Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 46540-46845 [06-6656]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 71, Number 156 (Monday, August 14, 2006)]
[Rules and Regulations]
[Pages 46540-46845]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6656]



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Part II





Department of Education





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34 CFR Parts 300 and 301



Assistance to States for the Education of Children With Disabilities 
and Preschool Grants for Children With Disabilities; Final Rule

Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules 
and Regulations

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DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 301

RIN 1820-AB57


Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities

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

ACTION: Final regulations.

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SUMMARY: The Secretary issues final regulations governing the 
Assistance to States for Education of Children with Disabilities 
Program and the Preschool Grants for Children with Disabilities 
Program. These regulations are needed to implement changes made to the 
Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004 (Act or 
IDEA).

DATES: These regulations take effect on October 13, 2006.

FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of 
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC 
20202-2641. Telephone: (202) 245-7459, ext. 3.
    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 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement changes in the 
regulations governing the Assistance to States for Education of 
Children with Disabilities Program and the Preschool Grants for 
Children with Disabilities Program necessitated by the reauthorization 
of the IDEA. With the issuance of these final regulations, part 301 has 
been removed and the regulations implementing the Preschool Grants for 
Children with Disabilities Program are included under subpart H of 
these final regulations.
    On June 21, 2005, the Secretary published a notice of proposed 
rulemaking in the Federal Register (70 FR 35782) (NPRM) to amend the 
regulations governing the Assistance to States for Education of 
Children with Disabilities Program, the Preschool Grants for Children 
with Disabilities Program, and Service Obligations under Special 
Education Personnel Development to Improve Services and Results for 
Children with Disabilities. In the preamble to the NPRM, the Secretary 
discussed, on pages 35783 through 35819, the changes proposed to the 
regulations for these programs; specifically, the amendments to 34 CFR 
part 300, the removal of 34 CFR part 301 and relocation of those 
provisions to subpart H of 34 CFR part 300, and the amendments to 34 
CFR part 304.
    Final regulations for 34 CFR Part 304--Special Education-Personnel 
Development to Improve Services and Results for Children with 
Disabilities were published in the Federal Register (71 FR 32396) on 
June 5, 2006, and became effective July 5, 2006.

Major Changes in the Regulations

    The following is a summary of the major substantive changes in 
these final regulations from the regulations proposed in the NPRM (the 
rationale for each of these changes is discussed in the Analysis of 
Comments and Changes section of this preamble):

