Federal Register: May 13, 2008 (Volume 73, Number 93)
DOCID: fr13my08-15 FR Doc E8-10522
DEPARTMENT OF EDUCATION
Veterans Affairs Department
CFR Citation: 34 CFR Part 300
Docket ID: [Docket ID ED-2008-OSERS-0005]
RIN ID: RIN 1820-AB60
NOTICE: Part III
DOCID: fr13my08-15
DOCUMENT ACTION: Notice of proposed rulemaking (NPRM).
SUBJECT CATEGORY:
Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities
DATES: We must receive your comments on or before July 28, 2008.
DOCUMENT SUMMARY:
The Secretary proposes to amend the regulations in 34 CFR part 300 governing the Assistance to States for the Education of Children with Disabilities Program and Preschool Grants for Children with Disabilities Program, as published in the Federal Register on August 14, 2006, and seeks public comment on the proposed amendments that we have determined are necessary for effective implementation and administration of these programs. The proposed regulations were not included in the notice of proposed rulemaking published in the Federal Register on June 21, 2005 to implement changes made to the Individuals with Disabilities Education Act (IDEA or Act), as amended by the Individuals with Disabilities Education Improvement Act of 2004, and, thus, have not previously been available for public comment.
SUMMARY:
Education Department,
SUPPLEMENTAL INFORMATION
Invitation to Comment
We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should provide to reduce the potential costs or increase potential benefits while preserving the effective and efficient administration of the programs.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You also may inspect the comments, in person, in Room 5104, Potomac
Center Plaza, 550 12th Street, SW., Washington, DC, between the hours
of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.
Background
On December 3, 2004, the Individuals with Disabilities Education Improvement Act of 2004 was enacted into law as Pub L. 108446, and made significant changes to the IDEA. On June 21, 2005, the Secretary published a notice of proposed rulemaking in the Federal Register (70 FR 35782) (June 21, 2005 NPRM) to amend the regulations governing the Assistance to States for the Education of Children with Disabilities Program (Part 300), the Preschool Grants for Children with Disabilities Program (Part 301), and Service Obligations under Special Education Personnel Development to Improve Services and Results for Children with Disabilities (Part 304).
Final regulations for Part 304Special EducationPersonnel Development to Improve Services and Results for Children with Disabilities were published in the Federal Register on June 5, 2006 (71 FR 32396), and became effective July 5, 2006.
On August 14, 2006, the Secretary published final regulations in the Federal Register (71 FR 46540) that addressed more than 5,500 public comments on Parts 300 and 301 that were received in response to the June 21, 2005 NPRM. With the issuance of those final regulations, Part 301 was removed and the regulations implementing the Preschool Grants for Children with Disabilities Program were included under subpart H of the final regulations for Part 300. The final regulations became effective October 13, 2006.
In developing final regulations for the Assistance to States for
the Education of Children with Disabilities Program, we identified
certain issues for which additional regulatory changes might be
necessary. These issues, which we address in this NPRM, are: (1)
Parental revocation of consent after consenting to the initial
provision of services; (2) a State's or local educational agency's
(LEA's) obligation to make positive efforts to employ qualified individuals
[[Page 27691]]
with disabilities; (3) representation of parents by nonattorneys in
due process hearings; (4) State monitoring, technical assistance, and
enforcement of the Part B program; and (5) the allocation of funds,
under sections 611 and 619 of the Act, to LEAs that are not serving any
children with disabilities. This NPRM also proposes minor modifications
to the consent provisions to correct an inadvertent omission. Significant Proposed Regulations
We discuss issues according to subject, with appropriate sections of the proposed regulations indicated.
Parental Revocation of Consent for Special Education Services (Sec. Sec. 300.9 and 300.300)
We propose to amend Sec. Sec. 300.9 and 300.300 (71 FR 46757, 4678346784) to permit parents to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. Under the proposed regulation, a public agency would not be able, through mediation or a due process hearing, to challenge the parent's decision or seek a ruling that special education and related services must continue to be provided to the child.
Under section 614(a)(1)(D)(i)(II) of the Act, agencies responsible for making a free appropriate public education (FAPE) available to a child with a disability under Part B of the Act must seek to obtain informed consent from the child's parent before initiating the provision of special education and related services to the child. Section 614(a)(1)(D)(ii)(II) further requires that, if a parent refuses to provide such consent, the LEA shall not require the provision of those services to the child by utilizing the due process procedures under section 615 of the Act. In these circumstances, under section 614(a)(1)(D)(ii)(III) of the Act, the LEA is not considered to be in violation of its obligation to provide FAPE and is not required to convene an individualized education program (IEP) Team meeting or develop an IEP.
The regulations in Sec. 300.300(b) (71 FR 46784) interpret the statutory provision in section 614(a)(1)(D)(i)(II) of the Act to require consent prior to the initial provision of special education and related services; i.e., before a child with a disability receives special education and related services for the first time. However, the regulations do not specifically address whether parents, by revoking their consent, can require a public agency to cease providing their child special education and related services after the parents already have consented to the initial provision of special education and related services and the child has begun receiving those services.
It has been our longstanding interpretation of the current regulations in Sec. 300.300(b), and similar regulations that were in effect prior to October 13, 2006, that, although parents have the right to determine whether their child would initially receive special education and related services by providing or withholding parental consent for the initial provision of services, once the child receives special education and related services, parents cannot unilaterally withdraw their child from receipt of special education and related services. If parents no longer want their child to receive those services, yet the public agency believes the services are necessary to ensure that the child continues to receive FAPE, our view was that the public agency had an obligation to continue to provide the services, or if under State law the parent had the right to consent to continued services, to take the necessary steps, which could include using informal means to reach agreement with the parent, as well as requesting a due process hearing, to seek to override the parent's refusal to consent to the continuation of those services.
