not just for interoperable with assistive necessary to change the definition of students with significant cognitive technologies. transition services because the disabilities. As with all special Changes: None. definition is written broadly to include education and related services, the Comment: Several commenters stated a range of services, including vocational student’s IEP Team determines the that the definition of universal design and career training that are needed to services that are needed to provide should be changed to include the meet the individual needs of a child FAPE to a child with a disability based universal design of academic content with a disability. The definition clearly on the needs of the child. standards, curricula, instructional states that decisions regarding transition Changes: None. materials, and assessments. services must be made on the basis of Comment: One commenter requested Discussion: The definition of the child’s individual needs, taking into a definition of ‘‘results-oriented universal design is statutory. Congress account the child’s strengths, process.’’ clearly intended that we use this preferences, and interests. As with all Discussion: The term ‘‘results- specific definition when it used this special education and related services, oriented process,’’ which appears in the term in the Act. We do not believe we the student’s IEP Team determines the statutory definition of transition can change this definition as suggested transition services that are needed to services, is generally used to refer to a by the commenters. provide FAPE to a child with a process that focuses on results. Because Changes: None. disability based on the needs of the we are using the plain meaning of the Subpart B—State Eligibility child, not on the disability category or term (i.e., a process that focuses on severity of the disability. We do not FAPE Requirements results), we do not believe it is believe further clarification is necessary. necessary to define the term in these Free Appropriate Public Education Changes: None. regulations. (FAPE) (§ 300.101) Comment: A few commenters stated Changes: None. Comment: One commenter that the regulations do not define Comment: A few commenters stated recommended revising § 300.101 to ‘‘functional’’ or explain how a student’s that ‘‘acquisition of daily living skills ensure that children with disabilities functional performance relates to the and functional vocational evaluation’’ is who are suspended or expelled from student’s unique needs or affects the student’s education. The commenters unclear as a child does not typically their current placement are provided noted that the word ‘‘functional’’ is used ‘‘acquire’’ an evaluation. The educational services consistent with throughout the regulations in various commenters stated that the phrase State academic achievement standards. forms, including ‘‘functional should be changed to ‘‘functional One commenter asked whether children assessment,’’ ‘‘functional goals,’’ vocational skills.’’ with disabilities who are suspended or ‘‘functional abilities,’’ ‘‘functional Discussion: We agree that the phrase expelled from their current placement needs,’’ ‘‘functional achievement,’’ and is unclear and will clarify the language must continue to be taught by highly ‘‘functional performance,’’ and should in the regulation to refer to the qualified teachers. be defined to avoid confusion. One ‘‘provision of a functional vocational Discussion: We believe the concern commenter recommended either evaluation.’’ raised by the commenter is already defining the term or explicitly Changes: We have added ‘‘provision addressed by this regulation and authorizing States to define the term. of a’’ before ‘‘functional vocational elsewhere in the regulations and that no One commenter recommended evaluation’’ in new § 300.43(a)(2)(v) for changes to § 300.101 are necessary. clarifying that ‘‘functional performance’’ clarity. Section 300.530(d), consistent with must be a consideration for any child Universal Design (New § 300.44) section 615(k)(1)(D) of the Act, clarifies with a disability who may need services (Proposed § 300.43) that a child with a disability who is related to functional life skills and not removed from his or her current just for students with significant Comment: Many commenters placement for disciplinary reasons, cognitive disabilities. A few requested including the full definition irrespective of whether the behavior is commenters stated that the definition of of universal design in the regulations, determined to be a manifestation of the transition services must specify that rather than providing a reference to the child’s disability, must be allowed to ‘‘functional achievement’’ includes definition of the term. participate in the general education achievement in all major life functions, Discussion: The term universal design curriculum, although in another setting, including behavior, social-emotional is defined in the Assistive Technology and to progress toward meeting his or development, and daily living skills. Act of 1998, as amended. For the her IEP goals. As the term ‘‘general Discussion: We do not believe it is reasons set forth earlier in this notice, education curriculum’’ is used necessary to include a definition of we are not including in these throughout the Act and in these ‘‘functional’’ in these regulations regulations full definitions of terms that regulations, the clear implication is that because the word is generally used to are defined in other statutes. However, there is an education curriculum that is refer to activities and skills that are not we will include the definition of this applicable to all children and that this considered academic or related to a term from section 3 of the Assistive curriculum is based on the State’s child’s academic achievement as Technology Act of 1998, as amended, 29 academic content standards. measured on Statewide achievement U.S.C. 3002, here for reference. Children with disabilities who are tests. There is nothing in the Act that The term universal design means a suspended or expelled from their would prohibit a State from defining concept or philosophy for designing and current placement in public schools ‘‘functional,’’ as long as the definition delivering products and services that are must continue to be taught by highly and its use are consistent with the Act. usable by people with the widest qualified teachers, consistent with thesroberts on PROD1PC70 with RULES We also do not believe it is necessary possible range of functional capabilities, requirements in §§ 300.156 and 300.18. for the definition of transition services which include products and services Private school teachers are not subject to to refer to all the major life functions or that are directly accessible (without the highly qualified teacher to clarify that functional performance requiring assistive technologies) and requirements under this part. must be a consideration for any child products and services that are Changes: None. 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  • 46580 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations Comment: One commenter suggested violated school conduct rules, and secondary school experience and clarifying in § 300.101 that FAPE must should not necessarily have to provide postsecondary goals. be available to children with disabilities exactly the same services, in the same Discussion: We believe that in the least restrictive environment. settings, to these children. Therefore, we § 300.102(a)(3) is sufficiently clear that Discussion: We do not believe further decline to regulate further in this regard. public agencies need not make FAPE clarification is needed in § 300.101, as Changes: None. available to children with disabilities the matter is adequately covered Comment: Some commenters who have graduated with a regular high elsewhere in the regulations. Section expressed concern that children with school diploma and that no change is 300.101 clarifies that, in order to be disabilities have to fail or be retained in needed to the regulations. Children with eligible to receive funds under Part B of a grade or course in order to be disabilities who have not graduated the Act, States must, among other considered eligible for special education with a regular high school diploma still conditions, ensure that FAPE is made and related services. have an entitlement to FAPE until the available to all children with specified Discussion: Section 300.101(c) child reaches the age at which eligibility disabilities in mandated age ranges. The provides that a child is eligible to ceases under the age requirements term FAPE is defined in § 300.17 and receive special education and related within the State. However, we have section 602(9)(D) of the Act as services even though the child is reviewed the regulations and believe including, among other elements, advancing from grade to grade. Further, that it is important for these regulations special education and related services, it is implicit from paragraph (c) of this to define ‘‘regular diploma’’ consistent provided at no cost to parents, in section that a child should not have to with the ESEA regulations in 34 CFR conformity with an individualized fail a course or be retained in a grade in § 200.19(a)(1)(i). Therefore, we will add education program (IEP). Sections order to be considered for special language to clarify that a regular high 300.114 through 300.118, consistent school diploma does not include an education and related services. A public with section 612(a)(5) of the Act, alternative degree that is not fully agency must provide a child with a implement the Act’s strong preference aligned with the State’s academic disability special education and related for educating children with disabilities standards, such as a certificate or services to enable him or her to progress in regular classes with appropriate aids general educational development (GED) in the general curriculum, thus making and supports. Specifically, § 300.114 credential. clear that a child is not ineligible to We do not believe § 300.102 could be provides that States must have in effect receive special education and related interpreted to permit public agencies to policies and procedures ensuring that, services just because the child is, with delay implementation of transition to the maximum extent appropriate, the support of those individually services, as stated by one commenter children with disabilities, including children in public or private institutions designed services, progressing in the because transition services must be or other care facilities, are educated general curriculum from grade-to-grade provided based on a child’s age, not the with children who are nondisabled, and or failing a course or grade. The group number of years the child has remaining that special classes, separate schooling, determining the eligibility of a child for in the child’s high school career. or other removal of children with special education and related services Section 300.320(b), consistent with disabilities from the regular educational must make an individual determination section 614(d)(1)(A)(i)(VIII) of the Act, environment occurs only if the nature or as to whether, notwithstanding the requires each child’s IEP to include, severity of the disability is such that child’s progress in a course or grade, he beginning not later than the first IEP to education in regular classes with the use or she needs or continues to need be in effect when the child turns 16, or of supplementary aids and services special education and related services. younger if determined appropriate by cannot be achieved satisfactorily. However, to provide additional clarity the IEP Team, appropriate measurable Changes: None. we will revise paragraph (c)(1) of this postsecondary goals and the transition Comment: A few commenters section to explicitly state that children services needed to assist the child in recommended including language in do not have to fail or be retained in a reaching those goals. § 300.101(a) specifying that children course or grade in order to be Changes: A new paragraph (iv) has with disabilities expelled or suspended considered eligible for special education been added in § 300.102(a)(3) stating from the general education classroom and related services. that a regular high school diploma does must be provided FAPE in the least Changes: Section 300.101(c)(1) has not include an alternative degree that is restrictive environment. been revised to provide that children do not fully aligned with the State’s Discussion: The Department believes not have to fail or be retained in a academic standards, such as a certificate it would not be appropriate to include course or grade in order to be or GED. the requested language in this section considered eligible for special education Comment: One commenter requested because services in these circumstances and related services. clarification as to how States should are provided under somewhat different include children with disabilities who Limitation—Exception to FAPE for criteria than is normally the case. require special education services Certain Ages (§ 300.102) Section 300.530 clarifies the procedures through age 21 in calculating, for school personnel must follow when Comment: One commenter requested adequate yearly progress (AYP) removing a child with a disability who that the regulations clarify that children purposes, the percentage of children violates a code of student conduct from with disabilities who do not receive a who graduate with a regular high school their current placement (e.g., regular high school diploma continue to diploma in the standard number of suspension and expulsion). This be eligible for special education and years. The commenter expressed includes how decisions are made related services. One commenter concern that States, in order to comply regarding the educational services the expressed concern that the provision in with their high school graduation ratesroberts on PROD1PC70 with RULES child receives and the location in which § 300.102(a)(3)(ii) regarding children academic outcome requirements under they will be provided. School officials with disabilities who have not been the ESEA, will change the grade status need some reasonable amount of awarded a regular high school diploma from 12th grade to 11th grade for those flexibility in providing services to could result in the delay of transition children with disabilities who will children with disabilities who have services in the context of the child’s typically age out of the public education VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46581 system under the Act. The commenter such a case, the SEA is responsible for Team determines that the child requires further stated that this will affect the ensuring that the entire cost of that a personal device (e.g., eyeglasses) in exception to FAPE provisions in child’s placement, including the order to receive FAPE, the public § 300.102 for children with disabilities therapeutic care as well as room and agency must ensure that the device is who require special education services board, is without cost to the parents. provided at no cost to the child’s through age 21. However, the SEA is not responsible for parents. Discussion: The calculation of providing medical care. Thus, visits to Changes: None. graduation rates under the ESEA for a doctor for treatment of medical Comment: One commenter AYP purposes (34 CFR 200.19(a)(1)(i)) conditions are not covered services recommended adding language to does not alter the exception to FAPE under Part B of the Act and parents may § 300.105(b) to include, in addition to provisions in § 300.102(a)(3) for be responsible for the cost of the hearing aids, other hearing children with disabilities who graduate medical care. enhancement devices, such as a from high school with a regular high Changes: None. cochlear implant. school diploma, but not