Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities; and Service Obligations Under Special Education-Personnel Development To Improve Services and Results for Children With Disabilities, 35782-35892 [05-11804]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Proposed Rules]
[Pages 35782-35892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11804]



[[Page 35781]]

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Part II





Department of Education





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34 CFR Parts 300, 301, and 304



Assistance to States for the Education of Children With Disabilities; 
Preschool Grants for Children With Disabilities; and Service 
Obligations Under Special Education--Personnel Development To Improve 
Services and Results for Children With Disabilities; Proposed Rule

Federal Register / Vol. 70, No. 118 / Tuesday, June 21, 2005 / 
Proposed Rules

[[Page 35782]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 300, 301 and 304

RIN 1820-AB57


Assistance to States for the Education of Children With 
Disabilities; Preschool Grants for Children With Disabilities; and 
Service Obligations Under Special Education--Personnel Development To 
Improve Services and Results for Children With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Secretary proposes 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. These 
amendments are needed to implement recently enacted changes made to the 
Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004.

DATES: To be considered, comments must be received at one of the 
addresses provided in the ADDRESSES section no later than 5 p.m. 
Washington, DC Time on September 6, 2005. Comments received after this 
time will not be considered.
    We will hold public meetings about this NPRM. The dates and times 
of the meetings and the cities in which the meetings will take place 
are in Public Meetings under Invitation to Comment elsewhere in this 
preamble.

ADDRESSES: Address all comments about these proposed regulations to 
Troy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, 
SW., Potomac Center Plaza, room 5126, Washington, DC 20202-2641. If you 
prefer to send your comments through the Internet, you may address them 
to us at the U.S. Government Web site: www.regulations.gov or you may 
send your Internet comments to us at the following address: 
IDEAComments@ed.gov.
    You must include the term IDEA-Part B in the subject line of your 
electronic message. Please submit your comments only one time, in order 
to ensure that we do not receive duplicate copies.
    If you want to comment on the information collection requirements, 
you must send your comments to the Office of Management and Budget at 
the address listed in the Paperwork Reduction Act section of this 
preamble. You may also send a copy of those comments to the U.S. 
Department of Education (Department) representative named in this 
section.
    All first-class and Priority mail sent to the Department is put 
through an irradiation process, which can result in lengthy delays in 
mail delivery. Please keep this in mind when sending your comments and 
please consider using commercial delivery services or e-mail in order 
to ensure timely delivery of your comments.

FOR FURTHER INFORMATION CONTACT: Troy R. Justesen. Telephone: (202) 
245-7468.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay System (FRS) at 1-800-877-8339.
    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.

SUPPLEMENTARY 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 these 
programs.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 5126, 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.

Public Meetings

    The dates and cities where the meetings about this NPRM will take 
place are listed below. Each meeting will take place from 1 to 4 p.m. 
and from 5 to 7 p.m.
    Friday, June 17, 2005 in Nashville, TN;
    Wednesday, June 22, 2005 in Sacramento, CA;
    Friday, June 24, 2005 in Las Vegas, NV;
    Monday, June 27, 2005 in New York, NY;
    Wednesday, June 29, 2005 in Chicago, IL;
    Thursday, July 7, 2005 in San Antonio, TX; and
    Tuesday, July 12, 2005 in Washington, DC.
    We provided more specific information on meeting locations in a 
notice published in the Federal Register (70 FR 30917).

Assistance to Individuals With Disabilities at the Public Meetings

    The meeting sites are accessible to individuals with disabilities, 
and sign language interpreters will be available. If you need an 
auxiliary aid or service other than a sign language interpreter (e.g., 
interpreting service such as oral, cued speech, or tactile interpreter, 
assisted listening device, or materials in an alternative format), 
notify the contact person listed in this NPRM at least two weeks before 
the scheduled meeting date. Although we will attempt to meet a request 
we receive after this date, we may not be able to make available the 
requested auxiliary aid or service because of insufficient time to 
arrange it.

Background

    On December 3, 2004, the Individuals with Disabilities Education 
Improvement Act of 2004 was enacted into law as Pub L. 108-446. The 
statute, as passed by Congress and signed by the President, 
reauthorizes and makes significant changes to the Individuals with 
Disabilities Education Act.
    The Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004 (Act or 
IDEA), is intended to help children with

[[Page 35783]]

disabilities achieve to high standards--by promoting accountability for 
results, enhancing parental involvement, and using proven practices and 
materials; and, also, by providing more flexibility and reducing 
paperwork burdens for teachers, States, and local school districts. 
Enactment of the new law provides an opportunity to consider 
improvements in the current regulations that would strengthen the 
Federal effort to ensure every child with a disability has available a 
free appropriate public education that--(1) is of high quality, and (2) 
is designed to achieve the high standards reflected in the Elementary 
and Secondary Education Act of 1965, as amended by the No Child Left 
Behind Act of 2001 (NCLB) and its implementing regulations.
    Changes to the current Part B regulations (34 CFR parts 300 and 
301) and Part D regulations (34 CFR part 304) are necessary in order 
for the Department to appropriately and effectively address the 
provisions of the new law and to assist State and local educational 
agencies in implementing their responsibilities under the new law. 
Changes to the current Part C regulations (part 303) also are necessary 
in order for the Department to appropriately and effectively address 
the provisions in Part C of the Act and to assist States in completing 
their responsibilities under the new law. The NPRM for the Part C 
regulations will be published soon.
    On December 29, 2004, the Secretary published a notice in the 
Federal Register requesting advice and recommendations from the public 
on regulatory issues under the Act, and announcing a series of seven 
public meetings during January and February of 2005 to seek further 
input and suggestions from the public for developing regulations based 
on the new statute.
    Over 6000 public comments were received in response to the Federal 
Register notice and at the seven public meetings, including letters 
from parents and public agency personnel, and parent-advocate and 
professional organizations. The comments addressed each major provision 
of the new law (such as discipline procedures, provisions on personnel 
qualifications and highly qualified teachers, provisions related to 
evaluation of children and individualized education programs, 
participation of private school children with disabilities, and 
provisions on early intervening services). These comments were reviewed 
and considered in developing this NPRM. The Secretary appreciates the 
interest and thoughtful attention of the commenters responding to the 
December 29, 2004 notice and participating in the seven public 
meetings.