The issue of whether parents have the right to unilaterally withdraw their child from continued receipt of special education and related services was not included in the June 21, 2005 NPRM. The Department, however, received several comments on the consent provisions in the proposed regulations in Sec. Sec. 300.9 and 300.300(b), including comments requesting that we address situations in which a child's parents want to discontinue special education and related services because they believe that their child no longer needs those services. As we indicated in the Analysis of Comments and Changes section of the final regulations (71 FR 46551, 46633), these commenters stated that public agencies should not be allowed to use the Part B procedural safeguards to continue special education and related services if a parent revokes consent. In response, we indicated that we would solicit comment on this suggested change in a subsequent notice of proposed rulemaking.
Therefore, we propose to amend the regulations to provide that parents may unilaterally withdraw their child from continued receipt of special education and related services and that public agencies may not take steps to override a parent's refusal to consent to further services. Just as, under section 614(a)(1)(D)(ii)(II), parents have the authority to consent to the initial provision of special education and related services, we believe that parents also should have the authority to revoke that consent, thereby ending the provision of special education and related services to their child. This change is also consistent with the IDEA's emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education.
These proposed regulations would not require public agencies, once they have obtained parental consent for the initial provision of special education and related services, to obtain parental consent to provide special education and related services at any subsequent time, such as for the provision of services under a subsequent IEP. We believe that including this type of additional consent requirement would be unduly burdensome for public agencies, and an unwarranted intrusion on State and local control of education. States, however, have the discretion to establish additional consent requirements, consistent with the provisions in Sec. 300.300(d) (71 FR 46784).
The proposed amendment to Sec. 300.300(b)(3) would combine the provisions in current Sec. 300.300(b)(3) and (b)(4) (71 FR 46784) relating to parental consent for the provision of initial services. Section 300.300(b)(3) currently provides that a public agency may not use the procedures in subpart E of the regulations (Procedural Safeguards and Due Process Procedures) to obtain agreement or a ruling that services may be provided if the parent of a child fails to respond or refuses to consent to the initial provision of services. Section 300.300(b)(4) currently provides that a public agency will not be considered in violation of its obligation to make FAPE available and is not required to convene an IEP Team meeting or develop an IEP if a parent refuses or fails to consent to the initial provision of services. This proposed change would simplify the regulation by eliminating the slight differences in the introductory material in the current provisions and would clarify that the provision would apply to situations in which a parent refuses or fails to consent to the initial provision of special education and related services.
We propose to add a new Sec. 300.300(b)(4) to provide that if, at
any time subsequent to the initial provision of special education and related
[[Page 27692]]
services, the parent of a child revokes consent for the provision of
special education and related services, a public agency(a) may not
continue to provide special education and related services to the
child; (b) may not use the procedures in subpart E of the regulations
(including the mediation procedures under Sec. 300.506 or the due
process procedures under Sec. Sec. 300.507 through 300.516) to obtain
agreement or a ruling that services may be provided; (c) will not be
considered in violation of its obligation to make FAPE available to the
child for failure to provide the child with further special education
and related services; and (d) is not required to convene an IEP Team
meeting or develop an IEP, under Sec. Sec. 300.320 through 300.324.
Therefore, this proposed regulation would(a) clarify that parents
have the right to withdraw their child from receipt of special
education and related services without being subjected to mediation or
a due process hearing requested by the public agency; and (b) protect
the public agency from any subsequent action by the parents based on
the public agency's termination of special education services following
the parents' revocation of consent. Of course, if a parent subsequently
provides consent for services, a public agency would again have an
obligation to make FAPE available to the child, including developing
and implementing an IEP, as appropriate. We also note that under
current Sec. 300.534(c)(1)(ii) a public agency is not deemed to have
knowledge that a child is a child with a disability for purposes of
disciplinary actions if the parent of the child has refused services
under the IDEA; for example, if a parent revokes consent for the
provision of special education services and the child subsequently
faces a disciplinary action, the school district would be able to
discipline the child in the same manner as a nondisabled child. This
provision would apply to situations in which a parent has revoked
consent for the receipt of special education and related services.
We also propose to revise Sec. 300.300(d)(2) and (d)(3) (71 FR 46784) to correct an inadvertent omission. Section 300.300(d)(2) (71 FR 46784) currently provides that States may require parental consent for other services and activities under Part 300 in addition to the consent requirements in Sec. 300.300(a) (71 FR 46783), which addresses parental consent for an initial evaluation. Section 300.300(d)(3) (71 FR 46784) currently provides that a public agency may not use a parent's refusal to consent to one service or activity under Sec. 300.300(a) or (d)(2) to deny the parent or child other services and activities. To be consistent with comparable provisions in effect before the final regulations published in 2006, Sec. 300.300(d)(2) should have included a reference to the parental consent provisions in Sec. 300.300(a), (b), and (c), rather than just Sec. 300.300(a), and Sec. 300.300(d)(3) should have referred to Sec. 300.300(a), (b), (c), or (d)(2), rather than just Sec. 300.300(a) or (d)(2). Therefore, we propose to revise Sec. 300.300(d)(2) to refer to paragraphs (a), (b), and (c) of Sec. 300.300 rather than just paragraph (a). We propose to revise Sec. 300.300(d)(3) to refer to paragraphs (a), (b), (c), or (d)(2) of Sec. 300.300, rather than just paragraphs (a) or (d)(2).
We would add a new Sec. 300.9(c)(3) to clarify that, if a parent
revokes consent for the child's receipt of special education and
related services after the child is initially provided special
education and related services, the public agency would not be required
to amend the child's education records to remove any references to the
child's receipt of special education and related services because of
the parent's revocation of consent. We believe that this change is
necessary to clarify that the child's education records would not be
required to be changed for the period prior to the parent's revocation
of consent for special education and related services. Schools need the
ability to keep accurate records of a child's school experience,
including whether the child received special education and related services.
