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DEPARTMENT OF EDUCATION
Western Area Power Administration
CFR Citation: 34 CFR Parts 300 and 301
RIN ID: RIN 1820-AB57
NOTICE: Part II
DOCUMENT ACTION: Final regulations.
SUBJECT CATEGORY: Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities
DATES: These regulations take effect on October 13, 2006.
DOCUMENT SUMMARY: The Secretary issues final regulations governing the Assistance to States for Education of Children with Disabilities Program and the Preschool Grants for Children with Disabilities Program. These regulations are needed to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Act or IDEA).
SUMMARY: Education Department,
SUPPLEMENTAL INFORMATION
These regulations implement changes in the regulations governing the Assistance to States for Education of Children with Disabilities Program and the Preschool Grants for Children with Disabilities Program necessitated by the reauthorization of the IDEA. With the issuance of these final regulations, part 301 has been removed and the regulations implementing the Preschool Grants for Children with Disabilities Program are included under subpart H of these final regulations.On June 21, 2005, the Secretary published a notice of proposed rulemaking in the Federal Register (70 FR 35782) (NPRM) to amend the regulations governing the Assistance to States for Education of Children with Disabilities Program, the Preschool Grants for Children with Disabilities Program, and Service Obligations under Special Education Personnel Development to Improve Services and Results for Children with Disabilities. In the preamble to the NPRM, the Secretary discussed, on pages 35783 through 35819, the changes proposed to the regulations for these programs; specifically, the amendments to 34 CFR part 300, the removal of 34 CFR part 301 and relocation of those provisions to subpart H of 34 CFR part 300, and the amendments to 34 CFR part 304.
Final regulations for 34 CFR Part 304Special EducationPersonnel Development to Improve Services and Results for Children with Disabilities were published in the Federal Register (71 FR 32396) on June 5, 2006, and became effective July 5, 2006.
Major Changes in the Regulations
The following is a summary of the major substantive changes in
these final regulations from the regulations proposed in the NPRM (the
rationale for each of these changes is discussed in the Analysis of Comments and Changes section of this preamble):
Subpart AGeneral
Definitions
(1) Section 300.8(b) (Children aged three through nine experiencing developmental delays) has been changed to clarify that the use of the term ``developmental delay'' is subject to the conditions described in Sec. 300.111(b).
(2) The definition of other health impairment in Sec. 300.8(c)(9)(i) has been changed to add ``Tourette Syndrome'' to the list of chronic or acute health problems.
(1) Section 300.18(b), regarding requirements for highly qualified special education teachers in general, has been modified to clarify that, when used with respect to any special education teacher teaching in a charter school, highly qualified means that the teacher meets the certification or licensing requirements, if any, set forth in the State's public charter school law.
(2) A new Sec. 300.18(e), regarding separate ``high objective uniform State standards of evaluation'' (HOUSSE), has been added to provide that a State may develop a separate HOUSSE for special education teachers, provided that any adaptations of the State's HOUSSE would not establish a lower standard for the content knowledge requirements for special education teachers and meets all the requirements for a HOUSSE for regular education teachers. This provision also clarifies that a State may develop a separate HOUSSE for special education teachers, which may include single HOUSSE evaluations that cover multiple subjects.
(3) Section 300.18(g) (proposed Sec. 300.18(f)) (``Applicability of definition to ESEA requirements; and clarification of new special education teacher'') has been revised as follows: (1) The heading has been revised, and (2) the language changed to clarify when a special education teacher is considered ``new'' for some purposes.
(4) Section 300.18(h) (proposed Sec. 300.18(g)) has been modified to clarify that the highly qualified special education teacher requirements also do not apply to private school teachers hired or contracted by LEAs to provide equitable services to parentallyplaced private school children with disabilities under Sec. 300.138.
(1) Section 300.34(a) (General) has been modified to (A) add the statutory term ``early identification and assessment of disabilities in children,'' which was inadvertently omitted from the NPRM, (B) combine ``school health services'' and ``school nurse services,'' and (C) remove the clause relating to a free appropriate public education under [[Page 46541]]
``school nurse services'' because it duplicates the clause in Sec. 300.34(c)(13).