General Proposed Regulatory Plan and Structure

    In developing this NPRM, we have elected to construct one 
comprehensive, freestanding document that incorporates virtually all 
requirements from the new law along with the applicable regulations, 
rather than publishing a regulation that does not include statutory 
provisions. The rationale for doing this is to create a single 
reference document for parents, State personnel, school personnel, and 
others to use, rather than being forced to shift between one document 
for regulations and a separate document for the statute. This approach 
was used in developing the current regulations. Although this approach 
will result in a larger document, it is our impression that various 
groups strongly support continuing this practice.
    In addition, we have reorganized the regulations by following the 
general order and structure of provisions in the statute, rather than 
using the arrangement of the current regulations. We believe this 
change in organization will be helpful to parents, State and local 
educational agency personnel, and the public both in reading the 
regulations, and in finding the direct link between a given statutory 
requirement and the regulation related to that requirement. Thus, in 
general, the requirements related to a given statutory section (e.g., 
State eligibility in section 612 of the Act) will be included in one 
location (subpart B) and in the same general order as in the statute, 
rather than being spread throughout four or more subparts, as the 
statutory sections are in the current regulations.
    As restructured in this NPRM, the proposed regulations are divided 
into eight major subparts, each of which is directly linked to, and 
comports with, the general order of provisions in a specific section of 
the Act. For example, we have revised subpart G of the regulations to 
include all provisions regarding the allotment and use of funds from 
section 611 of the Act, rather than having those provisions dispersed 
among several different subparts, as they are in the current 
regulations.
    In addition, we have removed part 301 (Preschool Grants for 
Children with Disabilities) from title 34 and placed the Preschool 
Grants provisions from section 619 of the Act into a new subpart H 
under part 300. This restructuring and consolidation of the financial 
requirements from both the statute and regulations into a specific 
location in the regulations should be useful to State and local 
administrators and others in finding the relevant statutory and 
regulatory provisions regarding both the Assistance to States and 
Preschool Grants programs.
    In reviewing the current regulations, we considered their continued 
necessity and relevance in light of a number of factors: Whether 
statutory changes required changes to existing regulations; whether 
changes in other laws, or the passage of time and changed conditions 
rendered the regulations obsolete or unnecessary; whether less 
burdensome alternatives or greater flexibility was appropriate; and 
whether the regulation could be changed in light of section 607(b) of 
the Act (section 607(b) of the Act provides that the Secretary may not 
publish final regulations that would procedurally or substantively 
lessen the protections provided to children with disabilities in the 
regulations that were in effect on July 20, 1983, except to the extent 
that such regulation reflects the clear and unequivocal intent of the 
Congress in legislation). In the following discussion of proposed 
regulatory changes, we identify the changes that would be made to 
existing regulations after consideration of these factors.

Proposed Regulatory Changes

Subpart A--General

Purposes and Applicability
    Proposed Sec.  300.1 would be revised only to add, consistent with 
a change to section 601(d)(1)(A) of the Act, the words ``further 
education'' in paragraph (a).
    Except for the section heading, proposed Sec.  300.2 would be 
unchanged from the existing provision.
    Section 300.3 of the current regulations would be removed as 
unnecessary, because the regulations listed in this section already 
apply, by their own terms, to States and local agencies under Part B of 
the Act.

Definitions Used in This Part

    As in the current regulations, proposed Sec.  300.4 (Act) would 
refer to the Individuals with Disabilities Education Act, as amended.
    Proposed Sec.  300.5 (Assistive technology device) would retain the 
current definition, and include the new language from section 602(1) of 
the Act that the term does not include a medical device that is 
surgically implanted, or the replacement of that device.
    Proposed Sec.  300.6 (Assistive technology service) would be 
consistent with the current regulatory definition of that term.