States' Sovereign Immunity and Positive Efforts To Employ and Advance Qualified Individuals With Disabilities (Sec. 300.177)
We propose to amend Sec. 300.177, regarding States' sovereign
immunity, by adding a new provision relating to States' and LEAs'
obligations to make positive efforts to employ and advance qualified
individuals with disabilities. Specifically, we are proposing to
redesignate current Sec. 300.177(a) through (c), regarding States'
sovereign immunity, as proposed Sec. 300.177(a)(1) through (a)(3), and
add a new paragraph (b) to provide that any recipient of assistance
under Part B of the Act must make positive efforts to employ, and
advance in employment, qualified individuals with disabilities in
programs assisted under Part B of the Act, such as special education
programs of an SEA or LEA or the Statewide assessment program of an
SEA that is using IDEA funds to develop assessments for children with
disabilities. This paragraph would reflect the provisions in section
606 of the Act, which provides that the Secretary will ensure that each
grant recipient under the IDEA makes positive efforts to employ, and
advance in employment, qualified individuals with disabilities in programs assisted under the IDEA.
Representation by NonAttorneys in Due Process Hearings (Sec. 300.512)
Section 615(h)(1) of the Act provides that any party to a hearing conducted under Part B of the IDEA has the right to be accompanied and advised by counsel, and by individuals with special knowledge or training with respect to the problems of children with disabilities. This statutory provision is reflected in Sec. 300.512(a)(1) (71 FR 46795).
Both the Act and its implementing regulations are silent on the issue of whether individuals who are not attorneys, but have special knowledge or expertise regarding the problems of children with disabilities, may represent parties at IDEA due process hearings. However, as indicated in an April 8, 1981 letter from Theodore Sky, Acting General Counsel of the Department of Education, to the Honorable Frank B. Brouillet, the Department previously interpreted section 615(h) of the Act and implementing regulations to mean that attorneys and lay advocates may perform the same functions at due process hearings.
One commenter, in responding to the June 21, 2005 NPRM, requested that the Department amend the regulations to indicate that a parent has the right to be represented by a nonattorney at an IDEA due process hearing. The Department believes that some clarification is warranted because the IDEA is silent regarding the representational role of non attorneys at IDEA due process hearings.
In the absence of statutory or regulatory language, at least one
court concluded that State laws regulating the practice of law and
prohibiting representation by lay advocates in due process hearings do
not conflict with the IDEA. In re Arons, 756 A.2d 867 (Del. 2000),
cert. denied sub nom, Arons v. Office of Disciplinary Counsel, 532 U.S.
1065 (2001). Given that the language of the Act and regulations is not
clear, we are persuaded now that this position best reflects an
appropriate regard for the principle of FederalState comity. We
believe that the regulations should respect the interests that States
have in regulating the practice of law so as to protect the public and ensure the appropriate administration of justice.
[[Page 27693]]
Therefore, we propose to change the Department's earlier interpretation
of section 615(h) of the Act and the regulations regarding
representation of parents by nonattorneys in due process hearings, and
amend the regulation in Sec. 300.512(a)(1) (71 FR 46795) accordingly.
Specifically, Sec. 300.512(a)(1) (71 FR 46795), concerning a parent's right to be accompanied and advised by counsel and by other individuals with special knowledge or training with respect to the problems of children with disabilities, would be amended to specify that a parent's right to be represented by nonattorneys at due process hearings is determined by State law. We believe alerting parents that State laws affect whether they can be represented in a due process hearing by a nonattorney advocate should reduce future litigation of this issue. The proposed change also is consistent with the Department's general position to provide flexibility to States where the IDEA is silent or where State law does not conflict with the Act.
Because this proposed change would directly reverse a prior interpretation that the Department authoritatively adopted and consistently followed, and the June 21, 2005 NPRM did not indicate that we were considering any change, we are now proposing in this NPRM, that a parent's right to be represented by nonattorneys at a due process hearing must be determined under State law.
Note that this change would not prevent parents from representing
themselves in due process hearings or during court proceedings under
the IDEA. In Winkelman v. Parma City School District, 550 U.S. ,
127 S. Ct. 1994 (2007), the Supreme Court held that parents can
prosecute IDEA claims on their own behalf without being represented by
an attorney. The proposed regulatory change would not affect this holding.
State Monitoring, Technical Assistance, and Enforcement (Sec. Sec. 300.600, 300.602, and 300.606)
1. State Determinations About LEA Performance and State Enforcement
Section 616(a)(1)(C) of the Act requires States to monitor the implementation of Part B of the Act by LEAs, and to enforce Part B of the Act in accordance with the monitoring priorities and enforcement mechanisms set forth in section 616(a)(3) and (e) of the Act. Section 300.600(a) (71 FR 46800) implements section 616(a)(1) of the Act, and requires States to monitor implementation of Part B of the Act by LEAs, enforce Part B of the Act in accordance with the statutory enforcement mechanisms that are appropriate for States to apply to LEAs, and annually report on performance under Part B of the Act.
Section 616(e) of the Act makes clear that the Secretary's enforcement actions are based, in large part, on annual determinations about a State's performance, as provided in section 616(d) of the Act. Based on the language in section 616(a)(1)(C)(ii) of the Act, which requires States to enforce Part B of the Act consistent with section 616(e), States also have an obligation to make annual determinations about each LEA's performance using the same categories, under section 616(d) of the Act, that the Secretary applies to States. We believe that Sec. 300.600(a) (71 FR 46800), however, should address more clearly States' responsibilities to make annual determinations about each LEA's performance. Therefore, we propose to amend Sec. 300.600(a) (71 FR 46800) to clarify that a State must annually review and make determinations about the performance of each LEA in the State, consistent with the Secretary's responsibility, under section 616(d) of the Act, to annually review and make determinations concerning the performance of each State. Specifically, we propose adding language to Sec. 300.600(a) to clarify that States must use the categories listed in Sec. 300.603(b)(1) (71 FR 46801) to make annual determinations about the performance of each LEA.