(2) Section 300.34(b) has been changed to (A) expand the title to read ``Exception; services that apply to children with surgically implanted devices, including cochlear implants,'' and (B) clarify, in new paragraph (b)(1), that related services do not include a medical device that is surgically implanted, the optimization of that device's functioning (e.g., mapping), maintenance of that device, or the replacement of that device.
(3) A new Sec. 300.34(b)(2) has been added to make clear that nothing in paragraph (b)(1) of Sec. 300.34 (A) limits the right of a child with a surgically implanted device (e.g., a cochlear implant) to receive related services, as listed in Sec. 300.34(a), that are determined by the IEP Team to be necessary for the child to receive FAPE; (B) limits the responsibility of a public agency to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; or (C) prevents the routine checking of an external component of a surgicallyimplanted device to make sure it is functioning properly, as required in Sec. 300.113(b). (4) The definition of interpreting services in Sec. 300.34(c)(4) has been changed to clarify that the term includes (A) transcription services, such as communication access realtime translation (CART), C Print, and TypeWell for children who are deaf or hard of hearing, and (B) special interpreting services for children who are deafblind. (5) The definition of orientation and mobility services in Sec. 300.34(c)(7) has been changed to remove the term ``travel training instruction.'' The term is under the definition of special education, and is defined in Sec. 300.39(b)(4).
(6) The definition of school nurse services in 300.34(c)(13) has been expanded and renamed school health services and school nurse services. The expanded definition clarifies that ``school nurse services'' are provided by a qualified school nurse, and ``school health services'' may be provided by a qualified school nurse or other qualified person.
With the addition of the new definition in Sec. 300.35, the
definitions in subpart A, beginning with the definition of secondary school, have been renumbered.
Subpart BState Eligibility
FAPE Requirements
(1) Paragraph (a) of Sec. 300.113 requires each public agency to ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.
(2) A new Sec. 300.113(b)(1) requires each public agency to ensure that the external components of surgically implanted medical devices are functioning properly. However, new Sec. 300.113(b)(2) has been added to make it clear that, for a child with a surgically implanted medical device who is receiving special education and related services, a public agency is not responsible for the postsurgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).
Least Restrictive Environment
Children With Disabilities Enrolled by Their Parents in Private Schools
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in which private (including religious) elementary schools and secondary schools are located must include parentallyplaced private school children who reside in a State other than the State in which the private schools that they attend are located.
(1) A new Sec. 300.133(a)(2)(ii), has been added to clarify that children aged three through five are considered to be parentallyplaced private school children with disabilities enrolled by their parents in private, including religious, elementary schools, if they are enrolled in a private school that meets the definition of elementary school in Sec. 300.13.
(2) A new Sec. 300.133(a)(3) has been added to specify that, if an LEA has not expended for equitable services for parentallyplaced private school children with disabilities all of the applicable funds described in Sec. 300.133(a)(1) and (a)(2) by the end of the fiscal year for which Congress appropriated the funds, the LEA must obligate the remaining funds for special education and related services (including direct services) to parentallyplaced private school children with disabilities during a carryover period of one additional year.
(3) A new Sec. 300.140(c), regarding State complaints by private school officials, has been added to clarify that (A) any complaint that an SEA or LEA has failed to meet the requirements in Sec. Sec. 300.132 through 300.135 and 300.137 through 300.144 must be filed in accordance with the procedures described in Sec. Sec. 300.151 through 300.153, and (B) a complaint filed by a private school official under Sec. 300.136(a) must be filed with the SEA in accordance with the procedures in Sec. 300.136(b).
Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE Is at Issue
Section 300.148 Placement of Children by Parents if FAPE Is at Issue
State Complaint Procedures
Methods of Ensuring Services
Additional Eligibility Requirements
Part B of the IDEA regarding additional flexibility for States to measure the achievement of children with disabilities based on modified achievement standards.