Subpart A--General

Definitions

     The definition of child with a disability in Sec.  300.8 
has been revised as follows:
    (1) Section 300.8(b) (Children aged three through nine experiencing 
developmental delays) has been changed to clarify that the use of the 
term ``developmental delay'' is subject to the conditions described in 
Sec.  300.111(b).
    (2) The definition of other health impairment in Sec.  
300.8(c)(9)(i) has been changed to add ``Tourette Syndrome'' to the 
list of chronic or acute health problems.
     The definition of excess costs in Sec.  300.16 has been 
revised to clarify that the computation of excess costs may not include 
capital outlay and debt service. In addition, a new ``Appendix A to 
Part 300--Excess Cost Calculation'' has been added to provide a 
description (and an example) of how to calculate excess costs under the 
Act and these regulations.
     The definition of highly qualified special education 
teacher in Sec.  300.18 has been revised, as follows:
    (1) Section 300.18(b), regarding requirements for highly qualified 
special education teachers in general, has been modified to clarify 
that, when used with respect to any special education teacher teaching 
in a charter school, highly qualified means that the teacher meets the 
certification or licensing requirements, if any, set forth in the 
State's public charter school law.
    (2) A new Sec.  300.18(e), regarding separate ``high objective 
uniform State standards of evaluation'' (HOUSSE), has been added to 
provide that a State may develop a separate HOUSSE for special 
education teachers, provided that any adaptations of the State's HOUSSE 
would not establish a lower standard for the content knowledge 
requirements for special education teachers and meets all the 
requirements for a HOUSSE for regular education teachers. This 
provision also clarifies that a State may develop a separate HOUSSE for 
special education teachers, which may include single HOUSSE evaluations 
that cover multiple subjects.
    (3) Section 300.18(g) (proposed Sec.  300.18(f)) (``Applicability 
of definition to ESEA requirements; and clarification of new special 
education teacher'') has been revised as follows: (1) The heading has 
been revised, and (2) the language changed to clarify when a special 
education teacher is considered ``new'' for some purposes.
    (4) Section 300.18(h) (proposed Sec.  300.18(g)) has been modified 
to clarify that the highly qualified special education teacher 
requirements also do not apply to private school teachers hired or 
contracted by LEAs to provide equitable services to parentally-placed 
private school children with disabilities under Sec.  300.138.
     The definition of Indian and Indian tribe in Sec.  300.21 
has been changed to clarify that nothing in the definition is intended 
to indicate that the Secretary of the Interior is required to provide 
services or funding to a State Indian tribe that is not listed in the 
Federal Register list of Indian entities recognized as eligible to 
receive services from the United States, published pursuant to Section 
104 of the Federally Recognized Indian Tribe List Act of 1994, 25 
U.S.C. 479a-1.
     The definition of parent in Sec.  300.30 has been revised 
to substitute ``biological'' for ``natural'' each time it appears in 
the definition, and to add language clarifying that to be considered a 
parent under this definition a ``guardian'' must be a person generally 
authorized to act as the child's parent, or authorized to make 
educational decisions for the child.
     The definition of related services in Sec.  300.34 has 
been revised as follows:
    (1) Section 300.34(a) (General) has been modified to (A) add the 
statutory term ``early identification and assessment of disabilities in 
children,'' which was inadvertently omitted from the NPRM, (B) combine 
``school health services'' and ``school nurse services,'' and (C) 
remove the clause relating to a free appropriate public education under

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``school nurse services'' because it duplicates the clause in Sec.  
300.34(c)(13).
    (2) Section 300.34(b) has been changed to (A) expand the title to 
read ``Exception; services that apply to children with surgically 
implanted devices, including cochlear implants,'' and (B) clarify, in 
new paragraph (b)(1), that related services do not include a medical 
device that is surgically implanted, the optimization of that device's 
functioning (e.g., mapping), maintenance of that device, or the 
replacement of that device.
    (3) A new Sec.  300.34(b)(2) has been added to make clear that 
nothing in paragraph (b)(1) of Sec.  300.34 (A) limits the right of a 
child with a surgically implanted device (e.g., a cochlear implant) to 
receive related services, as listed in Sec.  300.34(a), that are 
determined by the IEP Team to be necessary for the child to receive 
FAPE; (B) limits the responsibility of a public agency to appropriately 
monitor and maintain medical devices that are needed to maintain the 
health and safety of the child, including breathing, nutrition, or 
operation of other bodily functions, while the child is transported to 
and from school or is at school; or (C) prevents the routine checking 
of an external component of a surgically-implanted device to make sure 
it is functioning properly, as required in Sec.  300.113(b).
    (4) The definition of interpreting services in Sec.  300.34(c)(4) 
has been changed to clarify that the term includes (A) transcription 
services, such as communication access real-time translation (CART), C-
Print, and TypeWell for children who are deaf or hard of hearing, and 
(B) special interpreting services for children who are deaf-blind.
    (5) The definition of orientation and mobility services in Sec.  
300.34(c)(7) has been changed to remove the term ``travel training 
instruction.'' The term is under the definition of special education, 
and is defined in Sec.  300.39(b)(4).
    (6) The definition of school nurse services in 300.34(c)(13) has 
been expanded and re-named school health services and school nurse 
services. The expanded definition clarifies that ``school nurse 
services'' are provided by a qualified school nurse, and ``school 
health services'' may be provided by a qualified school nurse or other 
qualified person.
     A definition of scientifically based research has been 
added in new Sec.  300.35 that incorporates by reference the definition 
of that term from the Elementary and Secondary Education Act of 1965, 
as amended, 20 U.S.C. 6301 et seq. (ESEA).
    With the addition of the new definition in Sec.  300.35, the 
definitions in subpart A, beginning with the definition of secondary 
school, have been renumbered.
     The definition of special education in Sec.  300.39 
(proposed Sec.  300.38) has been revised to remove the definition of 
vocational and technical education that was included in proposed Sec.  
300.38(b)(6).
     The definition of supplementary aids and services in Sec.  
300.42 (proposed Sec.  300.41) has been modified to specify that aids, 
services, and other supports are also provided to enable children with 
disabilities to participate in extracurricular and nonacademic 
settings.