We also believe that it would be useful to clarify the specific enforcement mechanisms that a State must use, consistent with section 616(a)(1)(C)(ii) and (e) of the Act. The current regulations in Sec. 300.600(a) use regulatory citations to refer to the enforcement mechanisms in Sec. 300.604 that States must use. We propose to revise Sec. 300.600(a) (71 FR 46800) to identify specifically the enforcement mechanisms associated with each relevant regulatory citation. Therefore, we propose to reorganize Sec. 300.600(a) for clarity by indicating that the State must: (a) Under proposed paragraph (a)(1), monitor the implementation of Part B of the IDEA; (b) under proposed paragraph (a)(2), make annual determinations about the performance of each LEA using the categories in Sec. 300.603(b)(1); (c) under proposed paragraph (a)(3), enforce the requirements of the IDEA, consistent with Sec. 300.604, by using applicable enforcement mechanisms in Sec. 300.604(a)(1) (technical assistance), (a)(3) (conditions on funding of an LEA's grant), (b)(2)(i) (corrective action plan or improvement plan), (b)(2)(v) (withholding funds, in whole or in part, by the SEA), and (c)(2) (withholding funds, in whole or in part, by the SEA); and (d) under proposed paragraph (a)(4), report annually to the public on the performance of the State and each LEA under Part B of the Act, as provided in Sec. 300.602(b)(1)(A) and (b)(2).
Proposed Sec. 300.600(e) would clarify that a State, in exercising its monitoring responsibilities under Sec. 300.600(d), must ensure that when it identifies noncompliance with the requirements of Part B of the Act by its LEAs, the noncompliance is corrected as soon as possible, and in no case, later than one year after the State's identification.
We propose to add Sec. 300.600(e) because, based on our monitoring activities, we have determined that correction of noncompliance does not always occur in a timely manner. Noncompliance must be corrected in a timely manner to ensure that children with disabilities receive appropriate services and to ensure proper and effective implementation of the requirements of Part B of the IDEA. Throughout our 30 years of monitoring experience we have observed that, in most cases, when a State makes a good faith effort, the needed corrective actions can be accomplished and their effectiveness verified within one year. It is important to note that timely correction of noncompliance is critical to ensuring that children with disabilities receive a free appropriate public education. Allowing noncompliance to continue can negatively impact the education of great numbers of children with disabilities.
Correction of noncompliance means that a State requires a public
agency to revise any noncompliant policies, procedures and practices,
and verifies, through a followup review of documentation or
interviews, or both, that the noncompliant policies, procedures, and
practices are corrected. We believe that States must ensure correction
as soon as possible and that one year is a reasonable timeframe for an
LEA to correct noncompliant policies, procedures, and practices and for
the State to verify that the LEA is complying with the requirements
under the IDEA. For example, if an SEA determines that an LEA is not in
compliance with the requirement to make placement decisions consistent
with the least restrictive environment requirements of the Act, we
would expect the SEA to require corrective actions and verify
correction by determining that the LEA corrected any noncompliant
policies, procedures, or practices, and that placement teams, [[Page 27694]]
subsequent to those changes, were making placement decisions consistent with the requirements of the Act.
2. Timeframe for Public Reporting About LEA Performance
Section 300.602(b)(1)(i)(A) (71 FR 46801) implements section 616(b)(2)(C)(ii)(I) of the Act and requires a State to annually report to the public on the performance of each LEA in the State on the targets in the State's performance plan. The Act is silent, however, on when a State must provide this report to the public and the June 21, 2005 NPRM did not address this issue.
Following the publication of the final regulations on August 14,
2006 (71 FR 46540), the Department received many informal inquiries
from SEA personnel and other interested parties regarding the timeframe
for reporting information to the public about LEAs' performance
relative to its State's targets. To clarify States' obligations, we are
proposing in Sec. 300.602(b)(2) to require each State to report to the
public on the performance of each LEA located in the State on the
targets in the State's performance plan no later than 60 days following
a State's submission of its annual performance report (APR) to the
Secretary under Sec. 300.602(b). We believe this timeframe is
reasonable, and would not be burdensome to States. This timeframe
should ensure that each State provides timely information to the public.
3. Additional Information To Be Made Available to the Public
Section 300.602(b)(1)(i)(B) (71 FR 46801) implements section 616(b)(2)(C)(ii)(I) of the Act and requires each State to make its performance plan available through public means, including by posting it on the State's Web site and distributing it to the media and through public agencies. The Department received inquiries regarding whether other materials, such as a State's APRs to the Secretary and the annual report on the performance of each LEA on the targets in the State's performance plan, must be made available through the same public means, so that the public has easy access to State and LEA performance information. We believe that public accountability is served by requiring States to make these documents available to the public by the same means as their performance plans, and this requirement should not impose significant burden on States, because the documents are already required and could easily be made available to the public.
Public reporting of each LEA's performance on the targets in the State's performance plan is currently required by Sec.
300.602(b)(1)(i)(A) (71 FR 46801); however, the means by which such
public reporting may be completed are not specified. Additionally, a
State's APRs are public documents that would otherwise be available to
the public on request under State freedom of information laws.
Therefore, we propose to amend Sec. 300.602(b)(1)(i)(B) to require
States to make each of the following documents available through public
means (including, posting on the SEA's Web site, distributing to the
media, and distributing through public agencies): (a) The State's
performance plan, under Sec. 300.601(a); (b) the State's APRs, under
Sec. 300.602(b)(2); and (c) the State's annual reports on the performance of each LEA located in the State, under Sec.