Other Provisions Required for State Eligibility
Parental Consent
(1) Paragraph (a) of Sec. 300.300, regarding consent for initial evaluation, has been changed to provide that the public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability must, after providing notice consistent with Sec. Sec. 300.503 and 300.504, obtain informed consent, consistent with Sec. 300.9, from the parent of the child before conducting the evaluation. A new paragraph (a)(1)(iii) has been added to require a public agency to make reasonable efforts to obtain the informed consent from the parent for an initial evaluation. (2) Section 300.300(a)(3), regarding a parent's failure to provide consent for initial evaluation, has been changed to clarify, in a new paragraph (a)(3)(ii), that the public agency does not violate its obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue the evaluation.
(3) Section 300.300(b), regarding parental consent for services, has been modified by a new paragraph (b)(2) that requires a public agency to make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services.
(4) Section 300.300(c)(1), regarding parental consent for reevaluations, has been modified to clarify that if a parent refuses to consent to a reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures in Sec. 300.300(a)(3), and the public agency does not violate its obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue the evaluation or reevaluation.
(5) A new Sec. 300.300(d)(4) has been added to provide that if a parent of a child who is home schooled or placed in a private school by the parent at the parent's expense, does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency (A) may not use the consent override procedures (described elsewhere in Sec. 300.300), and (B) is not required to consider the child eligible for services under the requirements relating to parentallyplaced private school children with disabilities (Sec. Sec. 300.132 through 300.144).
(6) A new Sec. 300.300(d)(5) has been added to clarify that in order for a public agency to meet the reasonable efforts requirement to obtain informed parental consent for an initial evaluation, initial services, or a reevaluation, a public agency must document its attempts to obtain parental consent using the procedures in Sec. 300.322(d). Additional Procedures for Evaluating Children With Specific Learning Disabilities (SLD)
(1) Proposed paragraph (a)(1) of Sec. 300.307, which allowed a State to prohibit the use of a severe discrepancy between intellectual ability and achievement for determining if a child has an SLD, has been removed, and proposed paragraph (a)(2) of Sec. 300.307 has been redesignated as paragraph (a)(1).
(2) Section 300.307(a)(2) (proposed paragraph (a)(3)) has been changed to clarify that the criteria adopted by the State must permit the use of a process based on the child's response to scientific, researchbased intervention.
(1) Paragraph (a) of Sec. 300.309 has been changed (A) to clarify that the group described in 300.306 may determine that a child has a specific learning disability if the child does not achieve adequately for the child's age or to meet Stateapproved gradelevel standards in one or more of eight areas (e.g., oral expression, basic reading skill, etc.), when provided with learning experiences and instruction appropriate for the child's age or Stateapproved gradelevel standards; and (B) to add ``limited English proficiency'' to the other five conditions that could account for the child's learning problems, and that the group considers in determining whether the child has an SLD.
(2) Section 300.309(b) has been changed to clarify (A) that, in order to ensure that underachievement in a child suspected of having an SLD is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in Sec. Sec. 300.304 through 300.306, data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel, and (B) to replace (in paragraph (b)(1)) the term ``high quality researchbased instruction'' with ``appropriate instruction.''
(3) Section 300.309(c) has been changed to provide that the public agency must promptly request parental
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consent to evaluate a child suspected of having an SLD who has not made adequate progress after an appropriate period of time when provided appropriate instruction, and whenever a child is referred for an evaluation.
(1) Paragraph (a) of proposed Sec. 300.310 has been revised (A) to remove the phrase ``trained in observation, and (B) to specify that the public agency must ensure that the child is observed in the child's learning environment.
(2) A new Sec. 300.310(b) has been added to require the eligibility group to decide to (A) use information obtained from an observation in routine classroom instruction and monitoring of the child's performance that was done before the child was referred for an evaluation, or (B) have at least one member of the group described in Sec. 300.306(a)(1) conduct an observation of the child's academic performance in the regular classroom after the child has been referred for an evaluation and parental consent is obtained.