Subpart B--State Eligibility

FAPE Requirements

     Section 300.101(c) has been revised to clarify that a free 
appropriate public education (FAPE) must be available to any individual 
child with a disability who needs special education and related 
services, even though the child has not failed or been retained in a 
course, and is advancing from grade to grade.
     Section 300.102(a)(3), regarding exceptions to FAPE, has 
been changed to clarify that a regular high school diploma does not 
include an alternative degree that is not fully aligned with the 
State's academic standards, such as a certificate or a general 
educational development credential (GED).
     Section 300.105, regarding assistive technology and proper 
functioning of hearing aids, has been re-titled ``Assistive 
technology,'' and proposed paragraph (b), regarding the proper 
functioning of hearing aids, has been moved to new Sec.  300.113(a).
     Section 300.107(a), regarding nonacademic services, has 
been revised to specify the steps each public agency must take, 
including the provision of supplementary aids and services determined 
appropriate and necessary by the child's IEP Team, to provide 
nonacademic and extracurricular services and activities in the manner 
necessary to afford children with disabilities an equal opportunity for 
participation in those services and activities.
     Proposed Sec.  300.108(a), regarding physical education 
services, has been revised to specify that physical education must be 
made available to all children with disabilities receiving FAPE, unless 
the public agency enrolls children without disabilities and does not 
provide physical education to children without disabilities in the same 
grades.
     A new Sec.  300.113, regarding routine checking of hearing 
aids and external components of surgically implanted medical devices, 
has been added, as follows:
    (1) Paragraph (a) of Sec.  300.113 requires each public agency to 
ensure that hearing aids worn in school by children with hearing 
impairments, including deafness, are functioning properly.
    (2) A new Sec.  300.113(b)(1) requires each public agency to ensure 
that the external components of surgically implanted medical devices 
are functioning properly. However, new Sec.  300.113(b)(2) has been 
added to make it clear that, for a child with a surgically implanted 
medical device who is receiving special education and related services, 
a public agency is not responsible for the post-surgical maintenance, 
programming, or replacement of the medical device that has been 
surgically implanted (or of an external component of the surgically 
implanted medical device).

Least Restrictive Environment

     Section 300.116(b)(3) and (c) regarding placements, has 
been revised to remove the qualification ``unless the parent agrees 
otherwise'' from the requirements that (1) the child's placement be as 
close as possible to the child's home, and (2) the child is educated in 
the school he or she would attend if not disabled.
     Section 300.117 (Nonacademic settings) has been changed to 
clarify that each public agency must ensure that each child with a 
disability has the supplementary aids and services determined by the 
child's individualized education program (IEP) Team to be appropriate 
and necessary for the child to participate with nondisabled children in 
the extracurricular services and activities to the maximum extent 
appropriate to the needs of that child.