300.602(b)(1)(i)(A). Additionally, in the interest of transparency and
public accountability, we strongly encourage States to report to the
public on any enforcement actions taken under Sec. 300.604. 4. Notifying the Public of Federal Enforcement Actions
Section 300.606 (71 FR 46802) implements section 616(e)(7) of the Act, which requires any State that has received notice of a determination under section 616(d)(2) of the Act to take steps to bring the pendency of an enforcement action, under section 616(e) of the Act, to the attention of the public within that State. However, Sec. 300.606 is unclear about when States are required to notify the public of enforcement actions. There is confusion in States because of this lack of clarity. Some States may make public the Department's determinations, enforcement actions, both determinations and enforcement actions, or neither determinations nor enforcement actions. This clarification would eliminate the confusion by delineating the public notification requirements. Therefore, we propose to clarify the circumstances under which public notice is required.
Specifically, we propose to amend Sec. 300.606 to require States to provide public notice of any enforcement action taken by the Secretary pursuant to Sec. 300.604. This change would clarify that States do not have to provide public notice of the Secretary's annual determinations, but must provide public notice when the Secretary takes an enforcement action as a result of those determinations. We believe that this clarification will minimize the States' reporting burden while providing the public with appropriate notice of the actions taken by the Secretary as a result of the determinations required by section 616(d) of the Act and Sec. 300.603. Additionally, we propose to amend Sec. 300.606 to specify that each State's public notice of enforcement actions must include, posting the notice on the State's Web site and distributing the notice to the media and through public agencies. Allocation of Funds Under Section 611 of the IDEA to LEAs That Are Not Serving Any Children With Disabilities (Sec. 300.705)
1. Subgrants to LEAs
We propose to add language to Sec. 300.705(a) (71 FR 46808), regarding subgrants to LEAs, to clarify that States are required to make a subgrant under section 611(f) of the Act to eligible LEAs, including public charter schools that operate as LEAs, even if an LEA is not serving any children with disabilities. This requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
The Department's Office of Inspector General (OIG) indicated, in an October 26, 2004 final audit report (2004 OIG Report), that the regulations and guidance implementing Part B of the Act in effect at that time did not address the application of the funding formula under section 611 of the Act for a charter school established as an LEA that does not have a child with a disability enrolled during the school's first year of operation. See http://www.ed.gov/about/offices/list/oig/ auditreports/a09e0014.pdf. The OIG recommended that we consider providing guidance on this issue. Given the OIG's recommendation and because the Act and its implementing regulations are silent on this issue, we believe that it is necessary to regulate to ensure that all States treat LEAs, including public charter schools that operate as LEAs, in the same manner when making a subgrant under section 611(f) of the Act to LEAs, including those LEAs that are not serving any children with disabilities.
Under section 611(f)(1) of the Act, each State must provide
subgrants to LEAs, including public charter schools that operate as
LEAs in the State, that have established their eligibility under
section 613 of the Act for use in accordance with Part B of the Act.
Under section 613(a) of the Act, an LEA is eligible for assistance
under Part B of the Act for a fiscal year if the LEA submits a plan
that provides assurances to the SEA that the LEA meets each of the
conditions in section 613(a) of the Act. There is no requirement in section
[[Page 27695]]
613(a) of the Act that an LEA must be serving children with
disabilities for an LEA to be eligible for a subgrant. We believe that
requiring States to make a subgrant to all eligible LEAs, including
public charter schools that operate as LEAs, would ensure that LEAs
have Part B funds available if they are needed to conduct child find
activities or to serve children with disabilities who subsequently
enroll or are identified during the year. The payment made to an LEA,
including a public charter school that operates as an LEA, that is not
serving any children with disabilities, would be based on enrollment
and poverty data and any base payment to which the LEA is entitled, in
accordance with the statutory formula in section 611(f)(2) of the Act.
Under the current regulations, a previouslyexisting LEA not serving any children with disabilities, is entitled to the base payment it received in the previous fiscal year. A newlycreated LEA, including a new public charter school LEA, is entitled to a base payment that is calculated by dividing the base allocation of LEAs that would have been responsible for serving children with disabilities now being served by the new LEA, among the new LEA and affected LEAs, based on the relative numbers of children with disabilities currently provided special education by each of the LEAs. See Sec. 300.705(b)(2)(i) (71 FR 46808 46809). For a newlycreated LEA that is not a public charter school LEA, a State has some flexibility in determining the number of children with disabilities currently provided special education by the newly created LEA. For example, a State may choose to determine the base payment of a newlycreated LEA based on the location of children with disabilities who were included in a previous count or a new count of children served that year. If the SEA determines that the newlycreated LEA is not serving any children with disabilities, based on its count, the newlycreated LEA would be entitled to a base payment of zero in its first year of operation.
In determining the base payment to which a new public charter school LEA would be entitled, States must comply with the requirements in section 5206 of the ESEA and its implementing regulations in subpart H of 34 CFR part 76 of the Education Department General Administrative Regulations (EDGAR). These requirements apply to a public charter school LEA that opens or significantly expands its enrollment. Specifically under 34 CFR 76.791(b), when making a subgrant to a new public charter school LEA, a State cannot rely on enrollment or eligibility data from a prior year when calculating the subgrant of a public charter school LEA opening for the first time. A State may, but is not required to, allocate funds to, or reserve funds for, an eligible new public charter school LEA based on reasonable estimates of projected enrollment at the public charter school LEA, in accordance with 34 CFR 76.789(b)(2). Once the public charter school LEA is open, the public charter school LEA must provide actual enrollment and eligibility data to the SEA at a time the SEA may reasonably require in accordance with 34 CFR 76.788(b)(2)(i). A State is not required to provide funds to a new public charter school LEA until the public charter school LEA provides the SEA with the required actual enrollment and eligibility data in accordance with 34 CFR 76.788(b)(2)(ii). If the SEA allocates funds based on estimated enrollment or eligibility data, the SEA must make appropriate adjustments to the amount of funds allocated to a new public charter school LEA, as well as to other LEAs, based on actual enrollment or eligibility data for the public charter school LEA, on or after the date the public charter school LEA first opens, in accordance with 34 CFR 76.796. If, on the date the SEA reasonably requires the new public charter school LEA to provide actual enrollment and eligibility data, which must be on or after the date the public charter school LEA opens, the new public charter school LEA is not serving any children with disabilities, its base payment in its first year of operation would be zero.