Paragraph (b) of proposed Sec. 300.310 has been redesignated as new Sec. 300.310(c).
(1) Section 300.311(a)(5), regarding whether the child does not achieve commensurate with the child's age, has been modified and expanded to add whether the child does not achieve adequately for the child's age or to meet Stateapproved gradelevel standards consistent with Sec. 300.309(a)(1), and (A) the child does not make sufficient progress to meet age or to meet Stateapproved gradelevel standards consistent with Sec. 300.309(a)(2)(i), or (B) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, Stateapproved grade level standards or intellectual development consistent with Sec. 300.309(a)(2)(ii). (2) Proposed Sec. 300.311(a)(6), regarding whether there are strengths or weaknesses or both in performance or achievement or both relative to intellectual development, has been removed.
(3) A new Sec. 300.311(a)(6) has been added to clarify that the documentation must include a statement of the determination of the group concerning the effects of visual, hearing, or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency on the child's achievement level.
(4) A new Sec. 300.311(a)(7) has been added to provide that if the child has participated in a process that assesses the child's response to scientific, researchbased intervention, the documentation must include the instructional strategies used and the studentcentered data collected, and documentation that the child's parents were notified about (A) the State's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided, (B) strategies for increasing the child's rate of learning, and (C) the parents' right to request an evaluation.
Individualized Education Programs
Subpart EProcedural Safeguards
(1) A new Sec. 300.502(b)(5) has been added to make clear that a parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.
(2) Section 300.502(c) has been changed to clarify that if a parent obtains an independent evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the public agency must consider the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child.
(1) Paragraph (a)(2) of Sec. 300.504 has been changed to add that a copy of the procedural safeguards notice must be given upon receipt of the first due process complaint under Sec. 300.507 in a school year, as well as upon receipt of the first State complaint under Sec. 300.151 through 300.153.
(2) A new Sec. 300.504(a)(3) has been added to provide that the notice must be given to the parents of a child with a disability in accordance with the discipline procedures in Sec. 300.530(h). [[Page 46545]]
(1) Section 300.510(b)(1), regarding the resolution period, has been changed to state that a due process hearing ``may occur'' (in lieu of ``must occur'') by the end of the resolution period, if the parties have not resolved the dispute that formed the basis for the due process complaint.
(2) A new Sec. 300.510(b)(3) has been added to provide that, except where the parties have jointly agreed to waive the resolution process or to use mediation (notwithstanding Sec. 300.510(b)(1) and (2)), the failure of a parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held. (3) A new Sec. 300.510(b)(4) has been added to provide that if an LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made, and documented using the procedures in Sec. 300.322(d), the LEA may, at the conclusion of the 30day resolution period, request that a hearing officer dismiss the parent's due process complaint.
(4) A new paragraph (b)(5) of Sec. 300.510 has been added to provide that, if the LEA fails to hold the resolution meeting within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timelines.
(5) A new Sec. 300.510(c) (Adjustments to the 30day resolution period) has been added that specifies exceptions to the 30day resolution period (e.g., (A) both parties agree in writing to waive the resolution meeting; (B) after either the mediation or resolution meeting starts but before the end of the 30day period, the parties agree in writing that no agreement is possible; or (C) if both parties agree in writing to continue the mediation at the end of the 30day resolution period, but later, the parent or public agency withdraws from the mediation process). Subsequent paragraphs have been renumbered accordingly.
(6) Paragraph (d)(2) of Sec. 300.510 (proposed paragraph(c)(2)), regarding the enforceability of a written settlement agreement in any State court of competent jurisdiction or in a district court of the United States, has been expanded to add the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to a new Sec. 300.537.
Discipline Procedures
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modified to clarify that the hearing is requested by filing a complaint pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).
(2) Section 300.532(b)(3) has been changed to more definitively provide that if the LEA believes that returning the child to his or her original placement is substantially likely to result in injury to the child or others.