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    Proposed Sec.  300.7 (Charter school) would define the term to have 
the meaning given that term in section 5210(1) of the Elementary and 
Secondary Education Act of 1965, as amended, 20 U.S.C 6301 et seq. 
(ESEA).
    Proposed Sec.  300.8 (Child with a disability) would make the 
following changes to the current regulatory definition in Sec.  300.7: 
In paragraphs (a)(1) and (a)(2) cross-references to evaluation 
procedures would be updated to reflect the placement of those 
procedures in these proposed regulations. The parenthetical following 
``serious emotional disturbance'' in paragraph (a)(1) would be revised 
to read ``referred to in this part as emotional disturbance.'' The 
cross-reference regarding related services in the definition of special 
education in paragraph (a)(2)(ii) would be updated. In paragraph (b), a 
parenthetical phrase would be added following the reference to children 
aged three through nine to clarify that ``developmental delay'' could 
be used for any subset of that age range, including children three 
through five. This reflects a change in section 602(3)(B) of the Act. 
Paragraph (c)(8) (Orthopedic impairment) would revise current Sec.  
300.7(c)(8) by removing the parenthetical listing of examples, because 
these examples are outdated.
    Finally, in paragraph (c)(10)(i) of proposed Sec.  300.8, which 
contains a definition of the term specific learning disability, the 
word ``the'' would be substituted for ``an'' before the phrase 
``imperfect ability to listen, think, * * *'' reflecting the addition 
of ``the'' in section 602(30)(A) of the Act.
    Proposed Sec.  300.9 would incorporate the regulatory definition of 
Consent that appears in Sec.  300.500(b)(1) of the current regulations. 
The current provision in Sec.  300.8 that cross-references the Sec.  
300.500 definition of consent, would be removed.
    Consistent with section 602(4) of the Act, proposed Sec.  300.10 
would add the new definition of Core academic subjects as that term is 
defined in section 9101 of the ESEA.
    Proposed Sec.  300.11 would revise the definitions of Day; business 
day; school day in current Sec.  300.9 only by updating the cross-
reference to the regulatory requirement in proposed Sec.  300.148(c) 
concerning a limitation on reimbursement for private school placements.
    The regulatory definition of Educational service agency currently 
in Sec.  300.10 would be moved to proposed Sec.  300.12 and revised by 
adding the word ``schools'' after ``public elementary'' in paragraph 
(a)(2) of this section to conform with the language in section 602(5) 
of the Act. In proposed paragraph (c), the provision concerning 
entities that meet the definition of intermediate educational unit in 
section 602(23) of the Act as in effect prior to June 4, 1997 would be 
retained. There are entities still providing special education and 
related services to preschool children with disabilities that meet the 
definition of intermediate educational unit, but may not meet the 
definition of educational service agency because they are not 
responsible for the provision of special education and related services 
provided within public elementary schools of the State.
    Proposed Sec.  300.13 would reflect the definition of Elementary 
school in section 602(6) of the Act, including the new language 
specifying that the term includes a public elementary charter school.
    Proposed Sec.  300.14 would reflect the current statutory 
definition of Equipment and would be substantially the same as Sec.  
300.11 of the current regulations.
    Proposed Sec.  300.15 would incorporate the regulatory definition 
of Evaluation that appears in the current regulations in Sec.  
300.500(b)(2), with the cross-reference to the evaluation procedures 
updated to reflect their placement in these proposed regulations and to 
include the additional procedures regarding specific learning 
disability. The current regulation, regarding evaluation in Sec.  
300.12, which cross-references the definition in current Sec.  300.500, 
would be removed as duplicative and unnecessary.
    Proposed Sec.  300.16 (Excess costs), defined in the current 
regulations in Sec.  300.184, would be revised consistent with changes 
in section 602(8) of the Act. This provision is substantially the same 
as the current definition in Sec.  300.184(b).
    Proposed Sec.  300.17 (free appropriate public education or FAPE) 
would incorporate the provisions of section 602(9) of the Act and be 
the same as the definition in Sec.  300.13 of the current regulations, 
except that Sec.  300.17(d) would be updated to add a cross-reference 
to the individualized education program (IEP) requirements.
    A new definition of highly qualified special education teacher 
would be added in proposed Sec.  300.18, reflecting the addition of a 
definition of this term to the statute in section 602(10) of the Act, 
with the following modifications: Paragraph (a)(1) of this section 
would specify that the term ``highly qualified'' applies only to public 
elementary school and secondary school special education teachers, 
consistent with the definition of that term in section 9101 of the 
ESEA, which is incorporated into the Act and applied to special 
education teachers in section 602(10) of the Act. We do not believe 
that the ``highly qualified'' requirements of the ESEA, or, by 
statutory cross-reference, the Act, were intended to apply to private 
school teachers, even in situations where a child with a disability is 
placed in, or referred to, a private school by a public agency in order 
to carry out the public agency's responsibilities under this part, 
consistent with section 612(a)(10)(B) of the Act and proposed Sec.  
300.146. This issue also is addressed in proposed Sec.  300.156.
    Proposed Sec.  300.18(b)(2) would specify that a teacher 
participating in an alternate route to certification program would be 
considered to be fully certified under certain circumstances. The 
standard to be applied to an alternate route to certification program 
would be the same as for those programs under the regulations 
implementing title I of the ESEA in 34 CFR Sec.  200.56(a)(2)(ii). This 
would provide for consistency in the interpretation and application of 
the alternate route to certification provisions across these programs.
    In proposed Sec.  300.18(b)(3), a provision would be added to 
clarify that a public elementary or secondary school teacher who is not 
teaching a core academic subject would be considered highly qualified 
if the teacher meets the requirements of proposed Sec.  300.18(b)(1) 
and (2). This provision would reflect note 21 in U.S. House of 
Representatives Conference Report No. 108-779, (Conf. Rpt.) that 
special education teachers who are only providing consultative services 
to other teachers who are highly qualified to teach particular academic 
subjects, could be highly qualified by meeting the special education 
qualifications alone. Proposed Sec.  300.18(c)(2) would clarify that 
all special education teachers who are exclusively teaching students 
who are assessed based on alternate academic achievement standards, as 
permitted under the regulations implementing title I of the ESEA, at a 
minimum, have subject matter knowledge at the elementary level or 
above, as determined by the State, needed to effectively teach to those 
standards. Note 21 in the Conf. Rpt. calls for teachers exclusively 
teaching students who are assessed based on alternate academic 
achievement standards above the elementary level to have a high level 
of competency in each of the core academic subjects taught.
    The proposed regulation would not specifically address the use of a 
separate ``high objective uniform State standard of evaluation'' 
(HOUSSE) for special