in the standard Discussion: Section 300.105(b), as Assistive Technology (§ 300.105) number of years. The public agency proposed, requires a public agency to must make FAPE available until age 21 Comment: One commenter ensure that hearing aids worn in school or the age limit established by State law, recommended removing § 300.105 and by children with hearing impairments, even though the child would not be including the requirements in this including deafness, are functioning included as graduating for AYP section in the definition of assistive properly. This is a longstanding purposes under the ESEA. In practice, technology device in § 300.5 and requirement and was included pursuant though, there is no conflict between the assistive technology service in § 300.6. to a House Committee Report on the Act and the ESEA, as the Department Discussion: Section 300.5 and § 300.6 1978 appropriations bill (H. Rpt. No. interprets the ESEA title I regulations to define the terms assistive technology 95–381, p. 67 (1977)) directing the permit States to propose a method for device and assistive technology service, Department to ensure that children with accurately accounting for students who respectively. Section 300.105 is not part hearing impairments are receiving legitimately take longer than the of the definition of these terms, but adequate professional assessment, standard number of years to graduate. rather is necessary to specify the follow-up, and services. The Changes: None. circumstances under which public Department believes that, given the agencies are responsible for making increase in the number of children with Residential Placement: (§ 300.104) available assistive technology devices disabilities with surgically implanted Comment: A few commenters and assistive technology services to requested that the regulations clarify devices (e.g., cochlear implants, vagus children with disabilities. nerve stimulators, electronic muscle that parents cannot be held liable for Changes: None. any costs if their child with a disability Comment: A few commenters stimulators), and rapid advances in new is placed in a residential setting by a requested clarifying in § 300.105(b) technologies to help children with public agency in order to provide FAPE whether hearing aids are included in the disabilities, it is important that these to the child. definition of an assistive technology regulations clearly address any Discussion: Section 300.104, device. obligation public agencies have to consistent with section 612(a)(1) and Discussion: An assistive technology provide follow-up and services to (a)(10)(B) of the Act, is a longstanding device, as defined in § 300.5, means any ensure that such devices are functioning provision that applies to placements item, piece of equipment, or product properly. that are made by public agencies in system that is used to increase, Section 602(1) of the Act clarifies that public and private institutions for maintain, or improve the functional the definition of assistive technology educational purposes and clarifies that capabilities of a child with a disability. device does not include a medical parents are not required to bear the costs The decision of whether a hearing aid device that is surgically implanted or of a public or private residential is an assistive technology device is a the replacement of such device. Section placement if such placement is determination that is made on an 602(26) of the Act also stipulates that determined necessary to provide FAPE. individual basis by the child’s IEP only medical services that are for If a public agency determines in an Team. However, even if the IEP Team diagnostic and evaluative purposes and individual situation that a child with a determines that a hearing aid is an required to assist a child with a disability cannot receive FAPE from the assistive technology device, within the disability to benefit from special programs that the public agency meaning of § 300.5, for a particular education are considered a related conducts and, therefore, placement in a child, the public agency is responsible service. We believe Congress was clear public or private residential program is for the provision of the assistive in its intent in S. Rpt. 108–185, p. 8, necessary to provide special education technology device as part of FAPE, only which states: and related services to the child, the if, as specified in § 300.105, the device [T]he definitions of ‘‘assistive technology program, including non-medical care is required as part of the child’s special device’’ and ‘‘related services’’ do not include a medical device that is surgically and room and board, must be at no cost education defined in § 300.39, related implanted, or the post-surgical maintenance, to the parents of the child. services defined in § 300.34, or programming, or replacement of such device, In situations where a child’s supplementary aids and services or an external device connected with the use educational needs are inseparable from defined in § 300.42. of a surgically implanted medical device the child’s emotional needs and an As a general matter, public agencies (other than the costs of performing routine individual determination is made that are not responsible for providing maintenance and monitoring of such external the child requires the therapeutic and personal devices, such as eyeglasses or device at the same time the child is receivingsroberts on PROD1PC70 with RULES habilitation services of a residential hearing aids that a child with a other services under the act). program in order to ‘‘benefit from disability requires, regardless of The Department believes, however, special education,’’ these therapeutic whether the child is attending school. that public agencies have an obligation and habilitation services may be However, if it is not a surgically to change a battery or routinely check an ‘‘related services’’ under the Act. In implanted device and a child’s IEP external component of a surgically VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46582 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations implanted medical device to make sure who require ESY services in order to extent that its application to those it is turned on and operating. However, receive FAPE have the necessary children would be inconsistent with mapping a cochlear implant (or paying services available to them, and that State law or practice, or the order of any the costs associated with mapping) is individualized determinations about court, regarding the provision of public not routine checking as described above each disabled child’s need for ESY education to children of those ages. We and should not be the responsibility of services are made through the IEP do not believe any further clarification a public agency. We will add language process. is necessary. to the regulations to clarify a public Changes: None. Changes: None. agency’s responsibility regarding the Comment: One commenter stated that Comment: One commenter requested routine checking of external the ESY requirements in § 300.106 that language be added to components of surgically implanted should not be included as part of the § 300.106(b)(1)(i) to clarify that medical devices. State eligibility requirements and would providing ESY services to a child with Changes: A new § 300.113 has been be more appropriately included in the a disability beyond the normal school added with the heading, ‘‘Routine definition of FAPE in § 300.17. year includes, but is not limited to, checking of hearing aids and external Discussion: The definition of FAPE in before and after regular school hours, on components of surgically implanted § 300.17 is taken directly from section weekends, and during regular school medical devices.’’ Section 300.105(b), 602(9) of the Act. We believe the ESY vacations. regarding the proper functioning of requirements are appropriately included Discussion: Typically, ESY services hearing aids, has been removed and under the FAPE requirements as a part are provided during the summer redesignated as new § 300.113(a). We of a State’s eligibility for assistance months. However, there is nothing in have added a new paragraph (b) in new under Part B of the Act because the right § 300.106 that would limit a public § 300.113 clarifying that, for a child of an individual child with a disability agency from providing ESY services to with a surgically implanted medical to ESY services is based on a child’s a child with a disability during times device who is receiving special entitlement to FAPE. As a part of the other than the summer, such as before education and related services under State’s eligibility for assistance under and after regular school hours or during this part, a public agency is responsible Part B of the Act, the State must make school vacations, if the IEP Team for routine checking of external FAPE available to all children with determines that the child requires ESY components of surgically implanted disabilities residing in the State in services during those time periods in medical devices, but is not responsible mandated age ranges. order to receive FAPE. The regulations for the post-surgical maintenance, Changes: None. Comment: One commenter give the IEP Team the flexibility to programming, or replacement of a recommended removing the word determine when ESY services are medical device that has been surgically ‘‘only’’ in § 300.106(a)(2) because it is appropriate, depending on the implanted (or of an external component unduly limiting. circumstances of the individual child. of a surgically implanted medical Discussion: The inclusion of the word Changes: None. device). The provisions in § 300.105 have been ‘‘only’’ is intended to be limiting. ESY Comment: One commenter suggested changed to conform with the other services must be provided ‘‘only’’ if a adding language to § 300.106 clarifying changes to this section and the phrase child’s IEP Team determines, on an that ‘‘recoupment and retention’’ should ‘‘proper functioning of hearing aids’’ has individual basis, in accordance with not be used as the sole criteria for been removed from the heading. §§ 300.320 through 300.324, that the determining the child’s eligibility for services are necessary for the provision ESY services. Extended School Year Services Discussion: We do not believe the of FAPE to the child. We do not think (§ 300.106) commenter’s suggested change should this language is overly restrictive; Comment: Several commenters instead, we think it is necessary for be made. The concepts of ‘‘recoupment’’ recommended removing § 300.106 providing appropriate parameters to the and ‘‘likelihood of regression or because the requirement to provide responsibility of the IEP Team. retention’’ have formed the basis for extended school year (ESY) services to Changes: None. many standards that States use in children with disabilities is not required Comment: A few commenters making ESY eligibility determinations in the Act. suggested revising § 300.106(a)(3)(i) to and are derived from well-established Discussion: The requirement to specifically state that, in addition to judicial precedents. (See, for example, provide ESY services to children with particular categories of disabilities, Johnson v. Bixby Independent School disabilities who require such services in public agencies may not limit ESY District 4, 921 F.2d 1022 (10th Cir. order to receive FAPE reflects a services to particular age ranges. Other 1990); Crawford v. Pittman, 708 F.2d longstanding interpretation of the Act commenters proposed adding 1028 (5th Cir. 1983); GARC v. McDaniel, by the courts and the Department. The ‘‘preschooler with a disability’’ to the 716 F.2d 1565 (11th Cir. 1983)). States right of an individual child with a definition of ESY services in may use recoupment and retention as disability to receive ESY services is § 300.106(b)(1). their sole criteria but they are not based on that child’s entitlement to Discussion: The revisions limited to these standards and have FAPE under section 612(a)(1) of the Act. recommended by the commenters are considerable flexibility in determining Some children with disabilities may not not necessary. Section 300.106(a) eligibility for ESY services and receive FAPE unless they receive clarifies that each public agency must establishing State standards for making necessary services during times when ensure that ESY services are available ESY determinations. However, whatever other children, both disabled and for children with disabilities if those standard a State uses must be consistent nondisabled, normally would not be services are necessary for the children to with the individually-orientedsroberts on PROD1PC70 with RULES served. We believe it is important to receive FAPE. Section 300.101(a) clearly requirements of the Act and may not retain the provisions in § 300.106 states that FAPE must be available to all limit eligibility for ESY services to because it is necessary that public children aged 3 through 21, inclusive, children with a particular disability agencies understand their obligation to residing in the State, except for children category or be applied in a manner that ensure that children with disabilities ages 3, 4, 5, 18, 19, 20, or 21 to the denies children with disabilities who VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46583 require ESY services in order to receive other children of the public agency. We Special education as set forth in the FAPE access to necessary ESY services. disagree that the list of activities causes Committee bill includes instruction in Changes: None. confusion with related services, as we physical education, which is provided as a think that the public can easily matter of course to all non-handicapped Nonacademic Services (§ 300.107) children enrolled in public elementary and recognize the difference between secondary schools. The Committee is Comment: One commenter academic counseling services, for recommended adding more specific concerned that although these services are example, that are offered to all children, available to and required of all children in language in § 300.107 regarding services and the type of counseling services that our school systems, they are often viewed as and accommodations available for might be included in a child’s IEP as a a luxury for handicapped children. nonacademic activities to ensure that related service. For these reasons, we children with disabilities are fully We agree that § 300.108(a) could be believe it is appropriate to maintain the interpreted to mean that physical included in nonacademic activities. list of nonacademic and extracurricular Discussion: We agree with the education must be made available to all services and activities in § 300.107, children with disabilities, regardless of commenter. Section 300.107(a), as including those services that are also proposed, requires public agencies to whether physical education is provided related services in § 300.34. to children without disabilities. We take steps to provide nonacademic and Changes: None. will, therefore, revise paragraph (a) to extracurricular services and activities in a manner necessary to afford children Physical Education (§ 300.108) clarify that the public agency has no with disabilities an equal opportunity to obligation to provide physical education participate in those services and Comment: A few commenters stated for children with disabilities if it does activities. In addition, that, in some States, physical education not provide physical education to § 300.320(a)(4)(ii), consistent with is not required for every nondisabled nondisabled children attending their section 614(d)(1)(i)(IV)(bb) of the Act, child every year and this creates schools. clarifies that an IEP must include a situations in which children with Changes: Section 300.108(a) has been statement of the special education and disabilities are in segregated physical revised as described in the preceding related services and supplementary aids