(3) Section 300.532(c)(3), regarding an expedited due process hearing, has been adjusted to provide that unless the parents and an LEA agree in writing to waive a resolution meeting, or agree to use the mediation process described in Sec. 300.506, the resolution meeting must occur within seven days of receiving notice of the due process complaint, and the hearing may proceed within 15 days of receipt of the due process complaint unless the matter has been resolved to satisfaction of both parties.
(4) Proposed Sec. 300.532(c)(4), regarding the twoday timeframe for disclosing information to the opposing party prior to an expedited due process hearing, has been removed.
Monitoring, Technical Assistance, and Enforcement
(1) Section 300.600(a) has been amended to require the State to enforce Part B of the Act in accordance with Sec. 300.604(a)(1) and (a)(3), (b)(2)(i) and (b)(2)(v), and (c)(2).
(2) A new paragraph (d) has been added, which provides that the State must monitor the LEAs located in the State, using quantifiable indicators in each of the following priority areas, and such qualitative indicators as are needed to adequately measure performance in those areas, including: (A) Provision of FAPE in the least restrictive environment; (B) State exercise of general supervision, including child find, effective monitoring, the use of resolution meetings, and a system of transition services as defined in Sec. 300.43 and in 20 U.S.C. 1437(a)(9); and (C) disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification.
Confidentiality of Information
(1) Paragraph (a) of Sec. 300.622 has been changed to provide that parental consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies, unless the information is contained in education records, and the disclosure is authorized without parental consent under the regulations for the Family Educational Rights and Privacy Act (FERPA, 34 CFR part 99).
(2) A new Sec. 300.622(b)(1) has been added to clarify that parental consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of the Act or these regulations.
(3) A new Sec. 300.622(b)(2) has been added to provide that parental consent must be obtained before personally identifiable information is released to officials of participating agencies that provide or pay for transition services.
(4) A new paragraph (b)(3) has been added to require that, with respect to parentallyplaced private school children with disabilities, parental consent must be obtained before any personally identifiable information is released between officials in the LEA where the private school is located and the LEA of the parent's residence.
(5) Proposed Sec. 300.622(c), regarding the requirement to provide policies and procedures for use in the event that a parent refuses to consent, has been removed because it is covered elsewhere in these regulations.
Subpart GAuthorization, Allotment, Use of Funds, and Authorization of Appropriations
Allotments, Grants, and Use of Funds
Secretary of the Interior
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(1) The definition of Tribal governing body of a school has been replaced with the definition of tribal governing body from 25 U.S.C. 2021(19).
(2) Section 300.707(c), regarding an additional requirement under ``Use of amounts by Secretary of the Interior,'' has been revised to clarify that, with respect to all other children aged 3 to 21, inclusive, on reservations, the SEA of the State in which the reservation is located must ensure that all the requirements of Part B of the Act are met.
Analysis of Comments and Changes
Introduction
In response to the invitation in the NPRM, more than 5,500 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM immediately follows this introduction.
The perspectives of parents, individuals with disabilities, teachers, related services providers, State and local officials, members of Congress, and others were very important in helping us to identify where changes to the proposed regulations were necessary, and in formulating many of the changes. In light of the comments received, a number of significant changes are reflected in these final regulations.
We discuss substantive issues under the subpart and section to
which they pertain. References to subparts in this analysis are to
those contained in the final regulations. The analysis generally does not address
(a) Minor changes, including technical changes made to the language published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to make under applicable statutory authority; and
(c) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, such as requests for information about innovative
instructional methods or matters that are within the purview of State and local decisionmakers.
Subpart AGeneral
Definitions Used in This Part
Applicability of This Part to State and Local Agencies (Sec. 300.2)
Comment: None.
Discussion: Section Sec. 300.2(c)(2) contains an incorrect reference to Sec. 300.148(b). The correct reference should be to Sec. 300.148.