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education teachers. However, note 21 in the Conf. Rpt. recognized that 
some States have developed HOUSSE standards for special education 
teachers, and indicated that those separate HOUSSE standards should be 
permitted, including single HOUSSE evaluations that cover multiple 
subjects, as long as those adaptations of a State's HOUSSE for use with 
special education teachers would not establish a lesser standard for 
the content knowledge requirements for special education teachers. We 
request comment on whether additional regulatory action is needed on 
this point. Proposed Sec.  300.18(g) would clarify that the 
requirements in proposed Sec.  300.18 regarding highly qualified 
special education teachers do not apply with respect to teachers hired 
by private elementary and secondary schools.
    Proposed Sec.  300.19 would reflect the definition of Homeless 
children added to the statute in section 602(11) of the Act.
    The definition of include in proposed Sec.  300.20 is substantively 
unchanged from the current regulatory provision in Sec.  300.14.
    The proposed definitions of Indian and Indian tribe in Sec.  300.21 
would incorporate the definitions of those terms currently in Sec.  
300.264 and reflect the language in sections 602(12) and 602(13) of the 
Act. The Department of Education seeks comment on the definition of 
Indian tribe because the current definition includes state tribes. The 
Department of the Interior is only authorized to provide services to 
Federally Recognized tribes, therefore, States should provide comments 
on how they would provide these services to State recognized tribes. 
Nothing in this definition is intended to require the BIA to provide 
services or funding to a State Indian tribe for which BIA is not 
responsible.
    The definition of Individualized education program or IEP in 
proposed Sec.  300.22 would incorporate the regulatory definition of 
that term currently in Sec.  300.340(a), and would reflect the language 
in section 602(14) of the Act. The current Sec.  300.15 cross-
referencing the Sec.  300.340 definition would be removed as 
duplicative and unnecessary.
    Proposed Sec.  300.23 (Individualized education program team) would 
be the same as Sec.  300.16 of the current regulations. The definition 
in proposed Sec.  300.24 of Individualized family service plan would be 
the same as the current regulatory definition in Sec.  300.17, except 
that proposed Sec.  300.24 would appropriately refer to the current 
statutory definition of IFSP in section 636 of the Act and not to the 
regulatory definition in 34 CFR 303.340(b).
    Proposed Sec.  300.25 (Infant or toddler with a disability), Sec.  
300.26 (Institution of higher education), and Sec.  300.27 (Limited 
English proficient) would reflect statutory definitions of those terms 
in sections 602(16), 602(17), and 602(18) of the Act, respectively.
    Proposed Sec.  300.28 (Local educational agency or LEA) is 
substantively unchanged from the current regulatory definition in Sec.  
300.18, and would reflect the definition of that term in section 
602(19) of the Act.
    Proposed Sec.  300.29 (Native language) is substantively unchanged 
from the current regulatory definition of that term in Sec.  300.19.
    Proposed Sec.  300.30 (Parent) would revise the current regulatory 
definition of that term in Sec.  300.20 to better reflect the revised 
statutory definition of Parent in section 602(23) of the Act. Proposed 
Sec.  300.30(a)(2) would reflect the provision regarding a State law 
prohibition on when a foster parent can be considered a parent, but 
would add language to recognize that similar restrictions may exist in 
State regulations or in contractual agreements between a State or local 
entity and the foster parent, and should be accorded similar deference. 
Proposed Sec.  300.30(b)(1) would provide that the natural or adoptive 
parent would be presumed to be the parent for purposes of the 
regulations if that person were attempting to act as the parent under 
proposed Sec.  300.30 and more than one person is qualified to act as a 
parent, unless that person does not have legal authority to make 
educational decisions for the child, or there is a judicial order or 
decree specifying some other person to act as the parent under Part B 
of the Act. Proposed Sec.  300.30(b)(2) would provide that if a person 
or persons is specified in a judicial order or decree to act as the 
parent for purposes of Sec.  300.30, that person would be the parent 
under Part B of the Act. Proposed Sec.  300.30(b)(2) would, however, 
exclude an agency involved in the education or care of the child from 
serving as a parent, consistent with the statutory prohibition that 
applies to surrogate parents in sections 615(b)(2) and 639(a)(5) of the 
Act. The provisions in proposed Sec.  300.30(b) should assist schools 
and public agencies in identifying the appropriate person to serve as 
the parent under Part B of the Act, especially in those difficult 
situations in which more than one individual wants to make educational 
decisions.
    Proposed Sec.  300.31 would add a new definition of Parent training 
and information center reflecting section 602(25) of the Act. This term 
would be used in proposed Sec.  300.506.
    Proposed Sec. Sec.  300.32 (Personally identifiable) and 300.33 
(Public agency) are substantively unchanged from current regulatory 
definitions of these terms in Sec.  300.500(b)(3) and Sec.  300.22, 
respectively. We note that throughout these proposed regulations, 
public agency has been used to make clear where the requirements do not 
apply only to States and LEAs.
    The current regulatory definition of Qualified personnel in Sec.  
300.23 would be removed, because personnel qualifications would be 
adequately addressed in proposed Sec.  300.156.
    Proposed Sec.  300.34 (Related services), reflecting changes in 
section 602(26) of the Act, would amend the current regulatory 
definition in Sec.  300.24 in the following ways: In proposed Sec.  
300.34(a) ``interpreting services'' and ``school nurse services 
designed to enable a child with a disability to receive a free 
appropriate public education as described in the IEP of the child'' 
would be added. Proposed Sec.  300.34(b) would be added to address the 
statutory limitation on surgically implanted medical devices. Paragraph 
(b) also would specify that related services would not include the 
costs of maximizing the functioning of a surgically implanted device or 
the maintenance of a surgically implanted device. School districts 
should not be required to bear these costs, which are integral to the 
functioning of the implanted device. Proposed paragraph (c) would 
include new definitions of Interpreting services and School nurse 
services. The list is not intended to be exhaustive and other 
therapies, as well as other services not listed, may be included in a 
child's IEP if the IEP Team determines that a particular service is 
needed for a child to benefit from special education. In all cases 
concerning related services, the IEP Team's determination about 
appropriate services must be reflected in the child's IEP and those 
listed services must be provided in accordance with the IEP at public 
expense and at no cost to the parents. Nothing in the Act or in the 
definition of related services requires the provision of a related 
service to a child unless the child's IEP Team has determined that the 
service is required in order for the child to benefit from special 
education and has included the service on the child's IEP.
    Proposed Sec.  300.35 (Secondary school) would revise the current 
regulatory definition of this term in Sec.  300.25 to add the new 
statutory language specifying

[[Page 35786]]

that the term includes a public secondary charter school.
    Proposed Sec.  300.36 (Services plan) would add a new definition 
that would describe the content, development, and implementation of 
plans for parentally-placed private school children with disabilities 
who have been designated to receive services. The definition would 
cross-reference the specific requirements for the provision of services 
to parentally-placed private school children with disabilities in 
proposed Sec. Sec.  300.132 and 300.137 through 300.139.
    Proposed Sec.  300.37 (Secretary) would reflect the statutory 
definition of that term in section 602(28) of the Act.
    Proposed Sec. Sec.  300.38 (Special education), 300.39 (State), and 
300.41 (Supplementary aids and services) would be substantively 
unchanged from current regulatory provisions in Sec. Sec.  300.26, 
300.27 and 300.28, respectively, except that State would be revised to 
reference an exception when the term is used in subparts G and H of 
these regulations. Proposed Sec.  300.38(b)(5) would revise the 
definition of vocational education in current Sec.  300.26(b)(5) to 
include the definition of vocational and technical education and the 
definition of vocational and technical education in the Carl D. Perkins 
Vocational and Applied Technology Act of 1988, as amended, 20 U.S.C. 
2301, 2302(29) would be added in proposed Sec.  300.38(b)(6).
    Proposed Sec.  300.42 (Transition services) would revise the 
current regulatory definition of the term in Sec.  300.29, reflecting 
new statutory language in section 602(34) of the Act.
    New proposed definitions would be added in Sec. Sec.  300.43 and 
300.44 reflecting the statutory definitions of Universal design and 
Ward of the State, respectively. The definition of Ward of the State 
underscores that the determination of whether a child is a ward of the 
State is limited to applicable State law. Finally, the current list of 
definitions found in the Education Department General Administrative 
Regulations (EDGAR) in Sec.  300.30 would be removed as unnecessary, as 
these definitions already apply by their own terms, except that the 
definition of Secretary in proposed Sec.  300.37 and State educational 
agency in proposed Sec.  300.40, which are included in the current 
EDGAR list, would be included in the proposed regulation because they 
also are defined in section 602(28) and (32) of the Act.