education classes. The commenters paragraph. and services to be provided to the child recommended that the regulations clarify the requirements for public Full Education Opportunity Goal to participate in extracurricular and agencies to make physical education (FEOG) (§ 300.109) other nonacademic activities. We will add language in § 300.107(a) to clarify available to children with disabilities Comment: One commenter requested that the steps taken by public agencies when physical education is not that the regulations clarify how a State to provide access to nonacademic and available to children without communicates and monitors the extracurricular services and activities disabilities. progress of the State’s FEOG. include the provision of supplementary Discussion: Section 300.108 describes Discussion: We do not believe it is aids and services determined two considerations that a public agency appropriate to regulate how a State appropriate and necessary by the child’s must take into account to meet the communicates and monitors its progress IEP Team. physical education requirements in this toward the State’s FEOG. We believe the Changes: Additional language has section. First, physical education must State should have the flexibility needed been added in § 300.107(a) to clarify be made available equally to children to implement the provisions of this that the steps taken by public agencies with disabilities and children without section and the State is in the best to provide access to nonacademic and disabilities. If physical education is not position to make this determination. extracurricular services and activities available to all children (i.e., children Changes: None. include the provision of supplementary with and without disabilities), the public agency is not required to make Program Options (§ 300.110) aids and services determined appropriate and necessary by the child’s physical education available for Comment: A few commenters IEP Team. children with disabilities (e.g., a district recommended revising § 300.110 to Comment: One commenter expressed may provide physical education to all require States to ensure that each public concern about including ‘‘nonacademic children through grade 10, but not to agency have in effect policies, services’’ in § 300.107, because it is not any children in their junior and senior procedures, and programs to provide in the Act. The commenter stated that years). Second, if physical education is children with disabilities the variety of services such as athletics, recreational specially designed to meet the unique educational programs and services activities and clubs, counseling, needs of a child with a disability and is available to nondisabled children. The transportation and health services set out in that child’s IEP, those services commenters stated that § 300.110 does should not be included in the must be provided whether or not they not provide any guidance to educators. regulations because they may be costly are provided to other children in the A few commenters stated that and are usually available on a limited agency. ‘‘vocational education is an outdated basis. One commenter stated that it is This is the Department’s longstanding term’’ and proposed replacing it with confusing to include related services in interpretation of the requirements in ‘‘career-technical and adult education’’ the examples of nonacademic services § 300.108 and is based on legislative or ‘‘career and technical education.’’ and recommended that they be history that the intent of Congress was Discussion: We do not believe it is removed. to ensure equal rights for children with necessary to change § 300.110. Under Discussion: The list of nonacademic disabilities. The regulation as this provision, States must ensure that and extracurricular services and promulgated in 1977 was based on an public agencies take steps to ensure that activities in § 300.107(b) is not understanding that physical education children with disabilities have access tosroberts on PROD1PC70 with RULES exhaustive. The list provides public was available to all children without the same program options that are agencies with examples of services and disabilities and, therefore, must be made available to nondisabled children in the activities that may afford children with available to all children with area served by the agency, whatever disabilities an equal opportunity for disabilities. As stated in H. Rpt. No. 94– those options are, and we are not aware participation in the services offered to 332, p. 9, (1975): of any implementation problems with VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46584 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations this requirement. We believe that it is school children whose parents refuse have traditionally been interpreted to important that educators understand consent. mean identifying and evaluating that children with disabilities must have Discussion: This issue is addressed in children beginning at birth. While child access to the same range of programs the Analysis of Comments and Changes find under Part C of the Act overlaps, in and services that a public agency section for subpart D in response to part, with child find under Part B of the provides to nondisabled children and comments on § 300.300. Act, the coordination of child find that the regulation conveys this point. Changes: None. activities under Part B and Part C is an We also do not believe it is necessary to Comment: One commenter implementation matter that is best left replace the term ‘‘vocational education’’ recommended retaining current to each State. Nothing in the Act or with the language recommended by the § 300.125(b) to ensure that the child find these regulations prohibits a Part C lead commenter. The term is broad in its requirements are retained for parentally- agency’s participation, with the meaning and generally accepted and placed private school children. agreement of the SEA, in the actual understood in the field and, therefore, Discussion: Current § 300.125(b) was implementation of child find activities would encompass such areas as ‘‘career- removed from these regulations because, for infants and toddlers with technical’’ and ‘‘technical education.’’ under the Act, States are no longer disabilities. Changes: None. required to have State policies and Changes: None. Comment: Several commenters procedures on file with the Secretary. Comment: One commenter requested that the regulations explicitly Furthermore, the Department believes recommended removing § 300.111(c) state that a child with a disability who the requirements in §§ 300.111 and because child find for children with has not yet received a regular high 300.131 adequately ensure that developmental delays, older children school diploma or ‘‘aged out’’ of special parentally-placed private school progressing from grade to grade, and education may participate in dual children are considered in the child find highly mobile children is not enrollment programs and receive process. specifically required by the Act. services in a postsecondary or Changes: None. Discussion: The changes requested by community-based setting if the IEP Comment: One commenter requested the commenter cannot be made because Team decides it is appropriate. a definition of the term ‘‘private Discussion: Section 300.110, they are inconsistent with the Act. school,’’ as used in § 300.111. consistent with section 612(a)(2) of the Section 300.111(a)(1)(i), consistent with Discussion: The term ‘‘private school’’ Act, requires States to ensure that public section 612(a)(3)(A) of the Act, as used in § 300.111 means a private agencies take steps to ensure that explicitly requires that all children with elementary school or secondary school, children with disabilities have access to disabilities residing in the State are including a religious school. The terms the same program options that are identified, located, and evaluated. This elementary school and secondary school available to nondisabled children in the includes children suspected of having are defined in subpart A of these area served by the agency. This would developmental delays, as defined in regulations. The term private is defined apply to dual enrollment programs in section 602(3)(B) of the Act. We in 34 CFR Part 77, which applies to this post-secondary or community-based recognize that it is difficult to locate, program, and we see no need to include settings. Therefore, a State would be identify, and evaluate highly mobile and those definitions here. responsible for ensuring that a public Changes: None. migrant children with disabilities. agency that offered dual enrollment Comment: One commenter requested However, we strongly believe it is programs in post-secondary or that the child find requirements in important to stress in these regulations community-based settings to a § 300.111(c)(2) include homeless that the States’ child find nondisabled student would have that children. responsibilities in § 300.111 apply option available to a student with Discussion: Homeless children are equally to such children. We also disabilities whose IEP Team determined already included in the child find believe it is important to clarify that a that such a program would best meet the requirements. Section 300.111(a)(1)(i) child suspected of having a disability student’s needs. However, we do not clarifies that the State must have but who has not failed, is making believe that the Act requires public policies and procedures to ensure that academic progress, and is passing from agencies to provide dual enrollment children with disabilities who are grade to grade must be considered in the programs in post-secondary or homeless and who are in need of special child find process as any other child community-based settings for students education and related services, are suspected of having a disability. As with disabilities, if such programs are identified, located, and evaluated. No noted earlier in the discussion regarding not available to nondisabled secondary further clarification is needed. § 300.101, paragraph (c)(1) of § 300.111 school students. Therefore, we are not Changes: None. has been revised to clarify that children modifying the regulations. Comment: A few commenters do not have to fail or be retained in a Changes: None. recommended including in § 300.111 course or grade in order to be the requirements in current § 300.125(c), considered for special education and Child Find (§ 300.111) regarding child find for children from related services. Comment: Several commenters birth through age two when the SEA Changes: None. expressed confusion about the child and lead agency for the Part C program Comment: One commenter requested find requirements in § 300.111 and the are different. The commenters stated that § 300.111 explicitly require that parental consent requirements in that this will ensure that children with children in residential facilities be § 300.300, and requested clarification on disabilities from birth through age two included in the public agency’s child whether child find applies to private are eligible to participate in child find find process. school children and whether LEAs may activities when the Part C lead agency Discussion: We believe § 300.111(a),sroberts on PROD1PC70 with RULES use the consent override procedures for is not the SEA. consistent with section 612(a)(3)(A) of children with disabilities enrolled in Discussion: The Department does not the Act, clarifies that the State must private schools. Two commenters believe it is necessary to retain the ensure that all children with disabilities requested that § 300.111(a)(1)(i) specify language in current § 300.125(c). The residing in the State are identified, that child find does not apply to private child find requirements in § 300.111 located, and evaluated. This would VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46585 include children in residential facilities. 300.120 address the rights of children 614(d)(1)(A)(i)(V) of the Act, already No further clarification is necessary. with disabilities to be educated in the requires a child’s IEP to include an Changes: None. LRE, as well as safeguard parental explanation of the extent, if any, to Individualized Education Programs rights. Section 300.114, consistent with which the child will not participate (IEP) (§ 300.112) section 612(a)(5) of the Act, requires with nondisabled children in the regular each public agency to ensure that, to the class. As noted previously, parents are Comment: One commenter objected to maximum extent appropriate, children a part of the group making placement including the reference to with disabilities are educated with decisions. We believe these provisions § 300.300(b)(3)(ii) in § 300.112, stating children who are not disabled. Further, provide sufficient safeguards on the that it is not necessary to ensure § 300.116 ensures that a child’s parent is placement process. compliance with the requirement for an included in the group of persons making Changes: None. IEP or IFSP to be developed, reviewed, the decision about the child’s Comment: One commenter stated that and revised for each child with a placement. the LRE requirements are often disability. Changes: None. misinterpreted to be a mandate to Discussion: Section 300.300(b)(3)(ii) Comment: A number of comments include all children who are deaf or states that if a parent refuses to consent were received regarding hard of hearing in their local schools. to the initial provision of special § 300.114(a)(2)(ii), which requires each The commenter stated that the education and related services, or the public agency to ensure that the removal placement decision for a child who is parent fails to respond to a request to of children with disabilities from the deaf or hard of hearing should be based provide consent for the initial provision regular educational environment occurs on the child’s communication needs of special education and related only when the nature or severity of the and must be the environment that services, the public agency is not disability is such that the education in presents the fewest language and required to convene an IEP meeting or regular classes with the use of communication barriers to the child’s develop an IEP for the child. It is supplementary aids and services cannot cognitive, social, and emotional necessary to include this reference in be achieved satisfactorily. Many development. Some commenters § 300.112 to clarify the circumstances commenters recommended replacing cautioned that inclusive settings might under which a public agency is not ‘‘regular educational environment’’ with be inappropriate for a child who is deaf required to develop an IEP for an ‘‘regular classroom’’ because ‘‘regular and who requires communication eligible child with a disability. classroom’’ is less likely to be support and stated that the LRE should Changes: None. misinterpreted to mean any kind of be the place where a child can be Routine Checking of Hearing Aids and contact with children without educated successfully. A few External Components of Surgically disabilities. A few commenters commenters requested the regulations Implanted Medical Devices (§ 300.113) expressed concern that using the phrase clarify that all placement options must ‘‘regular educational environment’’ remain available for children who are Comment: None. weakens the LRE protections. Another deaf. Discussion: New § 300.113 is commenter recommended the One commenter recommended addressed in the Analysis of Comments regulations clarify that the ‘‘regular strengthening the requirement for a and Changes section for subpart A in educational environment’’ means the continuum of alternative placements response to comments on § 300.34(b). participation of children with and stated that a full range of placement Changes: We have added new options is necessary to meet the needs disabilities with their nondisabled peers § 300.113 to cover the routine