Changes: We have removed the reference to Sec. 300.148(b) and replaced it with a reference to Sec. 300.148.
Assistive Technology Device (Sec. 300.5)
Comment: Some commenters opposed the exclusion of surgically implanted medical devices in the definition of assistive technology device. Another commenter recommended limiting the definition of assistive technology device to a device that is needed to achieve educational outcomes, rather than requiring local educational agencies (LEAs) to pay for any assistive technology device that increases, maintains, or improves any functional need of the child.
Discussion: The definition of assistive technology device in Sec. 300.5 incorporates the definition in section 602(1)(B) of the Act. We do not believe the definition should be changed in the manner suggested by the commenters because the changes are inconsistent with the statutory definition. The definition in the Act specifically refers to any item, piece of equipment, or product system that is used to increase, maintain, or improve the functional capabilities of the child and specifically excludes a medical device that is surgically implanted or the replacement of such device. Accordingly, we continue to believe it is appropriate to exclude surgically implanted medical devices from this definition. In response to the second comment, Sec. 300.105(a) requires each public agency to ensure that assistive technology devices (or assistive technology services, or both) are made available to a child with a disability if required as part of the child's special education, related services, or supplementary aids and services. This provision ties the definition to a child's educational needs, which public agencies must meet in order to ensure that a child with a disability receives a free appropriate public education (FAPE).
Changes: None.
Comment: One commenter requested that the regulations clarify that an assistive technology device is not synonymous with an augmentative communication device. A few commenters recommended including recordings for the blind and dyslexic playback devices in the definition of assistive technology devices. Some commenters recommended including language in the regulations clarifying that medical devices used for breathing, nutrition, and other bodily functions are assistive technology devices.
Discussion: The definition of assistive technology device does not
list specific devices, nor would it be practical or possible to include
an exhaustive list of assistive technology devices. Whether an
augmentative communication device, playback devices, or other devices
could be considered an assistive technology device for a child depends
on whether the device is used to increase, maintain, or improve the
functional capabilities of a child with a disability, and whether the
child's individualized education program (IEP) Team determines that the
child needs the device in order to receive a free appropriate public
education (FAPE). However, medical devices that are surgically
implanted, including those used for breathing, nutrition, and other
bodily functions, are excluded from the definition of an assistive
technology device in section 602(1)(B) of the Act. The exclusion
applicable to a medical device that is surgically implanted includes
both the implanted component of the device, as well as its external components.
Changes: None.
Comment: A few commenters asked whether the definition of assistive technology device includes an internetbased instructional program, and what the relationship is between internetbased instructional programs and speciallydesigned instruction.
Discussion: An instructional program is not a device, and,
therefore, would not meet the definition of an assistive technology
device. Whether an internetbased instructional program is appropriate
for a particular child is determined by the child's IEP Team, which
would determine whether the program is needed in order for the child to receive FAPE.
Changes: None.
Comment: A few commenters recommended including the proper functioning of hearing aids in the definition of assistive technology device.
Discussion: We believe that the provision requiring public agencies
to ensure that hearing aids worn in school are functioning properly is more appropriately included in new Sec. 300.113
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(proposed Sec. 300.105(b)). As noted in the Analysis of Comments and
Changes section discussing subpart B, we have added a new Sec. 300.113
to address the routine checking (i.e., making sure they are turned on
and working) of hearing aids and external components of surgically implanted devices.
Changes: None.
Assistive Technology Service (Sec. 300.6)
Comment: One commenter requested clarifying ``any service'' in the definition of assistive technology service.
Discussion: We believe the definition is clear that an assistive
technology service is any service that helps a child with a disability
select an appropriate assistive technology device, obtain the device, or train the child to use the device.
Changes: None.
Comment: One commenter stated that services necessary to support the use of playback devices for recordings for the blind and dyslexic should be added to the definition of assistive technology service.