Subpart B--State Eligibility

General
    Revised subpart B would incorporate current provisions from other 
subparts that, under the current regulations, are cross-referenced in 
subpart B. These changes would be consistent with the statutory 
structure. Some of the provisions that are consolidated in proposed 
subpart B would include: certain provisions related to FAPE, currently 
in subpart C; provisions regarding private school children with 
disabilities, currently in subpart D; the least restrictive environment 
(LRE) provisions, currently in subpart E; and the State complaint 
procedures, currently in subpart F.
    Proposed Sec.  300.100 would revise current Sec.  300.110 to 
provide for the submission of a plan that includes assurances related 
to the conditions of eligibility for assistance. The requirement that 
States submit copies of all State statutes, regulations, and other 
documents would be removed from current Sec.  300.110, consistent with 
the changes in Section 612(a) of the Act. Consistent with this 
approach, these proposed regulations would eliminate from the current 
regulations throughout subpart B all provisions requiring that policies 
and procedures be on file with the Secretary.

FAPE Requirements

    Proposed Sec.  300.101 would incorporate the current general FAPE 
provision in Sec.  300.121(a), and would include a reference to the 
SEA's obligation to make FAPE available to children who have been 
suspended or expelled from school, consistent with proposed Sec.  
300.530(d). Consistent with changes to the statute, the current 
provisions in Sec.  300.121(b) regarding submission of State 
documentation, such as statutes and court orders, would be removed. The 
current provisions in Sec.  300.121(c), regarding FAPE beginning at age 
three, generally would be retained. The current provisions in Sec.  
300.121(e), regarding children advancing from grade to grade, also 
would be retained. These provisions provide useful information on 
appropriate implementation of public agency responsibilities under Part 
B. Section 300.121(d) of the current regulations would not be retained 
in these proposed regulations. Instead, the obligation to ensure the 
right to FAPE for children who have been suspended or expelled from 
school would be addressed in proposed Sec.  300.530(d) in subpart E.
    Proposed Sec.  300.102 would retain the current exceptions to FAPE 
in Sec.  300.122. For consistency with the statute, references to 
``students'' would be changed to ``children.'' The proposed regulation 
would contain a new provision regarding children who are eligible for 
services under section 619 of the Act, but who are receiving early 
intervention services under Part C, consistent with the statutory 
language in section 612(a)(1)(c) of the Act. Proposed Sec.  300.102(b) 
also would include a new provision that would require that information 
regarding exceptions to FAPE be current and accurate. This information 
is necessary for the Department to allocate funds accurately among the 
States.

Other FAPE Requirements

    Proposed Sec. Sec.  300.103, 300.104, and 300.105(b), regarding 
methods and payments; residential placement; and proper functioning of 
hearing aids would retain the provisions from Sec. Sec.  300.301 
through 300.303 of the current regulations, respectively. Proposed 
Sec.  300.105(a), regarding assistive technology, would retain the 
provisions in current Sec.  300.308.
    Proposed Sec. Sec.  300.106 through 300.108, regarding extended 
school year services, nonacademic services, and physical education, 
would retain the current provisions in Sec.  300.309, Sec.  300.306, 
and Sec.  300.307, respectively. Proposed Sec.  300.109, regarding a 
full educational opportunity goal, generally would retain the current 
provisions in Sec. Sec.  300.123 and 300.124, but would combine them, 
consistent with section 612(a)(2) of the Act.
    Proposed Sec.  300.110, regarding program options, would retain the 
current provisions in Sec.  300.305.
    Proposed Sec.  300.111, regarding child find, generally would 
retain the current provisions in Sec.  300.125 and, consistent with 
changes in section 612(a)(3) of the Act, would specifically reference 
children who are homeless or are wards of the State. In addition, 
proposed Sec.  300.111(b) would incorporate the provisions related to 
developmental delay currently in Sec.  300.313(a). The proposed 
regulation would remove the current provisions in Sec.  300.313(b) 
regarding use of individual disability categories and Sec.  300.313(c) 
regarding a common definition of developmental delay as they are 
unnecessary. States have the option of using developmental delay and 
other eligibility categories for children with disabilities aged three 
through nine and subsets of that age range and of using a common 
developmental delay definition for Parts B and C of the Act. The 
proposed regulations generally would retain the current provisions in 
Sec.  300.125(a)(2) and (d), regarding other children included in

[[Page 35787]]

child find and the construction of Part B of the Act as not requiring 
that children be classified by their disability, as long as each child 
who needs special education and related services is regarded as having 
a disability under the Act. Consistent with other changes in these 
regulations to remove eligibility documentation requirements, the 
proposed regulation would remove the provision in Sec.  300.125(b) of 
the current regulations that the State must have policies and 
procedures on file with the Secretary. The proposed regulation also 
would remove the provision in Sec.  300.125(c) of the current 
regulations, regarding child find for children from birth through age 
two when the SEA is the lead agency for the Part C program, because 
this is a clarification that does not need to be in the regulations. 
The child find requirement under these regulations has traditionally 
been interpreted to mean identifying and evaluating children from 
birth. While child find under Part C of the Act overlaps, in part, with 
Part B of the Act, the coordination of child find activities under Part 
B and Part C is an implementation matter that would be best left to 
each State. Nothing in the Act prohibits the Part C lead agency's 
participation, with the agreement of the SEA, in the actual 
implementation of child find activities for infants and toddlers with 
disabilities.
    Proposed Sec.  300.112, regarding individualized education programs 
(IEPs), would revise the current provisions in Sec.  300.128 by adding 
an exception that references the requirement in proposed Sec.  
300.300(b)(3)(ii). That exception would provide that if the parent of a 
child with a disability refuses to consent to the initial provision of 
special education and related services, or the parent fails to respond 
to a request to provide consent for the initial provision of special 
education and related services, the public agency is not required to 
convene an IEP meeting to develop an IEP for the child for which the 
public agency requests such consent. Consistent with other changes in 
these proposed regulations, the proposed regulation would remove Sec.  
300.128(b), which requires the State to have policies and procedures on 
file with the Secretary.