Because we believe it would be burdensome for States to comply with the requirement to distribute funds to eligible LEAs not currently serving children with disabilities after subgrants have been made for a fiscal year, we propose to add language to Sec. 300.705(a) to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
2. Base Payment Adjustments
The 2004 OIG Report also recommended that the Department consider issuing guidance on whether a public charter school LEA that has no children with disabilities enrolled in its first year of operation is entitled to a base payment adjustment in subsequent years if it enrolls children with disabilities. We agree that further clarification is necessary and propose to add a new paragraph (iv) to Sec. 300.705(b)(2) (71 FR 4680809), regarding base payment adjustments. The amended regulations would require that an LEA that received a base payment of zero in its first year of operation because it was serving no children with disabilities, and that subsequently provides special education and related services to children with disabilities, must receive a base payment adjustment for the fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. Under this provision, the State must divide the base allocation determined under Sec. 300.705(b)(1) for the LEAs that would have been responsible for serving children with disabilities now being served by the LEA, among the LEA and affected LEAs, based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21, currently provided special education by each of the LEAs.
Under this proposed change, an LEA, including a public charter school that operates as an LEA, that received a base payment of zero in its first year of operation, would be entitled to a base payment adjustment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. This adjusted base payment would apply to all subsequent years, unless the LEA's base payment is adjusted due to one of the other circumstances described in Sec. 300.705(b)(2) (71 FR 46808 46809). Because the current regulations do not require a base payment adjustment under these circumstances, and we believe that it would be burdensome for States to comply with this requirement after subgrants have been made for a fiscal year, we propose to add language to Sec. 300.705(b)(2)(iv), to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
3. Reallocation of Funds
Section 611(f)(3) of the Act and Sec. 300.705(c) (71 FR 46809) authorize an SEA to reallocate Part B funds not needed by an LEA, if the SEA determines that an LEA is adequately providing FAPE to all children with disabilities residing in the area served by that agency, with State and local funds. Under these statutory and regulatory provisions, States may, but are not required to, reallocate these Part B funds. The regulations in current Sec. 300.705(c) do not address reallocation of funds from an LEA that does not use its funds because it is not serving any children with disabilities.
[[Page 27696]]
We propose to amend Sec. 300.705(c) (71 FR 46809) to indicate
that, after an SEA distributes funds under Part B to an eligible LEA
that is not serving any children with disabilities, as provided in
proposed Sec. 300.705(a), the SEA must determine, within a reasonable
period of time prior to the end of the carryover period specified in 34
CFR 76.709, whether the LEA has obligated the funds. The SEA may, if it
chooses, reallocate any of those funds not obligated by the LEA to
other LEAs in the State that are not adequately providing special
education and related services to all children with disabilities
residing in the areas served by those other LEAs. The SEA may also
retain those funds for use at the State level to the extent the State
has not reserved the maximum amount of funds it is permitted to reserve
for Statelevel activities pursuant to Sec. 300.704. Given the fact
that small amounts of funds distributed late in their period of
availability to LEAs would be prone to lapse, we are clarifying that
States may use these funds at the State level, to the extent the State
has not set aside the maximum amount for Statelevel activities, in
order to increase the chance these funds would be well spent. Whether
funds are reallocated or retained for use at the Statelevel under
Sec. 300.705(c), they must be obligated prior to the close of the
period of availability for those funds. In sum, these proposed
regulations would help to ensure that the funds under section 611 of
the Act do not lapse, by making it clear that SEAs may redistribute
funds that have not been obligated by LEAs that currently are not
serving any children with disabilities or retain these funds for State level activities.
Allocation of Funds Under Section 619 of IDEA to LEAs That Are Not Serving Any Children With Disabilities (Sec. 300.815)
1. Subgrants to LEAs
We propose to add language to Sec. 300.815 (71 FR 46813), regarding subgrants to LEAs, to clarify that States are required to make a subgrant under section 619(g) of the Act to eligible LEAs, including public charter schools that operate as LEAs, that are responsible for providing education to children aged three through five years (preschool), even if an LEA is not serving any preschool children with disabilities. This requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
The Department's OIG indicated, in the 2004 OIG Report, that the regulations and guidance implementing Part B of the Act in effect at that time did not address the application of the funding formula under section 619 of the Act for a public charter school established as an LEA that does not have a preschool child with a disability enrolled during the school's first year of operation. See http://www.ed.gov/ about/offices/list/oig/auditreports/a09e0014.pdf. The OIG recommended that we consider providing guidance on this issue. Given the OIG's recommendation and because the Act and its implementing regulations are silent on this issue, we believe that it is necessary to regulate to ensure that all States treat LEAs, including public charter schools that operate as LEAs, in the same manner when making a subgrant under section 619(g) of the Act to LEAs, including those LEAs that are not serving any preschool children with disabilities.