checking of all children with visual impairments. in regular classrooms and other of hearing aids and external components Another commenter urged the educational settings including of surgically implanted medical devices. Department to ensure that children with nonacademic settings. The requirement for the routine Discussion: Section 300.114(a)(2)(ii) low-incidence disabilities (including checking of hearing aids has been follows the specific language in section children who are deaf, hard of hearing, removed from proposed § 300.105 and 612(a)(5)(A) of the Act and reflects or deaf-blind) have access to appropriate included in new § 300.113(a). The previous regulatory language. This educational programming and services requirement for routine checking of an requirement is longstanding. We do not at all times, including center-based external component of a surgically believe the language should be revised, schools, which may be the most implanted medical device has been as recommended by the commenters, appropriate setting for children with added as new § 300.113(b). The because ‘‘regular educational low-incidence disabilities. requirements for assistive technology environment’’ encompasses regular Discussion: The LRE requirements in devices and services remain in classrooms and other settings in schools §§ 300.114 through 300.117 express a § 300.105 and the heading has been such as lunchrooms and playgrounds in strong preference, not a mandate, for changed to reflect this change. We have which children without disabilities educating children with disabilities in also included a reference to new participate. regular classes alongside their peers § 300.113(b) in new § 300.34(b)(2). Changes: None. without disabilities. Section Least Restrictive Environment (LRE) Comment: One commenter requested 300.114(a)(2), consistent with section revising § 300.114(a)(2) to require a 612(a)(5)(A) of the Act, requires that, to LRE Requirements (§ 300.114) public agency to document and justify the maximum extent appropriate, Comment: One commenter placements of children with disabilities children with disabilities are educated recommended including language in the in environments outside the general with children who are not disabled, and regulations that respects and safeguards education classroom. that special classes, separate schooling, parental involvement and protects the Discussion: The additional language or other removal of children withsroberts on PROD1PC70 with RULES rights of children with disabilities to be requested by the commenter is not disabilities from the regular educational educated in the least restrictive necessary and would impose environment occurs only when the environment (LRE). unwarranted paperwork burdens on nature or severity of the disability is Discussion: We believe that the LRE schools. Section 300.320(a)(5), such that education in regular classes requirements in §§ 300.114 through consistent with section with the use of supplementary aids and VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46586 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations services cannot be achieved suspended or expelled for disciplinary their funding on certain placement satisfactorily. reasons continue to be educated with decisions. A few commenters suggested With respect to the recommendation children who are not disabled during changing the requirement in that the placement for children who are the period of their removal. We believe § 300.114(b)(2) for States to provide an deaf or hard of hearing be based on the it is important to ensure that children assurance that the State will revise its child’s communication needs, with disabilities who are suspended or funding mechanism ‘‘as soon as § 300.324(a)(2)(iv), consistent with expelled from school receive feasible’’ to ‘‘no later than the start of section 614(d)(3)(B)(iv) of the Act, appropriate services, while preserving the 2006–2007 school year.’’ clarifies that the IEP Team, in the flexibility of school personnel to Discussion: Section 300.114(b)(2) developing the IEP for a child who is remove a child from school, when incorporates the language in section deaf or hard of hearing, must consider necessary, and to determine how best to 612(a)(5)(B)(ii) of the Act, and requires the child’s language and communication address the child’s needs during periods that if a State does not have policies and needs, opportunities for direct of removal and where services are to be procedures to ensure that the State’s communication with peers and provided to the child during such funding mechanism does not violate the professional personnel in the child’s periods of removals, including, if LRE requirements, the State must language and communication mode, and appropriate, home instruction. Sections provide the Secretary an assurance that the child’s academic level and full range 300.530 through 300.536 address the the State will revise its funding of needs, including opportunities for options available to school authorities mechanism as soon as feasible. We do direct instruction in the child’s language in disciplining children with disabilities not believe it is necessary to include in and communication mode. and set forth procedures that must be these regulations a specific timeline for With respect to strengthening the followed when taking disciplinary a State to revise its funding mechanism, continuum of alternative placement actions and in making decisions if required to do so pursuant to requirements, nothing in the LRE regarding the educational services that a 300.114(b)(2). We believe the statutory requirements would prevent an IEP child will receive and the location in language ‘‘as soon as feasible,’’ while Team from making a determination that which services will be provided. We providing flexibility as to how each placement in the local school is not believe including the language State meets the requirement, is appropriate for a particular child. recommended by the commenter would sufficient to ensure States’ compliance Section 300.115 already requires each adversely restrict the options available with this requirement. public agency to ensure that a to school personnel for disciplining Further, we believe the enforcement continuum of alternative placements is children with disabilities and options in § 300.604 give the Secretary available to meet the needs of children inadvertently tie the hands of school sufficient means to address a State’s with disabilities for special education personnel in responding quickly and noncompliance with the requirements and related services. We believe this effectively to serious child behaviors in § 300.114(b)(2). Section 300.604 adequately addresses the commenter’s and in creating safe classrooms for all describes the enforcement options concern. children. available to the Secretary if the The process for determining the Changes: None. Secretary determines that a State needs educational placement for children with assistance or intervention implementing low-incidence disabilities (including Additional Requirement—State Funding the requirements of Part B of the Act, or children who are deaf, hard of hearing, Mechanism (§ 300.114(b)) that there is a substantial failure to or deaf-blind) is the same process used Comment: One commenter stated that comply with any condition of an SEA’s for determining the educational § 300.114(b) does not adequately or LEA’s eligibility under Part B of the placement for all children with address the requirements for funding Act. Enforcement options available to disabilities. That is, each child’s mechanisms relative to the LRE the Secretary include, among others, educational placement must be requirements and requested that note 89 recovery of funds or withholding, in determined on an individual case-by- of the Conf. Rpt. be included in the whole or in part, any further payments case basis depending on each child’s regulations. to the State under Part B of the Act. unique educational needs and Discussion: Section 300.114(b) Changes: None. circumstances, rather than by the child’s incorporates the language from section 612(a)(5)(B) of the Act and prohibits Continuum of Alternative Placements category of disability, and must be based States from maintaining funding (§ 300.115) on the child’s IEP. We believe the LRE provisions are sufficient to ensure that mechanisms that violate the LRE Comment: One commenter public agencies provide low-incidence provisions. We do not believe it is recommended revising § 300.115 so that children with disabilities access to necessary to provide additional only the specific allowable alternative appropriate educational programming clarification in the regulations. While settings listed in the definition of and services in the educational setting we agree with the commenter that note special education in new § 300.39 appropriate to meet the needs of the 89 of the Conf. Rpt. makes clear (proposed § 300.38) (i.e., classroom, child in the LRE. Congress’ intent that State funding home, hospitals, institutions) are Changes: None. mechanisms support the LRE permitted. Comment: One commenter requested requirements and do not provide an Discussion: Section 300.115 requires that the regulations clarify that children incentive or disincentive for certain each public agency to ensure that a with disabilities who are suspended or placement decisions, we believe the continuum of alternative placements expelled from school are entitled to be requirements in § 300.114(b) accurately (including instruction in regular classes, educated with children who are not capture the essence of the Conf. Rpt. special classes, special schools, home disabled. The commenter stated that and including additional language in instruction, and instruction in hospitalssroberts on PROD1PC70 with RULES this clarification is necessary to reduce this paragraph is not needed. and institutions) is available to meet the the use of home instruction as a Changes: None. needs of children with disabilities for placement option for these children. Comment: One commenter urged the special education and related services. Discussion: The Act does not require Department to impose financial The list of placement options in this that children with disabilities sanctions on States that continue to base section only expands the settings VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46587 mentioned in new § 300.39 (proposed disabilities from the regular education meet the unique educational needs of § 300.38) by recognizing the various environment only occurs if the nature or children with disabilities. This types of classrooms and settings for severity of the disability is such that requirement for the continuum classrooms in which special education education in regular classes with the use reinforces the importance of the is provided. This continuum of of supplementary aids and services individualized inquiry, not a ‘‘one size alternative placements is intended to cannot be achieved satisfactorily. fits all’’ approach, in determining what ensure that a child with a disability is Changes: None. placement is the LRE for each child served in a setting where the child can Comment: A few commenters with a disability. The options on this be educated successfully in the LRE. recommended revising § 300.116 to continuum must include the alternative Changes: None. require that children with disabilities placements listed in the definition of Comment: One commenter suggested have access to, and make progress in, special education under § 300.38 adding language to the regulations to the general curriculum, and that (instruction in regular classes, special clarify that difficulty recruiting and children receive the special education classes, special schools, home hiring qualified special education and related services included in their instruction, and instruction in hospitals teachers does not relieve an LEA of its IEPs. and institutions). These options must be obligation to ensure a continuum of Discussion: The issues raised by the available to the extent necessary to alternative placements and to offer a full commenters are already addressed implement the IEP of each child with a range of services to meet the needs of elsewhere in the regulations. The IEP disability. The group determining the children with disabilities. requirements in § 300.320(a), consistent placement must select the placement Discussion: We do not believe it is with section 614(d) of the Act, clarify option on the continuum in which it necessary to include the language that children with disabilities must be determines that the child’s IEP can be suggested by the commenter, because provided special education and related implemented in the LRE. Any § 300.116 is sufficiently clear that services and needed supplementary aids alternative placement selected for the placement decisions must be based on and services to enable them to be child outside of the regular educational the individual needs of each child with involved in and make progress in the environment must include appropriate a disability. Public agencies, therefore, general curriculum. In addition, opportunities for the child to interact must not make placement decisions § 300.323(c)(2) requires that, as soon as with nondisabled peers, to the extent based on a public agency’s needs or possible following the development of appropriate to the needs of the children, available resources, including budgetary an IEP, special education and related consistent with § 300.114(a)(2)(i). considerations and the ability of the services are made available to the child in accordance with the child’s IEP. We Because placement decisions must be public agency to hire and recruit determined on an individual case-by- qualified staff. believe that these regulations adequately address the commenters’ concerns, and case basis depending on each child’s Changes: None. unique educational needs and Comment: A few commenters that no further clarification is necessary. Changes: None. circumstances and based on the child’s recommended revising § 300.115(a) to Comment: One commenter stated that IEP, we do not believe it is appropriate clarify that the continuum of alternative the placement requirements in § 300.116 to require in the regulations that the placements must be available to eligible encourage school districts to assign a continuum of alternative placements preschool children with disabilities. child with a disability to a particular include a progressively more intensive Discussion: It is not necessary to place or setting, rather than providing a level of individualized scientifically revise § 300.115(a) in the manner continuum of increasingly based instruction and related services as suggested by the commenters. Section individualized and intensive services. suggested by the commenter. 300.116 clearly states that the requirements for determining the The commenter suggested requiring that Changes: None. educational placement of a child with a the continuum of alternative placements Comment: We received a number of disability include preschool children include a progressively more intensive comments regarding the phrase, ‘‘unless with disabilities and that such decisions level of individualized, scientifically the parent agrees otherwise’’ in must be made in conformity with the based instruction and related services, proposed § 300.116(b)(3) and (c). As LRE provisions in §§ 300.114 through both with increased time and lower proposed, § 300.116(b)(3) requires the 300.118. This includes ensuring that a pupil-teacher ratio, in addition to child’s placement to be as close as continuum of services is available to regular instruction with supplementary possible to the child’s home, ‘‘unless the meet the needs of children with aids and services. parent agrees otherwise;’’ and disabilities for special education and Discussion: The overriding rule in § 300.116(c) requires that, unless the related services. § 300.116 is that placement decisions for child’s IEP requires some other Changes: None. all children with disabilities must be arrangement, the child must be made on an individual basis and ensure educated in the school that he or she Placements (§ 300.116) that each child with a disability is would attend if nondisabled, ‘‘unless Comment: One commenter educated in the school the child would the parent agrees otherwise.’’ Many recommended the regulations clarify attend if not disabled unless the child’s commenters requested removing the that the regular class must always be IEP requires some other arrangement. phrase ‘‘unless the parent agrees considered the first placement option. However, the Act does not require that otherwise,’’ because it is not included in Discussion: We do not believe it is every child with a disability be placed section 612(a)(5) of the Act and is not necessary to include the clarification in the regular classroom regardless of necessary to clarify that a parent may recommended by the commenter. individual abilities and needs. This place his or her child in a charter, Section 300.116 clarifies that placement recognition that regular class placement magnet, or other specialized schoolsroberts on PROD1PC70 with RULES decisions must be made in conformity may not be appropriate for every child without violating the LRE requirements. with the LRE provisions, and with a disability is reflected in the Other commenters suggested removing § 300.114(a)(2) already requires that requirement that LEAs make available a the phrase and clarifying that a decision special classes, separate schooling or range of placement options, known as a by the child’s parent to send the child other removal of children with continuum of alternative placements, to to a charter, magnet, or other specialized VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46588 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations school is not a violation of the LRE administrative requirements. The Discussion: Historically, we have requirements. Department has consistently maintained referred to ‘‘placement’’ as points along Several commenters stated that that a child with a disability should be the continuum of placement options including the phrase undermines the educated in a school as close to the available for a child with a disability, statutory requirement for children with child’s home as possible, unless the and ‘‘location’’ as the physical disabilities to be placed in the LRE services identified in the child’s IEP surrounding, such as the classroom, in based on their IEPs and allows more require a different location. Even though which a child with a disability receives restrictive placements based on parental the Act does not mandate that a child special education and related services. choice. Many commenters interpreted with a disability be educated in the Public agencies are strongly encouraged this phrase to mean that placement is a school he or she would normally attend to place a child with a disability in the matter of parental choice even in public if not disabled, section 612(a)(5)(A) of school and classroom the child would school settings and stated that a child’s the Act presumes that the first attend if the child did not have a LRE rights should not be overridden by placement option considered for each disability. However, a public agency parental choice. One commenter stated child with a disability is the regular may have two or more equally that the phrase might intimidate parents classroom in the school that the child appropriate locations that meet the into accepting inappropriate would attend if not disabled, with child’s special education and related placements. appropriate supplementary aids and services needs and school A few commenters stated that this services to facilitate such placement. administrators should have the phrase is unnecessary because the Act Thus, before a child with a disability flexibility to assign the child to a already requires parents to be involved can be placed outside of the regular particular school or classroom, provided in placement decisions, and expressed educational environment, the full range that determination is consistent with the concern that including this phrase in of supplementary aids and services that decision of the group determining the regulations could lead to confusion could be provided to facilitate the placement. It also should be noted that, and litigation. One commenter stated child’s placement in the regular under section 615(b)(3) of the Act, a that the phrase suggests that additional classroom setting must be considered. parent must be given written prior consent is required if the parent chooses Following that consideration, if a notice that meets the requirements of to send the child to a charter, magnet, determination is made that a particular § 300.503 a reasonable time before a or other specialized school. child with a disability cannot be public agency implements a proposal or Discussion: The phrase ‘‘unless the educated satisfactorily in the regular refusal to initiate or change the parent agrees otherwise’’ in proposed educational environment, even with the identification, evaluation, or § 300.116(b)(3) and (c) was added to provision of appropriate supplementary educational placement of the child, or clarify that a parent may send the child aids and services, that child could be the provision of FAPE to the child. to a charter, magnet, or other specialized placed in a setting other than the regular Consistent with this notice requirement, school without violating the LRE classroom. parents of children with disabilities mandate. A parent has always had this Although the Act does not require must be informed that the public agency option; a parent who chooses this that each school building in an LEA be is required to have a full continuum of option for the child does not violate the able to provide all the special education placement options, as well as about the LRE mandate as long as the child is and related services for all types and placement options that were actually educated with his or her peers without severities of disabilities, the LEA has an considered and the reasons why those disabilities to the maximum extent obligation to make available a full options were rejected. While public appropriate. However, we agree that this continuum of alternative placement agencies have an obligation under the phrase is unnecessary, confusing, and options that maximize opportunities for Act to notify parents regarding may be misunderstood to mean that its children with disabilities to be placement decisions, there is nothing in parents have a right to veto the educated with nondisabled peers to the the Act that requires a detailed placement decision made by the group extent appropriate. In all cases, explanation in children’s IEPs of why of individuals in § 300.116(a)(1). We placement decisions must be their educational needs or educational will, therefore, remove the phrase. individually determined on the basis of placements cannot be met in the Changes: We have removed the each child’s abilities and needs and location the parents’ request. We believe phrase ‘‘unless the parent agrees each child’s IEP, and not solely on including such a provision would be otherwise’’ in § 300.116(b)(3) and (c). factors such as category of disability, overly burdensome for school Comment: One commenter disagreed severity of disability, availability of administrators and diminish their with the requirement in § 300.116(b)(3) special education and related services, flexibility to appropriately assign a that placements be as close as possible configuration of the service delivery child to a particular school or to the child’s home, stating that the system, availability of space, or classroom, provided that the assignment requirement is administratively administrative convenience. is made consistent with the child’s IEP prohibitive and beyond the scope of the Changes: None. and the decision of the group Act. The commenter stated that it is not Comment: One commenter requested determining placement. possible for school districts to provide clarifying the difference, if any, between Changes: None. classes for children with all types and ‘‘placement’’ and ‘‘location.’’ One Comment: One commenter degrees of disabilities in each school commenter recommended requiring the recommended including in the building. The commenter stated that child’s IEP to include a detailed regulations the Department’s policy that ‘‘placement’’ should be understood as explanation of why a child’s a child’s placement in an educational the set of services outlined in a child’s educational needs cannot be met in the program that is substantially and IEP, and recommended that school location requested by the parent when materially similar to the formersroberts on PROD1PC70 with RULES districts be permitted to provide these the school district opposes the parent’s placement is not a change in placement. services in the school building that is request for services to be provided to the Discussion: As stated by the most administratively feasible. child in the school that the child would commenter, it is the Department’s Discussion: We do not believe the attend if the child did not have a longstanding position that maintaining a requirement imposes unduly restrictive disability. child’s placement in an educational VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46589 program that is substantially and a disability. Placement decisions are Therefore, we will clarify in § 300.117 materially similar to the former made on a case-by-case basis and must that each public agency must ensure placement is not a change in placement. be appropriate for the needs of the that children with disabilities have the We do not believe further clarification is child. The courts have generally supplementary aids and services necessary in the regulations, however, concluded that, if a child with a determined necessary by the child’s IEP as the distinction seems to be commonly disability has behavioral problems that Team for the child to participate in accepted and understood. are so disruptive in a regular classroom nonacademic and extracurricular Changes: None. that the education of other children is services and activities to the maximum Comment: Many commenters significantly impaired, the needs of the extent appropriate to the needs of that suggested requiring a public agency to child with a disability generally cannot child. pay all costs associated with providing be met in that environment. However, Changes: We have added language to FAPE for a child in a private preschool, before making such a determination, § 300.117 to ensure that children with including paying for tuition, LEAs must ensure that consideration disabilities receive the supplementary transportation and such special has been given to the full range of aids and services needed to participate education, related services and supplementary aids and services that in nonacademic and extracurricular supplementary aids and services as the could be provided to the child in the services and activities. child needs, if an inclusive preschool is regular educational environment to the appropriate placement for a child, accommodate the unique needs of the Technical Assistance and Training and there is no inclusive public child with a disability. If the group Activities (§ 300.119) preschool that can provide all the making the placement decision Comment: One commenter requested appropriate services and supports. determines, that even with the provision that the regulations define ‘‘training.’’ Discussion: The LRE requirements in of supplementary aids and services, the Discussion: The Department intends §§ 300.114 through 300.118 apply to all child’s IEP could not be implemented the term ‘‘training,’’ as used in children with disabilities, including satisfactorily in the regular educational § 300.119, to have its generally accepted preschool children who are entitled to environment, that placement would not meaning. Training is generally agreed to FAPE. Public agencies that do not be the LRE placement for that child at be any activity used to enhance one’s operate programs for preschool children that particular time, because her or his skill or knowledge to acquire, maintain, without disabilities are not required to unique educational needs could not be and advance knowledge, skills, and initiate those programs solely to satisfy met in that setting. (See Roncker v. abilities. Given the general the LRE requirements of the Act. Public Walter, 700 F. 2d 1058 (6th Cir. 1983); understanding of the term ‘‘training,’’ agencies that do not have an inclusive Devries v. Fairfax County School Bd., we do not believe it is necessary to public preschool that can provide all the 882 F. 2d 876, 879 (4th Cir. 1989); regulate on this matter. appropriate services and supports must Daniel R.R. v. State Bd. of Educ., 874 F. Changes: None. explore alternative methods to ensure 2d 1036 (5th Cir. 1989); and A.W. v. that the LRE requirements are met. Children in Private Schools Northwest R–1 School Dist., 813 F.2d Examples of such alternative methods 158, 163 (8th Cir. 1987).) Children With Disabilities Enrolled by might include placement options in Changes: None. Their Parents in Private Schools private preschool programs or other community-based settings. Paying for Nonacademic Settings (§ 300.117) General Comments the placement of qualified preschool Comment: One commenter requested Comment: Many comments were children with disabilities in a private that the regulations clarify that children received regarding the parentally-placed preschool with children without with disabilities should receive the private school children with disabilities disabilities is one, but not the only, supplementary aids and services requirements in §§ 300.130 through option available to public agencies to necessary to ensure their participation 300.144. Many commenters supported meet the LRE requirements. We believe in nonacademic and extracurricular the changes to the regulations and the regulations should allow public services and activities. believed the regulations simplify the agencies to choose an appropriate Discussion: Section 300.117, processes for both private schools and option to meet the LRE requirements. consistent with section 612(a)(5) of the public schools. Numerous commenters, However, if a public agency determines Act, requires that children with however, expressed concern regarding that placement in a private preschool disabilities participate in nonacademic the implementation of the private program is necessary as a means of and extracurricular services and school requirements. providing special education and related activities with their nondisabled peers Many of the commenters expressed services to a child with a disability, the to the maximum extent appropriate to concern with the requirement that the program must be at no cost to the parent the needs of the child. The Act places LEAs where private elementary schools of the child. great emphasis on ensuring that and secondary schools are located are Changes: None. children with disabilities are educated, now responsible for child find, Comment: One commenter suggested to the maximum extent appropriate, individual evaluations, and the clarifying that if a child’s behavior in with children who are nondisabled and provision of services for children with the regular classroom significantly are included in nonacademic and disabilities enrolled by their parents in impairs the learning of the child or extracurricular services and activities as private schools located in the LEA. others, that placement would not meet appropriate to the needs of the child. These commenters described the private the child’s needs and would not be We believe the public agency has an school provisions in the Act and the appropriate for that child. obligation to provide a child with a NPRM as burdensome and difficult to Discussion: Although the Act places a disability with appropriate aids, understand.sroberts on PROD1PC70 with RULES strong preference in favor of educating services, and other supports, as Discussion: The revisions to the Act children with disabilities in the regular determined by the IEP Team, if in 2004 significantly changed the classroom with appropriate aids and necessary to ensure the child’s obligation of States and LEAs to supports, a regular classroom placement participation in nonacademic and children with disabilities enrolled by is not appropriate for every child with extracurricular services and activities. their parents in private elementary VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46590 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations schools and secondary schools. Section 612(a)(10)(A) of the Act regarding school requirements in §§ 300.130 612(a)(10)(A) of the Act now requires children enrolled in private schools by through 300.144 for States or LEAs that LEAs in which the private schools are their parents. However, we determined spend State or local funds to provide located, rather than the LEAs in which that including clarification of the special education or related services the parents of such children reside, to statutory language on parentally-placed beyond those required under Part B of conduct child find and provide private school children with disabilities the Act. The Secretary, therefore, cannot equitable services to parentally-placed in these regulations would be helpful. consider alternative compliance with private school children with disabilities. The volume of comments received the parentally-placed private school The Act provides that, in calculating concerning this topic confirm the need provisions in the Act and these the proportionate amount of Federal to regulate in order to clarify the regulations or consider States and LEAs funds under Part B of the Act that must statutory language and to help ensure that use State and local funds to provide be spent on parentally-placed private compliance with the requirements of the services to parentally-placed private school children with disabilities, the Act. school children with disabilities beyond LEAs where the private schools are Changes: None. the required proportionate share of located, after timely and meaningful Comment: Some commenters Federal Part B funds, including consultation with representatives of requested that the regulations provide providing FAPE to such children, to private elementary schools and flexibility to States to provide services have met the statutory and regulatory secondary schools and representatives to parentally-placed private school requirements governing parentally- of parents of parentally-placed private children with disabilities beyond what placed private school children with school children with disabilities, must they would be able to do with the disabilities. States and LEAs must meet conduct a thorough and complete child proportionate share required under the the requirements in the Act and these find process to determine the number of Act. A few of these commenters regulations. parentally-placed children with requested that those States already With regard to the comment disabilities attending private elementary providing an individual entitlement to requesting that the child find and schools and secondary schools located special education and related services or equitable participation requirements for in the LEAs. In addition, the obligation providing a full range of special parentally-placed private school of the LEA to spend a proportionate education services to parentally-placed children with disabilities not apply in amount of funds to provide services to private school children be deemed to States with dual enrollment, there is no children with disabilities enrolled by have met the requirements in §§ 300.130 exception in the Act to the child find their parents in private schools is now through 300.144 and be permitted to and equitable participation based on the total number of children continue the State’s current practices. requirements of section 612(a)(10)(A) for with disabilities who are enrolled in One commenter specifically States that permit dual enrollment of a private schools located in the LEA recommended allowing States that child at a parent’s discretion. Therefore, whether or not the children and their provide additional rights or services to there is no basis to regulate to provide parents reside in the LEA. parentally-placed private school such an exception. It would be a matter We believe these regulations and the children with disabilities (including of State or local discretion to decide additional clarification provided in our FAPE under section 612 of the Act and whether to have a dual enrollment responses to comments on §§ 300.130 the procedural safeguards under section policy and, if established, how it would through 300.144 will help States and 615 of the Act), the option of requesting be implemented. Whether dual LEAs to better understand their that the Secretary consider alternate enrollment alters the rights of obligations in serving children with compliance with these requirements parentally-placed private school disabilities placed by their parents in that would include evidence and children with disabilities under State private elementary schools and supporting documentation of alternate law is a State matter. There is nothing, secondary schools. In addition, the procedures under State law to meet all however, in Part B of the Act that would Department has provided additional the requirements in §§ 300.130 through prohibit a State from requiring dual guidance on implementing the 300.144. enrollment as a condition for a parentally-placed private school A few commenters requested that the parentally-placed private school child requirements on the Department’s Web child find and equitable participation with a disability to be eligible for site. We also are including in these requirements should not apply in States services from a public agency. As long regulations Appendix B to Part 300— with dual enrollment provisions where as States and LEAs meet the Proportionate Share Calculation to children with disabilities who are requirements in §§ 300.130 through assist LEAs in calculating the parentally-placed in private elementary 300.144, the local policy covering proportionate amount of Part B funds schools or secondary schools are also enrollment is a matter of State and local that they must expend on parentally- enrolled in public schools for special discretion. placed private school children with education and have IEPs and retain their Changes: None. disabilities attending private elementary due process rights. Comment: Several commenters schools and secondary schools located Discussion: The Act in no way expressed concern regarding the in the LEA. prohibits States or LEAs from spending applicability of the child find and Changes: We have added a reference additional State or local funds to equitable participation requirements in to Appendix B in § 300.133(b). provide special education or related §§ 300.130 through 300.144 for children Comment: Several commenters services for parentally-placed private with disabilities who reside in one State expressed concern that §§ 300.130 school children with disabilities in and are enrolled by their parents in through 300.144 include requirements excess of those required in § 300.133 private elementary schools or secondary that go beyond the Act and and section 612(a)(10)(A) of the Act, schools located in another State. Thesesroberts on PROD1PC70 with RULES recommended that any requirement consistent with State law or commenters recommended that the beyond what is statutory be removed administrative procedures. The Act, regulations clarify whether the LEA in from these regulations. however, does not provide the Secretary the State where the private elementary Discussion: In general, the regulations with the authority to waive, in whole or school or secondary school is located or track the language in section in part, the parentally-placed private the LEA in the State where the child VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46591 resides is responsible for conducting carrying out the child find requirements the definition of elementary school in child find (including individual in this section, include parentally- § 300.13. evaluations and reevaluations), and placed private school children who Definition of Parentally-Placed Private providing and paying for equitable reside in the State other than where the School Children With Disabilities services for children who are enrolled private schools they attend are located. (§ 300.130) by their parents in private elementary Comment: A few commenters schools or secondary schools. recommended the regulations clarify the Comment: A few commenters Discussion: Section 612(a)(10)(A)(i)(II) LEA’s obligation under §§ 300.130 recommended removing ‘‘or facilities’’ of the Act provides that the LEA where through 300.144 regarding child find from the definition of parentally-placed the private elementary schools and and equitable participation for children private school children because it is not secondary schools are located, after from other countries enrolled in private defined in the Act or the regulations. timely and meaningful consultation elementary schools and secondary Another commenter recommended with private school representatives, is schools by their parents. including a definition of ‘‘facilities.’’ responsible for conducting the child Discussion: The obligation to consider Discussion: Under section find process to determine the number of children with disabilities for equitable 612(a)(10)(A) of the Act, the obligation parentally-placed children with services extends to all children with to conduct child find and provide disabilities attending private schools disabilities in the State who are enrolled equitable services extends to children located in the LEA. We believe this by their parents in private schools who are enrolled by their parents in responsibility includes child find for within each LEA’s jurisdiction. private elementary schools and children who reside in other States but Changes: None. secondary schools. This obligation also who attend private elementary schools Comment: Several commenters applies to children who have been and secondary schools located in the recommended the regulations clarify the enrolled by their parents in private LEA, because section 612(a)(10)(A)(i)(II) applicability of the child find and facilities if those facilities are of the Act is clear about which LEA is equitable participation requirements in elementary schools or secondary responsible for child find and the Act §§ 300.130 through 300.144 for children schools, as defined in subpart A of the does not provide an exception for regulations. Because facilities that meet with disabilities, aged three through children who reside in one State and the definition of elementary school or five, enrolled by their parents in private attend private elementary schools and secondary school are covered under this preschools or day care programs. Many secondary schools in other States. section, we believe it is important to Under section 612(a)(10)(A)(i) of the commenters recommended the regulations clarify that preschool retain the reference to facilities in these Act, the LEA where the private children with disabilities should be regulations. We will, however, revise elementary schools and secondary counted in determining the § 300.130 to clarify that children with schools are located, in consultation with proportionate share of funds available to disabilities who are enrolled by their private school officials and serve children enrolled in private parents in facilities that meet the representatives of parents of parentally- elementary schools by their parents. definition of elementary school in placed private school children with disabilities, also is responsible for Discussion: If a private preschool or § 300.13 or secondary school in new determining and paying for the services day care program is considered an § 300.36 (proposed § 300.35) would be to be provided to parentally-placed elementary school, as defined in considered parentally-placed private private school children with disabilities. § 300.13, the child find and equitable school children with disabilities. We believe this responsibility extends to services participation requirements in Changes: Section 300.130 has been children from other States who are §§ 300.130 through 300.144, consistent revised to clarify that parentally-placed enrolled in a private school located in with section 612(a)(10) of the Act, apply private school children with disabilities the LEA, because section to children with disabilities aged three means children with disabilities 612(a)(10)(A)(i) of the Act clarifies that through five enrolled by their parents in enrolled by their parents in private, the LEA where the private schools are such programs. Section 300.13, including religious, schools or facilities located is responsible for spending a consistent with section 602(6) of the that meet the definition of an proportionate amount of its Federal Part Act, defines an elementary school as a elementary school in § 300.13 or B funds on special education and nonprofit institutional day or residential secondary school in § 300.36. related services for children enrolled by school, including a public elementary Child Find for Parentally-Placed Private their parents in the private schools charter school, which provides School Children With Disabilities located in the LEA. The Act does not elementary education, as determined (§ 300.131) provide an exception for out-of-State under State law. We believe it is children with disabilities attending a important to clarify in the regulations Comment: A few commenters private school located in the LEA and, that children aged three through five are recommended permitting the LEA therefore, out-of-State children with considered parentally-placed private where private schools are located to disabilities must be included in the school children with disabilities request reimbursement from the LEA group of parentally-placed children enrolled in private elementary schools where the child resides for the cost of with disabilities whose needs are only if they are enrolled in private conducting an individual evaluation, as considered in determining which schools that meet the definition of may be required under the child find parentally-placed private school elementary school in § 300.13. requirements in § 300.131. children with disabilities will be served Changes: We have added a new One commenter recommended that and the types and amounts of services § 300.133(a)(2)(ii) to clarify that children the LEA where private schools are to be provided. aged three through five are considered located be responsible for locating andsroberts on PROD1PC70 with RULES Changes: We have added a new to be parentally-placed private school identifying children with disabilities paragraph (f) to § 300.131 clarifying that children with disabilities enrolled by enrolled by their parents in private each LEA where private, including their parents in private, including schools and the LEA where the children religious, elementary schools and religious, elementary schools, if they are reside be responsible for conducting secondary schools are located must, in enrolled in a private school that meets individual evaluations. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46592 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations Discussion: Section 300.131, expended for child find, including elementary schools and secondary consistent with section 612(a)(10)(A)(i) individual evaluations, to be deducted schools outside the district of residence, of the Act, requires that the LEA where from the required amount of funds to be and who are determined by the LEA private elementary schools and expended on equitable services for where the private schools are located, secondary schools in which the child is parentally-placed private school through its child find process, to be enrolled are located, not the LEA where children with disabilities. children with disabilities eligible for the child resides, is responsible for Discussion: The requested changes special education and related services, conducting child find, including an would be inconsistent with the Act. would have no knowledge of the special individual evaluation for a child with a There is a distinction under the Act education and related services available disability enrolled by the child’s parent between the obligation to conduct child for their children if they choose to in a private elementary school or find activities, including individual attend a public school in their district secondary school located in the LEA. evaluations, for parentally-placed of residence. A few commenters The Act specifies that the LEA where private school children with disabilities, suggested clarifying the obligation of the the private schools are located is and the obligation to use an amount of LEA where the private school is located responsible for conducting both the funds equal to a proportionate amount to provide the district of residence the child find process and the initial of the Federal Part B grant flowing to results of an evaluation and eligibility evaluation. Therefore, the LEA where LEAs to provide special education and determination of the parentally-placed private schools are located may not seek related services to parentally-placed private school child. reimbursement from the LEA of private school children with disabilities. A few commenters recommended that residence for the cost of conducting the The obligation to conduct child find for the parent of a child with a disability evaluation or to request that the LEA of parentally-placed private school identified through the child find process residence conduct the evaluation. children, including individual in § 300.131 be provided with However, the LEA where the private evaluations, is independent of the information regarding an appropriate elementary school or secondary school services provision. Further, educational program for the child. is located has options as to how it meets § 300.131(d), consistent with section Discussion: The Act is silent on the its responsibilities. For example, the 612(a)(10)(A)(ii)(IV) of the Act, clarifies obligation of officials of the LEA where LEA may assume the responsibility that the costs of child find activities for private elementary schools and itself, contract with another public parentally-placed private school secondary schools are located to share agency (including the public agency of children, including individual personally identifiable information, residence), or make other arrangements. evaluations, may not be considered in such as individual evaluation Changes: None. determining whether the LEA has spent information, with officials of the LEA of Comment: One commenter an appropriate amount on providing the parent’s residence. We believe that recommended permitting a parent who special education and related services to the LEA where the private schools are enrolled a child in a private elementary parentally-placed private school located has an obligation to protect the school or secondary school the option of children with disabilities. privacy of children placed in private not participating in child find required Changes: None. schools by their parents. We believe that under § 300.131. Comment: One commenter requested when a parentally-placed private school Discussion: New § 300.300(e)(4) clarifying whether an LEA may exclude child is evaluated and identified as a clarifies that parents who enroll their children suspected of having certain child with a disability by the LEA in children in private elementary schools disabilities, such as those with specific which the private school is located, and secondary schools have the option learning disabilities, in conducting parental consent should be required of not participating in an LEA’s child individual evaluations of suspected before such personally identifiable find activities required under § 300.131. children with disabilities enrolled in information is released to officials of the As noted in the Analysis of Comments private schools by their parents. LEA of the parent’s residence. and Changes section for subpart D, once Discussion: The LEA where the Therefore, we are adding a new parents opt out of the public schools, private elementary schools and paragraph (b)(3) to § 300.622 to make States and school districts do not have secondary schools are located must this clear. We explain this revision in the same interest in requiring parents to identify and evaluate all children more detail in the discussion of agree to the evaluation of their children suspected of having disabilities as comments under § 300.622. as they do for children enrolled in defined under section 602(3) of the Act. We believe the regulations adequately public schools, in light of the public LEAs may not exclude children ensure that parents of children enrolled agencies’ obligation to educate public suspected of having certain disabilities, in private schools by their parents, who school children with disabilities. We such as those with specific learning are identified as children with further indicate in the discussion of disabilities, from their child find disabilities through the child find subpart D that we have added new activities. The Department recommends process, receive information regarding § 300.300(e)(4) (proposed § 300.300(d)) that LEAs and private elementary an appropriate educational program for to clarify that if the parent of a child schools and secondary schools consult their children. Section 300.138(b) who is home schooled or placed in a on how best to implement the State’s provides that each parentally-placed private school by the child’s parent at evaluation criteria and the requirements private school child with a disability the parent’s own expense does not under this part for identifying children who has been designated to receive provide consent for an initial evaluation with specific learning disabilities equitable services must have a services or reevaluation, the public agency may enrolled in private schools by their plan that describes the specific not use the due process procedures in parents. This is explained in more detail education and related services that the section 615 of the Act and the public in the discussion of comments under LEA where the private school is locatedsroberts on PROD1PC70 with RULES agency is not required to consider the § 300.307. has determined it will make available to child for equitable services. Changes: None. the child and the services plan must, to Changes: None. Comment: A few commenters the extent appropriate, meet the IEP Comment: Several commenters expressed concern that parents who content, development, review and recommended permitting amounts place their children in private revision requirements described in VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46593 section 614(d) of the Act, or, when for the release of information about 612(a)(10)(A)(ii)(III) of the Act, requires appropriate, for children aged three parentally-placed private school that, in carrying out child find for through five, the IFSP requirements children between LEAs; therefore, as a parentally-placed private school described in section 636(d) of the Act as practical matter, one LEA may not know children, SEAs and LEAs must to the services that are to be provided. that a parent also requested an undertake activities similar to those Furthermore, the LEA where the evaluation from another LEA. However, activities undertaken for their publicly private school is located must, pursuant we do not believe that the child’s best enrolled or publicly-placed children. to § 300.504(a) and section 615(d) of the interests would be well-served if the This would generally include, but is not Act, provide the parent a copy of the parents requested evaluations of their limited to, such activities as widely procedural safeguards notice upon child by the resident school district and distributing informational brochures, conducting the initial evaluation. the LEA where the private school is providing regular public service Changes: We have added a new located, even though these evaluations announcements, staffing exhibits at paragraph (b)(3) to § 300.622 to require are conducted for different purposes. A health fairs and other community parental consent for the disclosure of practice of subjecting a child to repeated activities, and creating direct liaisons records of parentally-placed private testing by separate LEAs in close with private schools. Activities for child school children between LEAs. proximity of time may not be the most find must be completed in a time period Comment: A few commenters stated effective or desirable way of ensuring comparable to those activities for public that § 300.131 does not address which that the evaluation is a meaningful school children. This means that LEAs LEA has the responsibility for measure of whether a child has a must conduct child find activities, reevaluations. disability or of providing an appropriate including individual evaluations, for Discussion: The LEA where the assessment of the child’s educational parentally-placed private school private schools are located is needs. children within a reasonable period of responsible for conducting Changes: None. time and without undue delay, and may reevaluations of children with Comment: Some commenters not wait until after child find for public disabilities enrolled by their parents in requested the regulations clarify which school children is conducted. In private elementary schools and LEA (the LEA of residence or the LEA addition, evaluations of all children secondary schools located within the where the private elementary schools or suspected of having disabilities under LEA. Reevaluation is a part of the LEA’s secondary schools are located) is Part B of the Act, regardless of whether child find responsibility for parentally- responsible for offering FAPE to they are enrolled by their parents in placed private school children under children identified through child find private elementary schools or secondary section 612(a)(10)(A) of the Act. under § 300.131 so that parents can schools, must be conducted in Changes: None. make an informed decision regarding accordance with the requirements in Comment: One commenter expressed their children’s education. §§ 300.300 through 300.311, consistent concern that the regulations permit a Discussion: If a determination is made with section 614(a) through (c) of the parent to request an evaluation from the by the LEA where the private school is Act, which describes the procedures for LEA of residence at the same time the located that a child needs special evaluations and reevaluations for all child is being evaluated by the LEA education and related services, the LEA children with disabilities. We believe where the private elementary school or where the child resides is responsible the phrase ‘‘activities similar’’ is secondary school is located, resulting in for making FAPE available to the child. understood by SEAs and LEAs and, two LEAs simultaneously conducting If the parent makes clear his or her therefore, it is not necessary to regulate evaluations of the same child. intention to keep the child enrolled in on the meaning of the phrase. Discussion: We recognize that there the private elementary school or Changes: None. could be times when parents request secondary school located in another that their parentally-placed child be LEA, the LEA where the child resides Provision of Services for Parentally- evaluated by different LEAs if the child Placed Private School Children With need not make FAPE available to the is attending a private school that is not Disabilities—Basic Requirement child. We do not believe that a change in the LEA in which they reside. For (§ 300.132) to the regulations is necessary, as example, because most States generally § 300.201 already clarifies that the Comment: Several commenters allocate the responsibility for making district of residence is responsible for expressed confusion regarding which FAPE available to the LEA in which the making FAPE available to the child. LEA is responsible for paying for the child’s parents reside, and that could be Accordingly, the district in which the equitable services provided to a a different LEA from the LEA in which private elementary or secondary school parentally-placed private elementary the child’s private school is located, is located is not responsible for making school or secondary school child, the parents could ask two different LEAs to FAPE available to a child residing in district of the child’s residence or the evaluate their child for different another district. LEA where the private school is located. purposes at the same time. Although Changes: None. Discussion: We believe § 300.133, there is nothing in this part that would Comment: One commenter requested consistent with section 612(a)(10)(A) of prohibit parents from requesting that clarification of the term ‘‘activities the Act, is sufficiently clear that the their child be evaluated by the LEA similar’’ in § 300.131(c). Another LEA where the private elementary responsible for FAPE for purposes of commenter recommended clarifying schools and secondary schools are having a program of FAPE made that these activities include, but are not located is responsible for paying for the available to the child at the same time limited to, activities relating to equitable services provided to a that the parents have requested that the evaluations and reevaluations. One parentally-placed private elementary LEA where the private school is located commenter requested that children with school or secondary school child. Thesesroberts on PROD1PC70 with RULES evaluate their child for purposes of disabilities parentally-placed in private provisions provide that the LEA where considering the child for equitable schools be identified and evaluated as the private elementary and secondary services, we do not encourage this quickly as possible. schools are located must spend a practice. We note that new Discussion: Section 300.131(c), proportionate amount of its Federal § 300.622(b)(4) requires parental consent consistent with section funds available under Part B of the Act VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46594 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations for services for children with disabilities as the Department does not have a placed private school children with enrolled by their parents in private programmatic or regulatory need to disabilities with funds provided under elementary schools and secondary collect this information at this time. the Act and (2) LEAs no longer have the schools located in the LEA. The Act Section 300.644 permits the SEA to option of using local funds equal to, and does not permit an exception to this include in its annual report of children in lieu of, the Federal pro-rated share requirement. No further clarification is served those parentally-placed private amount. This commenter recommended needed. school children who are eligible under that LEAs continue to be allowed to use Changes: None. the Act and receive special education or local funds for administrative Comment: One commenter related services. We believe this is convenience. recommended the regulations clarify sufficient to meet the Department’s need Discussion: The commenter’s which LEA in the State is responsible to collect data on this group of children interpretation is correct. The Act added for providing equitable services to and we do not wish to place an the supplement, not supplant parentally-placed private school unnecessary data collection and requirement in section children with disabilities who attend a paperwork burden on States. 