Children With Disabilities Enrolled by Their Parents in Private Schools

     Section 300.130 (definition of parentally-placed private 
school children with disabilities) has been revised to clarify that the 
term means children with disabilities enrolled by their parents in 
private, including religious, schools or facilities, that meet the 
definition of elementary school in Sec.  300.13 or secondary school in 
Sec.  300.36.
     A new Sec.  300.131(f), regarding child find for out-of-
State parentally-placed private school children with disabilities, has 
been added to clarify that each LEA

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in which private (including religious) elementary schools and secondary 
schools are located must include parentally-placed private school 
children who reside in a State other than the State in which the 
private schools that they attend are located.
     Section 300.133, regarding expenditures for parentally-
placed private school children with disabilities, has been revised, as 
follows:
    (1) A new Sec.  300.133(a)(2)(ii), has been added to clarify that 
children aged three through five are considered to be parentally-placed 
private school children with disabilities enrolled by their parents in 
private, including religious, elementary schools, if they are enrolled 
in a private school that meets the definition of elementary school in 
Sec.  300.13.
    (2) A new Sec.  300.133(a)(3) has been added to specify that, if an 
LEA has not expended for equitable services for parentally-placed 
private school children with disabilities all of the applicable funds 
described in Sec.  300.133(a)(1) and (a)(2) by the end of the fiscal 
year for which Congress appropriated the funds, the LEA must obligate 
the remaining funds for special education and related services 
(including direct services) to parentally-placed private school 
children with disabilities during a carry-over period of one additional 
year.
     Section 300.136, regarding compliance related to 
parentally-placed private school children with disabilities, has been 
revised to remove the requirement that private school officials must 
submit complaints to the SEA using the procedures in Sec. Sec.  300.151 
through 300.153.
     Section 300.138(a), regarding the requirement that 
services to parentally-placed private school children with disabilities 
must be provided by personnel meeting the same standards as personnel 
providing services in the public schools, has been modified to clarify 
that private elementary school and secondary school teachers who are 
providing equitable services to parentally-placed private school 
children with disabilities do not have to meet the highly qualified 
special education teacher requirements in Sec.  300.18.
     Section 300.140, regarding due process complaints and 
State complaints, has been revised to make the following changes:
    (1) Section 300.140(b)(1) (proposed Sec.  300.140(a)(2)), regarding 
child find complaints, has been changed to clarify that the procedures 
in Sec. Sec.  300.504 through 300.519 apply to complaints that an LEA 
has failed to meet the child find requirements in Sec.  300.131, 
including the requirements in Sec. Sec.  300.301 through 300.311.
    (2) A new paragraph (b)(2) has been added to provide that any due 
process complaint regarding the child find requirements (as described 
in Sec.  300.140(b)(1)) must be filed with the LEA in which the private 
school is located and a copy of the complaint must be forwarded to the 
SEA.
    (3) A new Sec.  300.140(c), regarding State complaints by private 
school officials, has been added to clarify that (A) any complaint that 
an SEA or LEA has failed to meet the requirements in Sec. Sec.  300.132 
through 300.135 and 300.137 through 300.144 must be filed in accordance 
with the procedures described in Sec. Sec.  300.151 through 300.153, 
and (B) a complaint filed by a private school official under Sec.  
300.136(a) must be filed with the SEA in accordance with the procedures 
in Sec.  300.136(b).

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

Section 300.148 Placement of Children by Parents if FAPE Is at Issue
     A new Sec.  300.148(b), regarding disagreements about 
FAPE, has been added (from current Sec.  300.403(b)) to clarify that 
disagreements between a parent and a public agency regarding the 
availability of a program appropriate for a child with a disability, 
and the question of financial reimbursement, are subject to the due 
process procedures in Sec. Sec.  300.504 through 300.520.