Under section 619(g)(1) of the Act, each State must provide subgrants to LEAs, including public charter schools that operate as LEAs in the State, that have established their eligibility under section 613 of the Act. Under section 613(a) of the Act, an LEA is eligible for assistance under Part B of the Act for a fiscal year if the LEA submits a plan that provides assurances to the SEA that the LEA meets each of the conditions in section 613(a) of the Act. There is no requirement in section 613(a) of the Act that an LEA must be serving preschool children with disabilities in order for an LEA to be eligible for a subgrant. We believe that requiring States to make a subgrant to all eligible LEAs responsible for providing education to preschool children, including public charter schools that operate as LEAs, would ensure that LEAs have Part B funds available if they are needed to conduct child find activities or to serve preschool children with disabilities who subsequently enroll or are identified during the year. The payment made to an LEA, including a public charter school that operates as an LEA, that is not serving any preschool children with disabilities, would be based on enrollment and poverty data and any base payment to which the LEA is entitled, in accordance with the statutory formula in section 619(g) of the Act.
Under the current regulations, a previouslyexisting LEA not serving any preschool children with disabilities, is entitled to the base payment it received in the previous fiscal year. A newlycreated LEA, including a new public charter school LEA, is entitled to a base payment that is calculated by dividing the base allocation of LEAs that would have been responsible for serving preschool children with disabilities now being served by the new LEA, among the new LEA and affected LEAs, based on the relative numbers of preschool children with disabilities currently provided special education by each of the LEAs. See Sec. 300.816(b)(1) (71 FR 46813). For a newlycreated LEA that is not a public charter school LEA, a State has some flexibility in determining the number of preschool children with disabilities currently provided special education by the newlycreated LEA. For example, a State may choose to determine the base payment of a newly created LEA based on the location of preschool children with disabilities who were included in a previous count or a new count of preschool children served that year. If the SEA determines that the newlycreated LEA is not serving any preschool children with disabilities, based on its count, the newlycreated LEA would be entitled to a base payment of zero in its first year of operation.
In determining the base payment to which a new public charter
school LEA would be entitled, States must comply with the requirements
in section 5206 of the ESEA and its implementing regulations in subpart
H of 34 CFR part 76 of EDGAR. These requirements apply to a public
charter school LEA that opens or significantly expands its enrollment.
Specifically, under 34 CFR 76.791(b), when making a subgrant to a new
public charter school LEA, a State cannot rely on enrollment or
eligibility data from a prior year when calculating the subgrant of a
public charter school LEA opening for the first time. A State may, but
is not required to, allocate funds to, or reserve funds for, an
eligible new public charter school LEA based on reasonable estimates of
projected enrollment at the public charter school LEA, in accordance
with 34 CFR 76.789(b)(2). Once the public charter school LEA has
opened, the public charter school LEA must provide actual enrollment
and eligibility data to the SEA at a time the SEA may reasonably
require in accordance with 34 CFR 76.788(b)(2)(i). A State is not
required to provide funds to a new public charter school LEA until the
public charter school LEA provides the SEA with the required actual enrollment and eligibility data in accordance with 34 CFR
76.788(b)(2)(ii). If the SEA allocates funds based on estimated
enrollment or eligibility data, the SEA must make appropriate
adjustments to the amount of funds allocated to a new public [[Page 27697]]
charter school LEA, as well as to other LEAs, based on actual
enrollment or eligibility data for the public charter school LEA, on or
after the date the public charter school LEA first opens, in accordance
with 34 CFR 76.796. If, on the date the SEA reasonably requires the new
public charter school LEA to provide actual enrollment and eligibility
data, which must be on or after the date the public charter school LEA
opens, the new public charter school LEA is not serving any preschool
children with disabilities, its base payment in its first year of operation would be zero.
Because we believe it would be burdensome for States to comply with the requirement to distribute funds to eligible LEAs not currently serving preschool children with disabilities, after subgrants have been made for a fiscal year, we propose to add language to Sec. 300.815 to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
2. Base Payment Adjustments
The 2004 OIG Report also recommended that the Department consider issuing guidance on whether a public charter school LEA that has no preschool children with disabilities enrolled in its first year of operation is entitled to a base payment adjustment in subsequent years if it enrolls preschool children with disabilities. We agree that further clarification is necessary and propose to add a new paragraph (4) to Sec. 300.816(b) (71 FR 46813), regarding base payment adjustments. The amended regulations would require that an LEA that is responsible for providing education to preschool children, but that received a base payment of zero in its first year of operation because it was serving no preschool children with disabilities, and that subsequently provides special education and related services to preschool children with disabilities, must receive a base payment adjustment for the fiscal year after the first annual child count in which the LEA reports that it is serving any preschool children with disabilities. Under this provision, the State must divide the base allocation determined under Sec. 300.816(a) for the LEAs that would have been responsible for serving preschool children with disabilities now being served by the LEA, among the LEA and affected LEAs, based on the relative numbers of preschool children with disabilities currently provided special education by each of the LEAs.
Under this proposed change, an LEA, including a public charter school that operates as an LEA, that received a base payment of zero in its first year of operation, would be entitled to a base payment adjustment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any preschool children with disabilities. This adjusted base payment would apply to all subsequent years, unless the LEA's base payment is adjusted due to one of the other circumstances described in Sec. 300.816(b) (71 FR 46813). Because the current regulations do not require a base payment adjustment under these circumstances, and we believe it would be burdensome for States to comply with this requirement after subgrants have been made for a fiscal year, we propose to add language to Sec. 300.816(b)(4), to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
3. Reallocation of Funds
Section 619(g)(2) of the Act and Sec. 300.817 (71 FR 46813) authorize an SEA to reallocate section 619 funds not needed by an LEA, if the SEA determines that an LEA is adequately providing FAPE to all preschool children with disabilities residing in the area served by that agency, with State and local funds. Under these statutory and regulatory provisions, States may, but are not required to, reallocate these section 619 funds. The regulations in current Sec. 300.817 do not address reallocation of funds from an LEA that does not use its funds because it is not serving any preschool children with disabilities.