Least Restrictive Environment

    Proposed Sec.  300.114, regarding LRE, generally would retain the 
current provisions in Sec.  300.550(b). The proposed regulation would 
remove the documentation requirements of Sec.  300.130(a) and Sec.  
300.550(a) and (b), consistent with other changes in these proposed 
regulations. The current provision related to an assurance regarding a 
State's funding mechanism in Sec.  300.130(b)(2) would be retained in 
proposed Sec.  300.114(b)(1). This section would provide that a State 
funding mechanism must not result in placements that violate the LRE 
provisions and that the State must not use a funding mechanism that 
distributes funds on the basis of the type of setting in which a child 
is served that will result in the failure to provide a child with a 
disability FAPE according to the unique needs of the child, as 
described in the child's IEP. This change is consistent with language 
in section 612(a)(5)(B)(i) of the Act.
    With regard to section 612(a)(5)(B)(i) of the Act, note 89 in the 
Conf. Rpt. states that some States continue to use funding mechanisms 
that provide financial incentives for, and disincentives against, 
certain placements and these new provisions in the statute were added 
to prohibit States from maintaining funding mechanisms that violate 
appropriate placement decisions, not to require States to change 
funding mechanisms that support appropriate placement decisions. Note 
89 of the Conf. Rpt. indicates that it is the intent of the changes to 
section 612(a)(5)(B) of the Act to prevent State funding mechanisms 
from affecting appropriate placement decisions for children with 
disabilities. As also set out in note 89, the law requires that each 
public agency ensure that a continuum of alternative placements 
(instruction in regular classes, special classes, special schools, home 
instruction, and instruction in hospitals and institutions) is 
available to meet the needs of children with disabilities for special 
education and related services. The note further explains that State 
funding mechanisms must be in place to ensure funding is available to 
support the requirements of this provision, not to provide an incentive 
or disincentive for placement and that the LRE principle is intended to 
ensure that a child with a disability is served in a setting where the 
child can be educated successfully in the least restrictive setting. 
Proposed paragraph (b)(2) would replace Sec.  300.130(b)(2) and require 
a State that does not have policies and procedures to this effect to 
provide an assurance as soon as feasible to ensure that the mechanism 
does not result in placements that violate the LRE principle. The other 
provisions regarding LRE would be retained with appropriate updating of 
cross-references, as described in the following paragraphs.
    Proposed Sec.  300.115, regarding continuum of placements, would 
retain the language currently in Sec.  300.551. Proposed Sec.  300.116, 
regarding placements, would retain the language currently in Sec.  
300.552, except that paragraph (b)(3) would be revised to clarify that 
a child's placement must be as close as possible to the child's home 
unless the parent agrees otherwise. Finally, Sec.  300.116(c) would be 
revised to require that each public agency ensure that, unless the IEP 
of a child with a disability requires some other arrangement, the child 
is educated in the school he or she would attend if not disabled, 
unless the parent agrees otherwise. This additional language, ``unless 
the parent agrees otherwise,'' in paragraphs (b)(3) and (c) would 
clarify that parents can choose to send their child to a charter 
school, magnet school, or other specialized school without causing a 
violation of the LRE mandate.
    Proposed Sec.  300.117, regarding nonacademic settings, would 
retain the current provisions in Sec.  300.553. Proposed Sec.  300.118, 
regarding children in public or private institutions, would retain the 
current provisions in Sec.  300.554.
    Proposed Sec.  300.119, regarding technical assistance and 
training, would retain the current provisions in Sec.  300.555.
    Proposed Sec.  300.120, regarding LRE monitoring activities, would 
retain the current provisions in Sec.  300.556.

Additional Eligibility Requirements

    Proposed Sec.  300.121, regarding procedural safeguards, would 
retain the current provision in Sec.  300.129(a), but would remove the 
provision in Sec.  300.129(b) regarding having the safeguards on file 
with the Secretary, consistent with statutory changes eliminating 
requirements that States file documentation with the Secretary.
    Proposed Sec.  300.122 would remove the current requirement in 
Sec.  300.126 that evaluation policies and procedures be on file with 
the Secretary, consistent with statutory changes discussed previously. 
Consistent with the provision in section 612(a)(7) of the Act, proposed 
Sec.  300.122 would require that children with disabilities be 
evaluated consistent with the requirements in subpart D of these 
proposed regulations. The relevant requirements are addressed elsewhere 
in this preamble in the discussion of subpart D.
    Proposed Sec.  300.123 would remove the current requirement in 
Sec.  300.127 that policies and procedures related to confidentiality 
be on file with the Secretary and the criteria the Secretary uses to 
evaluate those policies and

[[Page 35788]]

procedures, consistent with statutory changes discussed previously. 
Instead, the proposed regulation would require that public agencies 
comply with subpart F of these regulations relating to the 
confidentiality of records and information. The relevant requirements 
are addressed elsewhere in this preamble in the discussion of subpart 
F.
    Proposed Sec.  300.124, regarding the transition of children from 
the Part C program to preschool programs under Part B, would remove the 
current requirement in Sec.  300.132 that policies and procedures 
related to confidentiality be on file with the Secretary, as discussed 
previously. The proposed regulation generally would retain the other 
provisions of Sec.  300.132. Proposed Sec.  300.124(c) would clarify 
that only affected LEAs must participate in transition planning 
conferences arranged by the designated lead agency under Part C of the 
Act.

Children in Private Schools

    Proposed Sec.  300.129, concerning State responsibilities regarding 
children in private schools, would revise the current requirements in 
Sec.  300.133, by removing the requirement that a State must have on 
file with the Secretary policies and procedures that ensure that the 
requirements of current Sec. Sec.  300.400 through 300.403 and current 
Sec. Sec.  300.460 through 300.462 are met. Proposed Sec.  300.129 
would make clear that the State must have in effect policies and 
procedures that ensure that LEAs and, if appropriate, the SEA, meet the 
private school requirements in proposed Sec. Sec.  300.130 through 
300.148.