State Complaint Procedures

     Section 300.152(a)(3)(ii) (proposed paragraph (a)(3)(B)) 
has been revised to clarify that each SEA's complaint procedures must 
provide the public agency with an opportunity to respond to a complaint 
filed under Sec.  300.153, including, at a minimum, an opportunity for 
a parent who has filed a complaint and the public agency to voluntarily 
engage in mediation consistent with Sec.  300.506.
     Section 300.152(b)(1)(ii), regarding time extensions for 
filing a State complaint, has been revised to clarify that it would be 
permissible to extend the 60-day timeline if the parent (or individual 
or organization if mediation or other alternative means of dispute 
resolution is available to the individual or organization under State 
procedures) and the public agency agree to engage in mediation or to 
engage in other alternative means of dispute resolution, if available 
in the State.
     Section 300.152(c), regarding complaints filed under Sec.  
300.152 and due process hearings under Sec.  300.507 and Sec. Sec.  
300.530 through 300.532, has been revised to clarify that if a written 
complaint is received that is also the subject of a due process hearing 
under Sec. Sec.  300.507 or 300.530 through 300.532, or contains 
multiple issues of which one or more are part of a due process hearing, 
the State must set aside any part of the complaint that is being 
addressed in the due process hearing until the conclusion of the 
hearing. However, any issue in the complaint that is not part of the 
due process hearing must be resolved using the time limit and 
procedures described elsewhere in the State complaint procedures. A new 
paragraph (c)(3) also has been added to require SEAs to resolve 
complaints alleging a public agency's failure to implement a due 
process hearing. This is the same requirement in current Sec.  
300.661(c)(3).
     Section 300.153(c), regarding the one year time limit from 
the date the alleged violation occurred and the date the complaint is 
received in accordance with Sec.  300.151, has been revised by removing 
the exception clause related to complaints covered under Sec.  
300.507(a)(2).

Methods of Ensuring Services

     Section 300.154(d), regarding children with disabilities 
who are covered by public benefits or insurance, has been revised to 
clarify that the public agency must (1) obtain parental consent each 
time that access to the parent's public benefits or insurance is 
sought, and (2) notify parents that refusal to allow access to their 
public benefits or insurance does not relieve the public agency of its 
responsibility to ensure that all required services are provided at no 
cost to the parents.

Additional Eligibility Requirements

     Section 300.156(e), regarding personnel qualifications, 
has been revised (1) to add ``or a class of students,'' to clarify that 
a judicial action on behalf of a class of students may not be filed for 
failure of a particular SEA or LEA employee to be highly qualified, and 
(2) to substitute the word ``employee'' for ``staff person,'' to be 
more precise in the rule of construction in new Sec.  300.18(f) 
(proposed Sec.  300.18(e)).
     Section 300.160 (participation in assessments) has been 
removed, and the section has been designated as ``Reserved.'' 
Participation in assessments is the subject of a new notice of proposed 
rulemaking issued on December 15, 2005 (70 FR 74624) to amend the 
regulations governing programs under Title I of the ESEA and

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Part B of the IDEA regarding additional flexibility for States to 
measure the achievement of children with disabilities based on modified 
achievement standards.

Other Provisions Required for State Eligibility

     Section 300.172, regarding access to instructional 
materials, has been revised: (1) To make clear that States must adopt 
the National Instructional Materials Accessibility Standard (NIMAS), 
published as Appendix C to these final regulations; (2) to establish a 
definition of ``timely manner,'' for purposes of Sec.  300.172(b)(2) 
and (b)(3) if the State is not coordinating with the National 
Instructional Materials Access Center (NIMAC), or Sec.  300.172(b)(3) 
and (c)(2) if the State is coordinating with the NIMAC; (3) to add a 
new Sec.  300.172(b)(4) to require SEAs to ensure that all public 
agencies take all reasonable steps to provide instructional materials 
in accessible formats to children with disabilities who need those 
instructional materials at the same time as other children receive 
instructional materials; and (4) to add a new Sec.  300.172(e)(2) to 
clarify, that all definitions in Sec.  300.172(e)(1) apply to each 
State and LEA, whether or not the State or LEA chooses to coordinate 
with the NIMAC.
     A new Sec.  300.177 has been added to include a provision 
regarding ``States' sovereign immunity.'' That provision, which has 
been added to incorporate the language in section 604 of the Act, makes 
clear that a State that accepts funds under Part B of the Act waives 
its immunity under the 11th amendment of the Constitution of the United 
States from suit in Federal court for a violation of Part B of the Act.

Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Parental Consent

     Section 300.300, regarding parental consent, has been 
revised, as follows:
    (1) Paragraph (a) of Sec.  300.300, regarding consent for initial 
evaluation, has been changed to provide that the public agency 
proposing to conduct an initial evaluation to determine if a child 
qualifies as a child with a disability must, after providing notice 
consistent with Sec. Sec.  300.503 and 300.504, obtain informed 
consent, consistent with Sec.  300.9, from the parent of the child 
before conducting the evaluation. A new paragraph (a)(1)(iii) has been 
added to require a public agency to make reasonable efforts to obtain 
the informed consent from the parent for an initial evaluation.
    (2) Section 300.300(a)(3), regarding a parent's failure to provide 
consent for initial evaluation, has been changed to clarify, in a new 
paragraph (a)(3)(ii), that the public agency does not violate its 
obligation under Sec.  300.111 and Sec. Sec.  300.301 through 300.311 
if it declines to pursue the evaluation.
    (3) Section 300.300(b), regarding parental consent for services, 
has been modified by a new paragraph (b)(2) that requires a public 
agency to make reasonable efforts to obtain informed consent from the 
parent for the initial provision of special education and related 
services.
    (4) Section 300.300(c)(1), regarding parental consent for 
reevaluations, has been modified to clarify that if a parent refuses to 
consent to a reevaluation, the public agency may, but is not required 
to, pursue the reevaluation by using the consent override procedures in 
Sec.  300.300(a)(3), and the public agency does not violate its 
obligation under Sec.  300.111 and Sec. Sec.  300.301 through 300.311 
if it declines to pursue the evaluation or reevaluation.
    (5) A new Sec.  300.300(d)(4) has been added to provide that if a 
parent of a child who is home schooled or placed in a private school by 
the parent at the parent's expense, does not provide consent for an 
initial evaluation or a reevaluation, or the parent fails to respond to 
a request to provide consent, the public agency (A) may not use the 
consent override procedures (described elsewhere in Sec.  300.300), and 
(B) is not required to consider the child eligible for services under 
the requirements relating to parentally-placed private school children 
with disabilities (Sec. Sec.  300.132 through 300.144).
    (6) A new Sec.  300.300(d)(5) has been added to clarify that in 
order for a public agency to meet the reasonable efforts requirement to 
obtain informed parental consent for an initial evaluation, initial 
services, or a reevaluation, a public agency must document its attempts 
to obtain parental consent using the procedures in Sec.  300.322(d).

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities (SLD)

     Section 300.307 (Specific learning disabilities) has been 
revised, as follows:
    (1) Proposed paragraph (a)(1) of Sec.  300.307, which allowed a 
State to prohibit the use of a severe discrepancy between intellectual 
ability and achievement for determining if a child has an SLD, has been 
removed, and proposed paragraph (a)(2) of Sec.  300.307 has been 
redesignated as paragraph (a)(1).
    (2) Section 300.307(a)(2) (proposed paragraph (a)(3)) has been 
changed to clarify that the criteria adopted by the State must permit 
the use of a process based on the child's response to scientific, 
research-based intervention.
     Section 300.308 (Group members) has been changed to 
require the eligibility group for children suspected of having SLD to 
include the child's parents and a team of qualified professionals, 
which must include the child's regular teacher (or if the child does 
not have a regular teacher, a regular classroom teacher qualified to 
teach a child of his or her age) or for a child of less than school 
age, an individual qualified by the SEA to teach a child of his or her 
age; and at least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher. These are the same 
requirements in current Sec.  300.540.
     Section 300.309 (Determining the existence of a specific 
learning disability) has been revised, as follows:
    (1) Paragraph (a) of Sec.  300.309 has been changed (A) to clarify 
that the group described in 300.306 may determine that a child has a 
specific learning disability if the child does not achieve adequately 
for the child's age or to meet State-approved grade-level standards in 
one or more of eight areas (e.g., oral expression, basic reading skill, 
etc.), when provided with learning experiences and instruction 
appropriate for the child's age or State-approved grade-level 
standards; and (B) to add ``limited English proficiency'' to the other 
five conditions that could account for the child's learning problems, 
and that the group considers in determining whether the child has an 
SLD.
    (2) Section 300.309(b) has been changed to clarify (A) that, in 
order to ensure that underachievement in a child suspected of having an 
SLD is not due to lack of appropriate instruction in reading or math, 
the group must consider, as part of the evaluation described in 
Sec. Sec.  300.304 through 300.306, data that demonstrate that prior 
to, or as a part of, the referral process, the child was provided 
appropriate instruction in regular education settings, delivered by 
qualified personnel, and (B) to replace (in paragraph (b)(1)) the term 
``high quality research-based instruction'' with ``appropriate 
instruction.''
    (3) Section 300.309(c) has been changed to provide that the public 
agency must promptly request parental