We propose to amend Sec. 300.817 (71 FR 46813) to indicate that,
after an SEA distributes funds under section 619 to an eligible LEA
that is not serving any preschool children with disabilities, as
provided in proposed Sec. 300.815, the SEA must determine, within a
reasonable period of time prior to the end of the carryover period
specified in 34 CFR 76.709, whether the LEA has obligated the funds.
The SEA may, if it chooses, reallocate any of those funds not obligated
by the LEA to other LEAs in the State that are not adequately providing
special education and related services to all preschool children with
disabilities residing in the areas served by those other LEAs. The SEA
may also retain those funds for use at the State level to the extent
the State has not reserved the maximum amount of funds it is permitted
to reserve for Statelevel activities pursuant to Sec. 300.812. Given
the fact that small amounts of funds distributed late in their period
of availability to LEAs would be prone to lapse, we are clarifying that
States may use these funds at the State level, to the extent the State
has not set aside the maximum amount for Statelevel activities, in
order to increase the chance these funds would be well spent. Whether
funds are reallocated or retained for use at the State level under
Sec. 300.817, they must be obligated prior to the close of the period
of availability for those funds. In sum, these proposed regulations
would help to ensure that the funds under section 619 of the Act do not
lapse, by making it clear that SEAs may redistribute funds not
obligated by LEAs that currently are not serving any children with
disabilities aged three through five or retain these funds for State level activities.
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, the Secretary must determine whether this regulatory action is ``significant'' and, therefore, subject to the requirements of the Executive Order and review by OMB. Section 3(f) of Executive Order 12866 defines a ``significant regulatory action'' as an action likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an ``economically significant'' rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Secretary has determined that this regulatory action is significant under section 3(f)(4) of the Executive Order.
Under Executive Order 12866, we have assessed the potential costs
and benefits of these proposed regulations. In conducting this
analysis, the Department examined the extent to which the amended
regulations would add to, or reduce, the costs for public agencies and
others in relation to the costs of implementing the program
regulations. Based on this analysis, the Secretary has concluded that
the amendments to the regulations would not impose significant net
costs in any one year. The amendments to the regulations would
primarily affect SEAs and LEAs responsible for carrying out [[Page 27698]]
the requirements of Part B of the Act as a condition of receiving
Federal financial assistance under the Act. For example, the amendments
to the regulations add language to further explain the intent of the
Act, clarify the intent of existing regulations, and add timeframes for
implementation. The amendments do not add provisions to the regulations
that would increase the fiscal responsibilities of, or burdens on, SEAs
or LEAs in implementing the proposed amendments. In fact, the
provisions related to parental revocation of consent may reduce burden
on, and costs to, LEAs by relieving them of the obligation to override
a parent's refusal to consent subsequent to the initiation of special
education services through informal means or through due process
procedures. The clarification relating to nonattorney representation
at due process hearings can be expected to reduce costs associated with disputes regarding nonattorney representation.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain Language in Government Writing'' require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such as the following:
To send any comments that concern how the Department could make these proposed regulations easier to understand see the instructions in the ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these amendments to the final regulations governing the Assistance to States for the Education of Children with Disabilities and the Preschool Grants for Children with Disabilities programs, would not have a significant economic effect on a substantial number of small entities. The small entities that would be affected by these proposed regulations regarding allocation of funds under sections 611 and 619 of the IDEA to LEAs, that are not serving any children with disabilities, are small LEAs, including charter schools that operate as LEAs. These small entities would benefit from the proposed changes that clarify their eligibility for funding in cases where they are not serving any children with disabilities. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 35013520), we have assessed the potential information collections in these proposed regulations that would be subject to review by the OMB. In conducting this analysis, the Department examined the extent to which the amended regulations would add information collection requirements for public agencies. Based on this analysis, the Secretary has concluded that these amendments to the Part B IDEA regulations would not impose additional information collection requirements. The proposed changes to Sec. 300.602(b)(1)(i)(B) (71 FR 46801) would(1) Add the State's APR to the list of documents that a State must make available through public means; and (2) specify that the SEA make the State's performance plan, the State's APR, and the State's annual reports on the performance of each LEA in the State available to the public by posting the documents on the State's Web site and distributing the documents to the media and through public agencies. Each State already is required to report to the Secretary on the annual performance of the State as a whole in its APR. Because the APR is a completed document, the additional time for reporting to the public would be minimal and is within the established reporting and recordkeeping estimate of current information collection 18200624 (71 FR 4675146752). Additionally, States already are required by current Sec. 300.602(a) and (b)(1)(i)(A) to analyze the performance of each LEA on the State's targets, and to report annually to the public on the performance of each LEA on the targets. The proposed regulation, by requiring that these documents be posted on the State's Web site and be distributed to the media and through public agencies, merely adds specificity about the means of public reporting. The additional time for reporting to the public through these means would be minimal and is within the established reporting and recordkeeping estimate of current information collection 18200624 (71 FR 4675146752).
Intergovernmental Review
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79 of EDGAR. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of the Department's specific plans and actions for this program.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Electronic Access to This Document
You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) at the following site: http:// www.ed.gov/news/fedregister.
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Note: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/ nara/index.html.
List of Subjects in 34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programseducation, Privacy, Charter schools, Reporting and recordkeeping requirements.
[[Page 27699]]
Dated: May 7, 2008.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes to amend title 34 of the Code of Federal Regulations as follows: PART 300ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
1. The authority citation for part 300 continues to read as follows:
Authority: 20 U.S.C. 1221e3, 1406, 14111419, unless otherwise noted.
* * * * *
2. Section 300.9 is amended by adding a new paragraph (c)(3).
The addition reads as follows:
Sec. 300.9 C
FOR FURTHER INFORMATION CONTACT
Tracy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5107, Potomac Center Plaza, Washington, DC 202022600. Telephone: (202) 2457605.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 18008778339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.