Children With Disabilities Enrolled by Their Parents in Private Schools

    Proposed Sec.  300.130, regarding the definition of parentally-
placed private school children with disabilities, would incorporate the 
current provisions in Sec.  300.450.
    Proposed Sec.  300.131, regarding child find for parentally-placed 
private school children with disabilities, generally would retain the 
current requirements in Sec.  300.451, but would clarify, consistent 
with the changes in proposed Sec. Sec.  300.132 and 300.133, that the 
provisions governing parentally-placed private school children with 
disabilities apply to children who are enrolled in private schools 
located in the school district served by the LEA. The new statutory 
requirements in section 612(a)(10)(A)(ii) of the Act should ensure that 
parentally-placed private school children will not be denied the 
opportunity to receive services that would otherwise be available to 
them because of practical obstacles posed when they attend a private 
school located outside their district of residence.
    Proposed regulations in Sec.  300.131(b) through (e) also would 
include new provisions that incorporate the new requirements in section 
612(a)(10)(A)(ii) of the Act, designed to ensure that child find for 
parentally-placed private school children suspected of having 
disabilities is comparable to child find for public school children 
suspected of having disabilities. Proposed Sec.  300.131 would require 
that the participation in child find for parentally-placed private 
school children with disabilities be equitable, the counts be accurate, 
the activities undertaken be similar to child find activities for 
public school children with disabilities, and the period for completion 
of the child find process be comparable to the period for completion 
for public school children with disabilities when a parent consents to 
the evaluation. Similar to the current provision in Sec.  300.453(c), 
and consistent with section 612(a)(10)(A)(ii)(IV) of the Act, proposed 
Sec.  300.131(d) would provide that the costs of carrying out the child 
find requirements for parentally-placed private school children with 
disabilities, including individual evaluations, may not be considered 
in determining whether an LEA has met its obligations under proposed 
Sec.  300.133.
    The proposed regulation would remove current Sec.  300.453(d), 
regarding the permissibility of additional services, as it merely 
provides clarification for which a regulation is not necessary. Nothing 
in the Act prohibits SEAs and LEAs from providing other services to 
parentally-placed private school children with disabilities in addition 
to the services that are required under Part B of the Act.
    Proposed Sec.  300.132(a), regarding the provision of services for 
parentally-placed private school children with disabilities, would 
revise current Sec.  300.452(a) in light of changes in section 
612(a)(10)(A) of the Act, which refers to children ``enrolled in 
private elementary schools and secondary schools in the school district 
served by a local educational agency.'' Therefore, proposed Sec.  
300.132(a) would clarify that the provision of services under the 
proposed regulations refers only to children with disabilities enrolled 
by their parents in private schools located in the school district 
served by the LEA. The proposed regulation also would add a reference 
to the by-pass provisions in proposed Sec. Sec.  300.190 through 
300.198. Proposed Sec.  300.132(b) generally would retain current Sec.  
300.452(b), regarding a services plan for each private school child 
with a disability designated to receive special education and related 
services under Part B. Proposed Sec.  300.132(c) would require each LEA 
to maintain and provide to the SEA records on the number of private 
school children with disabilities evaluated, the number determined to 
be children with disabilities, and the number of private school 
children with disabilities served, consistent with section 
612(a)(10)(A)(i)(V) of the Act.
    Proposed Sec.  300.133, regarding expenditures for providing 
special education and related services to parentally-placed private 
school children with disabilities, would revise current Sec.  
300.453(a), regarding the formula used in determining the proportionate 
amount of expenditures, in light of changes in section 
612(a)(10)(A)(i)(II) of the Act. Proposed Sec.  300.133(a) would 
provide that the calculation of the proportionate amount of funds 
allocated for services for parentally-placed private school children be 
based on the count of parentally-placed private school children 
attending private schools located in the LEA. The proposed regulation 
would establish the formula as the number of children with 
disabilities, ages 3 through 21, who are enrolled by their parents in 
private schools located in the school district served by the LEA, 
divided by the total number of children with disabilities, ages 3 
through 21, in the LEA's jurisdiction. Proposed Sec.  300.133(b) would 
incorporate the provision in section 612(a)(10)(A)(i)(II) of the Act 
regarding a thorough and complete child find process. Proposed Sec.  
300.133(c), regarding child count, generally would retain the current 
provision in Sec.  300.453(b), but for clarity, would use the term 
parentally-placed private school children with disabilities. The 
existing provision in Sec.  300.453(c) would be removed, as similar 
content would be more fully addressed in proposed Sec.  300.131(d). 
Proposed Sec.  300.133(d) would incorporate the statutory provision 
regarding supplementing not supplanting in section 612(a)(10)(A)(i)(IV) 
of the Act.
    Proposed Sec. Sec.  300.134 and 300.135 would incorporate new 
provisions in section 612(a)(10)(A)(iii) and (iv) of the Act, regarding 
timely and meaningful consultation with private school representatives 
and representatives of parents of parentally-placed private school 
children with disabilities, including a discussion of: How parentally-
placed children identified through the child find process can 
meaningfully participate; how, where, and by whom special education and 
related services will be provided; and

[[Page 35789]]

how, if the LEA disagrees with the views of the private school 
officials and the services to be provided, the LEA will provide a 
written explanation of why the LEA chose not to provide services 
directly or through a contract. Proposed Sec.  300.135 would require, 
in accordance with section 612(a)(10)(A)(iv) of the Act, a written 
affirmation signed by the representatives of the participating private 
schools that timely and meaningful consultation has occurred. The 
current provisions in Sec.  300.454(b)(1) through (3), regarding the 
consultation process, would be removed because they were superceded by 
new statutory requirements related to consultation in section 
612(a)(10)(A)(v) of the Act.
    Proposed Sec.  300.136, regarding the right of a private school 
official to submit to the SEA a complaint related to the LEA's 
compliance with the timely and meaningful consultation requirements, 
would incorporate the new provisions in section 612(a)(10)(A)(v) of the 
Act.
    Proposed Sec.  300.137(b) and (c), regarding determination of 
services to parentally-placed private school children with 
disabilities, generally would retain the current provisions in Sec.  
300.454(a), (b)(4), and (c). Proposed Sec.  300.137(a) also would 
include language from current Sec.  300.455(a)(3), providing that a 
parentally-placed private school child with a disability has no 
individual entitlement to receive some or all of the special education 
and related services that the child would receive if enrolled in a 
public school. This is an important clarification of the different 
responsibilities that public schools have for providing special 
education and related services to parentally-placed private school 
children with disabilities. Under the Act, LEAs have an obligation to 
provide the group of parentally-placed private school children with 
disabilities with equitable participation in the services funded with 
Federal IDEA funds. Because Federal funding constitutes only a portion 
of the excess costs of providing special education and related services 
to a child with disabilities, LEAs, in consultation with 
representatives of the private schools, will have to make decisions 
about how best to use the available Federal funds to address the needs 
of the parentally-placed private school children with disabilities as a 
group. In some LEAs, geography, school location, and the needs of the 
parentally-placed private school children with disabilities may make it 
possible for most, or even all of those children to receive some 
services under section 612(a)(10)(A) of the Act. In other cases, the 
Federal funds available may not be sufficient to provide all of these 
children with special education and related services. Decisions about 
how best to use the available Federal funds to ensure equitable 
participation of the group of parentally-placed private school children 
with disabilities are left to LEA personnel, in consultation with the 
private school representatives, who understand what is feasible and 
appropriate in particular situations.
    Proposed Sec.  300.138, regarding equitable services provided to 
parentally-placed private school children with disabilities, would 
retain the current provisions in Sec.  300.455(a)(1) and (2), and (b), 
regarding standards for personnel who provide services to parentally-
placed private school children, different amounts of services that may 
be provided to parentally-placed private school children as compared 
with those provided to children in public schools, and the provision of 
services for each parentally-placed private school child who has been 
designated to receive services in accordance with a services plan. The 
proposed regulation also would include language from section 
612(a)(10)(A)(vi) of the Act, which provides that the special education 
and related services be provided directly by employees of the public 
agency or through contract and that special education and related 
services, including materials and equipment, be secular, neutral and 
nonideological.
    Proposed Sec.  300.139, regarding the location of services and 
transportation, generally would retain the current provisions in Sec.  
300.456 that clarify that LEAs may provide special education and 
related services funded under Part B of the Act on site at the private, 
including religious, schools to the extent consistent with law. It 
should be noted that LEAs should provide such services for parentally-
placed private school children with disabilities on site at their 
school, unless there is a compelling rationale for these services to be 
provided off site.
    Proposed Sec.  300.140, regarding the unavailability of due process 
complaints, except for child find and the availability of State 
complaints, would retain the current provisions in Sec.  300.457. 
Proposed Sec.  300.140(b) would clarify that the State complaint 
procedures would be used to address complaints about the implementation 
of the consultation process in proposed Sec.  300.134. Proposed Sec.  
300.141, regarding the requirement that funds not benefit a private 
school, would retain the current provisions in Sec.  300.459. Proposed 
Sec.  300.142 would combine the requirements of current Sec. Sec.  
300.460 and 300.461 regarding the use of public school personnel and 
private school personnel. Proposed Sec.  300.143, regarding the 
prohibition of separate classes, would retain the requirements in 
current Sec.  300.458.
    Proposed Sec.  300.144 would incorporate provisions in section 
612(a)(10)(A)(vii) of the Act regarding property, equipment, and 
supplies for the benefit of private school children with disabilities 
and would replace the current provisions in Sec.  300.462(a). The 
proposed regulation would retain the current provisions in Sec.  
300.462(b) through (e).