612(a)(10)(A)(i)(IV), which is included private school that straddles two LEAs Changes: None. in § 300.133(d). This requirement in the State. provides that State and local funds may Discussion: The Act does not address Expenditures (§ 300.133) supplement, but in no case supplant the situations where a private school Comment: One commenter requested proportionate amount of the Federal straddles more than one LEA. However, the regulations clarify whether an LEA Part B funds that must be expended the Act does specify that the LEA in must spend its entire proportionate under this provision. Prior to the change which the private school is located is share for parentally-placed private in the Act, if a State was spending more responsible for providing special school children with disabilities by the than the Federal proportional share of education to children with disabilities end of a fiscal year or could carry over funds from State or local funds, then the placed in private schools by their any remaining funds into the next fiscal State would not have to spend any parents, consistent with the number of year. Federal Part B funds. That is no longer such children and their needs. In Discussion: We agree with the permissible under the Act. situations where more than one LEA commenter that a provision should be Changes: None. potentially could assume the included in these regulations to clarify Comment: A few commenters responsibility of providing equitable that, if an LEA has not expended for requested revising § 300.133 to include services, the SEA, consistent with its equitable services all of the home-schooled children with general supervisory responsibility, proportionate amount of Federal funds disabilities in the same category as determines which LEA in the State is to be provided for parentally-placed parentally-placed private school responsible for ensuring the equitable private school children with disabilities children with disabilities. participation of children with by the end of the fiscal year for which Discussion: Whether home-schooled disabilities attending that private Congress appropriated the funds, the children with disabilities are considered school. We do not believe that the LEA must obligate the remaining funds parentally-placed private school situation is common enough to warrant for special education and related children with disabilities is a matter left a change in the regulations. services (including direct services) to to State law. Children with disabilities Changes: None. parentally-placed private school in home schools or home day cares must Comment: A few commenters children with disabilities during a carry- be treated in the same way as other recommended revising the heading for over period of one additional year. parentally-placed private school § 300.132(b) to clarify that LEAs, not Changes: A new paragraph (a)(3) has children with disabilities for purposes SEAs, are responsible for developing been added to § 300.133 to address the of Part B of the Act only if the State service plans. carry over of funds not expended by the recognizes home schools or home day Discussion: We agree with the end of the fiscal year. cares as private elementary schools or commenters that the heading for Comment: None. secondary schools. § 300.132(b) should be changed to Discussion: It has come to our Changes: None. accurately reflect the requirement and to attention that there is some confusion among States and LEAs between the Consultation (§ 300.134) avoid confusion. Changes: We have revised the heading count of the number of children with Comment: Some commenters for § 300.132(b) by removing the disabilities receiving special education recommended requiring, in § 300.134(e), reference to SEA responsibility. and related services as required under that the LEA include, in its written Comment: One commenter requested section 618 of the Act, and the explanation to the private school, its requiring in § 300.132(c) that data on requirement under section reason whenever: (1) The LEA does not parentally-placed private school 612(a)(10)(A)(i)(II) of the Act that each provide services by a professional children with disabilities be submitted LEA conduct an annual count of the directly employed by that LEA to to the Department. Another commenter number of parentally-placed private parentally-placed private school agreed, stating that the data should be school children with disabilities children with a disability when submitted the same day as the annual attending private schools in the LEA. requested to do so by private school child count. We will, therefore, revise the heading officials; and (2) the LEA does not Discussion: The purpose of the child (child count) for § 300.133(c) and the provide services through a third party count under § 300.132(c) is to determine regulatory language in § 300.133(c) to provider when requested to do so by the the amount of Federal funds that the avoid any confusion regarding the private school officials. LEA must spend on providing special requirements in paragraph (c). Discussion: Section 300.134(e)sroberts on PROD1PC70 with RULES education and related services to Changes: Section 300.133(c) has been incorporates the language from section parentally-placed private school revised as described above. 612(a)(10)(A)(iii)(V) of the Act and children with disabilities in the next Comment: One commenter requires the LEA to provide private fiscal year. We are not requiring States interpreted § 300.133(d) to require that: school officials with a written to submit these data to the Department (1) LEAs provide services to parentally- explanation of the reasons why the LEA VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46595 chose not to provide services directly or not engage in meaningful consultation a private school official submit a through contract. We do not believe that with the LEA. complaint to the SEA using the the additional language suggested by the Discussion: Section 300.136, procedures in §§ 300.151 through commenter is necessary because we consistent with section 612(a)(10)(A)(v) 300.153. view the statutory language as sufficient of the Act, provides that a private school official has the right to complain to the Equitable Services Determined to ensure that the LEA meets its SEA that the LEA did not engage in (§ 300.137) obligation to provide private school officials a written explanation of any consultation that was meaningful and Comment: One commenter reason why the LEA chose not to timely, or did not give due recommended removing § 300.137(a), provide services directly or through a consideration to the views of the private stating it is discriminatory and that contract. school official. The provisions in the parentally-placed private school Changes: None. Act and the regulations apply to the children must receive the same amount responsibilities of the SEA and its LEAs of services as children with disabilities Written Affirmation (§ 300.135) in public schools. and not to private schools or entities. Comment: Several commenters Because the requirements of the Act do Discussion: Section 300.137(a) reflects recommended requiring LEAs to not apply to private schools, we do not the Department’s longstanding policy, forward the written affirmation to the believe requiring SEAs to permit an LEA consistent with section 612(a)(10) of the SEA, because this information is to submit a complaint to the SEA Act, and explicitly provides that important for the SEA to exercise alleging that representatives of the children with disabilities enrolled in adequate oversight over LEAs with private schools did not consult in a private schools by their parents have no respect to the participation of private meaningful way with the LEA would individual entitlement to receive some school officials in the consultation serve a meaningful purpose. The or all of the special education and process. equitable services made available under related services they would receive if Discussion: Section 300.135, Part B of the Act are a benefit to the enrolled in the public schools. Under regarding written affirmation, tracks the parentally-placed private school the Act, LEAs only have an obligation language in section 612(a)(10)(A)(iv) of children and not services provided to to provide parentally-placed private the Act. Including a requirement in the the private schools. school children with disabilities an regulations that the LEA must submit a Changes: None. opportunity for equitable participation copy of signed written affirmations to Comment: Several commenters in the services funded with Federal Part the SEA would place reporting burdens recommended revising § 300.136 to B funds that the LEA has determined, on the LEA that are not required by the allow States to determine the most after consultation, to make available to Act and that we do not believe are appropriate procedures for a private its population of parentally-placed warranted in this circumstance. We school official to submit a complaint to private school children with disabilities. expect that in most circumstances the SEA that an LEA did not engage in LEAs are not required to spend more private school officials and LEAs will consultation that was meaningful and than the proportionate Federal share on have cooperative relationships that will timely, or did not give due those services. not need State involvement. If private consideration to the views of the private Changes: None. school officials believe that there was school officials. Many of these Equitable Services Provided (§ 300.138) not meaningful consultation, they may commenters stated that requiring such raise that issue with the SEA through complaints be filed pursuant to the State Comment: Several commenters the procedures in § 300.136. However, complaint procedures in §§ 300.151 requested clarifying whether the there is nothing in the Act or these through 300.153 is not required by the requirement in § 300.138(a) that services regulations that would preclude a State Act and recommended we remove this provided to parentally-placed private from requiring LEAs to submit a copy of requirement. school children with disabilities be the written affirmation obtained Discussion: We agree with the provided by personnel meeting the same pursuant to § 300.135, in meeting its commenters that section standards (i.e., highly qualified teacher general supervision responsibilities 612(a)(10)(A)(v) of the Act does not requirements) as personnel providing under § 300.149 or as a part of its stipulate how a private school official services in the public schools applies to monitoring of LEAs’ implementation of must submit a complaint to the SEA that private school teachers who are Part B of the Act as required in the LEA did not engage in consultation contracted by the LEA to provide § 300.600. Consistent with that was meaningful and timely, or did equitable services. § 300.199(a)(2) and section 608(a)(2) of not give due consideration to the views Discussion: As discussed in the the Act, a State that chooses to require of the private school official. We also Analysis of Comments and Changes its LEAs to submit copies of written agree with the commenters that the SEA section, in the response to comments on affirmations to the SEA beyond what is should have flexibility to determine § 300.18, it is the Department’s position required in § 300.135 would have to how such complaints will be filed with that the highly qualified special identify, in writing, to the LEAs located the State. We will, therefore, revise education teacher requirements do not in the State and to the Secretary, that § 300.136(a) to remove the requirement apply to teachers hired by private such rule, regulation, or policy is a that private school officials must file a elementary schools and secondary State-imposed requirement that is not complaint with the SEA under the State schools. This includes teachers hired by required by Part B of the Act or these complaint procedures in §§ 300.151 private elementary schools and regulations. through 300.153. States may, if they so secondary schools who teach children Changes: None. choose, use their State complaint with disabilities. Further, it is the procedures under §§ 300.151 through Department’s position that the highly Compliance (§ 300.136)sroberts on PROD1PC70 with RULES 300.153 as the means for a private qualified special education teacher Comment: One commenter school to file a complaint under requirements also do not apply to recommended revising § 300.136 to § 300.136. private school teachers who provide permit an LEA to submit a complaint to Changes: Section 300.136 has been equitable services to parentally-placed the State if private school officials do revised to remove the requirement that private school children with disabilities. VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
  • 46596 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations In addition to the revision we are children with disabilities would be the statement in the preamble to the making to new § 300.18(h) (proposed required to develop a services plan and NPRM that services should be provided § 300.18(g)) to make this position clear, an IEP. on-site unless there is a compelling we also will revise § 300.138(a)(1) to Discussion: We do not believe it is rationale to provide services off-site. A clarify that private elementary school appropriate to clarify in the regulations few of these commenters stated that the and secondary school teachers who are that the IEP can serve as the services Act does not indicate a preference for providing equitable services to plan because, as stated elsewhere in this one location of services over another parentally-placed private school preamble, a services plan should only and the Department has no authority to children with disabilities do not have to describe the specific special education provide such a strong comment on this meet the highly qualified special and related services offered to a issue. education teacher requirements. parentally-placed private school child Discussion: Services offered to Changes: We have revised with a disability designated to receive parentally-placed private school § 300.138(a)(1) as indicated. services. We believe that using an IEP in children with disabilities may be Comment: A few commenters lieu of a services plan for these children provided on-site at a child’s private requested clarifying the process for may not be appropriate in light of the school, including a religious school, to developing a services plan and fact that an IEP developed pursuant to the extent consistent with law, or at explaining how a services plan differs section 614(d) of the Act will generally another location. The Department from an IEP. include much more than just those believes, in the interests of the child, Discussion: We do not believe that services that a parentally-placed private LEAs should provide services on site at additional explanation in the regulation school child with a disability may the child’s private school so as not to is needed. Under § 300.138(b), each receive, if designated to receive services. unduly disrupt the child’s educational parentally-placed private school child There is nothing, however, in these experience, unless there is a compelling with a disability who has been regulations that would prevent a State rationale for these services to be designated by the LEA in which the that provides more services to provided off-site. The phrase ‘‘to the private school is located to receive parentally-placed private school extent consistent with law’’ is in section special education or related services children with disabilities than they are 612(a)(10)(A)(i)(III) of the Act. We must have a services plan. The services required to do under the Act to use an interpret this language to mean that the plan must describe the