Discussion: A service to support the use of recordings for the
blind and dyslexic on playback devices could be considered an assistive
technology service if it assists a child with a disability in the
selection, acquisition, or use of the device. If so, and if the child's
IEP Team determines it is needed for the child to receive FAPE, the
service would be provided. The definition of assistive technology
service does not list specific services. We do not believe it is
practical or possible to include an exhaustive list of assistive
technology services, and therefore, decline to add the specific
assistive technology service recommended by the commenter to the definition.
Changes: None.
Comment: One commenter recommended evaluating all children with speech or hearing disabilities to determine if they can benefit from the Federal Communications Commission's specialized telephone assistive services for people with disabilities.
Discussion: Evaluations under section 614 of the Act are for the
purpose of determining whether a child has a disability and because of
that disability needs special education and related services, and for
determining the child's special education and related services needs.
It would be inappropriate under the Act to require evaluations for
other purposes or to require an evaluation for telephone assistive
services for all children with speech and hearing disabilities.
However, if it was determined that learning to use telephone assisted
services, was an important skill for a particular child (e.g., as part
of a transition plan), it would be appropriate to conduct an evaluation
of that particular child to determine if the child needed specialized instruction in order to use such services.
Changes: None.
Comment: One commenter requested that the definition of assistive technology service specifically exclude a medical device that is surgically implanted, the optimization of device functioning, maintenance of the device, and the replacement of the device.
Discussion: The definition of related services in Sec. 300.34(b)
specifically excludes a medical device that is surgically implanted,
the optimization of device functioning, maintenance of the device, or
the replacement of that device. In addition, the definition of
assistive technology device in Sec. 300.5 specifically excludes a
medical device that is surgically implanted and the replacement of that
device. We believe it is unnecessary to repeat these exclusions in the definition of assistive technology service.
Changes: None.
Charter School (Sec. 300.7)
Comment: Several commenters suggested that we include in the regulations the definitions of terms that are defined in other statutes. For example, one commenter requested including the definition of charter school in the regulations.
Discussion: Including the actual definitions of terms that are defined in statutes other than the Act is problematic because these definitions may change over time (i.e., through changes to statutes that establish the definitions). In order for these regulations to retain their accuracy over time, the U.S. Department of Education (Department) would need to amend the regulations each time an included definition that is defined in another statute changes. The Department believes that this could result in significant confusion.
However, we are including the current definition of charter school in section 5210(1) of the ESEA here for reference.
The term charter school means a public school that:
1. In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this paragraph [the paragraph that sets forth the Federal definition];
2. Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
3. Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;
4. Provides a program of elementary or secondary education, or both;
5. Is nonsectarian in its programs, admissions policies, employment
practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
6. Does not charge tuition;
7. Complies with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and Part B of the Individuals with Disabilities Education Act;
8. Is a school to which parents choose to send their children, and that admits students on the basis of a lottery, if more students apply for admission than can be accommodated;
9. Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such requirements are specifically waived for the purpose of this program [the Public Charter School Program];
10. Meets all applicable Federal, State, and local health and safety requirements;
11. Operates in accordance with State law; and
12. Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable t
FOR FURTHER INFORMATION CONTACT Alexa Posny, U.S. Department of Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC 202022641. Telephone: (202) 2457459, ext. 3.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay System (FRS) at 18008778339.
Individuals with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.
Common CFR Searches
14 CFR Part 39 40 CFR Part 52 14 CFR Part 71 33 CFR Part 165 50 CFR Part 679 26 CFR Part 1 40 CFR Part 180 47 CFR Part 73 50 CFR Part 17 33 CFR Part 117 44 CFR Part 67 50 CFR Part 648 14 CFR Part 97 33 CFR Part 100 40 CFR Part 63 50 CFR Part 622 26 CFR Part 301 39 CFR Part 111 40 CFR Part 300 50 CFR Part 660 44 CFR Part 65 40 CFR Parts 52 and 81 40 CFR Part 271 47 CFR Part 64 50 CFR Part 665 47 CFR Part 76 50 CFR Part 229 14 CFR Part 23 14 CFR Part 25 21 CFR Part 522