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies

    Proposed Sec. Sec.  300.145, 300.146, and 300.147, regarding 
children with disabilities placed in or referred to private schools by 
public agencies, generally would retain the current provisions in 
Sec. Sec.  300.400, 300.401, and 300.402, which provide that children 
so placed or referred receive special education and related services in 
conformity with an IEP at no cost to the parents. This would be 
consistent with the requirement in section 612(a)(10)(B)(ii) of the 
Act, which provides that the SEA determine whether such private schools 
meet the standards that apply to the SEA and LEAs and that children 
served have all the rights the children would have if served by these 
agencies. Proposed Sec.  300.146(b) would continue to provide that 
publicly-placed children with disabilities be provided an education 
that meets the standards that apply to education provided by the SEA 
and LEAs, including the requirements of part 300, except for the 
requirements of Sec. Sec.  300.18 and 300.156(c). This provision is 
intended to ensure that children with disabilities who are publicly-
placed in or referred to a private school or facility as a means of 
providing these children with special education and related services 
would continue to retain the same right to FAPE that they would have if 
served directly by a public agency. However, because of statutory 
language in the ESEA that the requirements regarding highly qualified 
teachers apply only to public school teachers, as well as related 
language in section 602(10) of the Act and proposed Sec.  300.18, we do 
not read proposed Sec.  300.146(b) as requiring teachers of children 
with disabilities who are placed in or referred to private schools by a 
public agency to meet either the

[[Page 35790]]

``highly qualified teacher'' standard in the ESEA or the ``highly 
qualified special education teacher'' standard in the Act. Proposed 
Sec.  300.147, regarding implementation by the SEA, would incorporate, 
without change, the provisions in current Sec.  300.402.

Children With Disabilities Enrolled by Their Parents in Private Schools 
When FAPE Is at Issue

    Proposed Sec.  300.148, relating to placement of children with 
disabilities in private schools when the provision of FAPE is at issue, 
generally would retain the current provisions in Sec.  300.403(a), (c), 
and (d). Proposed Sec.  300.148 would remove, as unnecessary, language 
currently in Sec.  300.403(b), which provides that disagreements 
regarding the availability of an appropriate program for the child and 
the question of financial responsibility are subject to due process 
procedures. Disputes about these matters would be subject to the due 
process procedures even without this provision, because the central 
issue in such disputes is whether the public agency has made FAPE 
available to the child. Consistent with statutory language, proposed 
Sec.  300.148(b) would include the term ``school'' after 
``elementary.'' Proposed Sec.  300.148(d) would modify current Sec.  
300.403(e), based on the specific provisions in section 
612(a)(10)(C)(IV) of the Act.
    The current provision on documentation of SEA responsibility for 
general supervision in Sec.  300.141(a) and (b) would be removed 
consistent with statutory changes regarding documentation. Proposed 
Sec.  300.149, regarding SEA responsibility for general supervision, 
would replace current Sec.  300.600(a) and incorporate language in 
section 612(a)(11) of the Act to include a new provision referencing 
the requirements of subtitle B of title VII of the McKinney-Vento 
Homeless Assistance Act, 42 U.S.C. 11431. We also are adding a phrase 
to Sec.  300.149(a)(2) to clarify that the SEA is not responsible for 
exercising general supervision for education programs for children with 
disabilities in elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior. Current 
Sec.  300.600(b) also would be removed as a result of statutory changes 
regarding submission of State information.
    New language referencing the State monitoring and enforcement 
responsibilities in proposed Sec. Sec.  300.602 and 300.606 through 
300.608 would be added in Sec.  300.149(b) because State monitoring and 
enforcement are central to the SEA's exercise of general supervision. 
Proposed Sec.  300.149(c) and (d) respectively, would incorporate 
current Sec.  300.600(c), clarifying that Part B does not limit the 
responsibility of agencies other than educational agencies to provide 
or pay for some or all of the cost of FAPE and Sec.  300.600(d), 
regarding the ability of a Governor or other individual to assign to a 
public agency, other than the SEA, responsibility for ensuring that the 
requirements of Part B are met for students with disabilities convicted 
as adults and incarcerated in adult prisons. As a general matter, for 
educational purposes, students who had been enrolled in a BIA funded 
school and are subsequently convicted as an adult and incarcerated in 
an adult prison are the responsibility of the State where the adult 
prison is located. The Secretary is seeking comment on whether further 
clarification on this issue is warranted.
    Proposed Sec.  300.150 would incorporate language from current 
Sec.  300.143 regarding SEA implementati