[[Page 46544]]

consent to evaluate a child suspected of having an SLD who has not made 
adequate progress after an appropriate period of time when provided 
appropriate instruction, and whenever a child is referred for an 
evaluation.
     Section 300.310, regarding Observation, has been revised, 
as follows:
    (1) Paragraph (a) of proposed Sec.  300.310 has been revised (A) to 
remove the phrase ``trained in observation, and (B) to specify that the 
public agency must ensure that the child is observed in the child's 
learning environment.
    (2) A new Sec.  300.310(b) has been added to require the 
eligibility group to decide to (A) use information obtained from an 
observation in routine classroom instruction and monitoring of the 
child's performance that was done before the child was referred for an 
evaluation, or (B) have at least one member of the group described in 
Sec.  300.306(a)(1) conduct an observation of the child's academic 
performance in the regular classroom after the child has been referred 
for an evaluation and parental consent is obtained.
    Paragraph (b) of proposed Sec.  300.310 has been redesignated as 
new Sec.  300.310(c).
     Section 300.311 (Written report) has been renamed 
``Specific documentation for the eligibility determination,'' and has 
been revised, as follows:
    (1) Section 300.311(a)(5), regarding whether the child does not 
achieve commensurate with the child's age, has been modified and 
expanded to add whether the child does not achieve adequately for the 
child's age or to meet State-approved grade-level standards consistent 
with Sec.  300.309(a)(1), and (A) the child does not make sufficient 
progress to meet age or to meet State-approved grade-level standards 
consistent with Sec.  300.309(a)(2)(i), or (B) the child exhibits a 
pattern of strengths and weaknesses in performance, achievement, or 
both, relative to age, State-approved grade level standards or 
intellectual development consistent with Sec.  300.309(a)(2)(ii).
    (2) Proposed Sec.  300.311(a)(6), regarding whether there are 
strengths or weaknesses or both in performance or achievement or both 
relative to intellectual development, has been removed.
    (3) A new Sec.  300.311(a)(6) has been added to clarify that the 
documentation must include a statement of the determination of the 
group concerning the effects of visual, hearing, or motor disability, 
mental retardation, emotional disturbance, cultural factors, 
environmental or economic disadvantage, or limited English proficiency 
on the child's achievement level.
    (4) A new Sec.  300.311(a)(7) has been added to provide that if the 
child has participated in a process that assesses the child's response 
to scientific, research-based intervention, the documentation must 
include the instructional strategies used and the student-centered data 
collected, and documentation that the child's parents were notified 
about (A) the State's policies regarding the amount and nature of 
student performance data that would be collected and the general 
education services that would be provided, (B) strategies for 
increasing the child's rate of learning, and (C) the parents' right to 
request an evaluation.

Individualized Education Programs

     Section 300.320 (Definition of IEP) has been revised in 
paragraph (a)(5) to replace ``regular education environment'' with 
``regular class,'' in order to be consistent with the language in the 
Act.
     Section 300.321(e), regarding attendance at IEP Team 
meetings, has been revised to clarify that the excusal of IEP Team 
members from attending an IEP Team meeting under certain circumstances, 
refers to the IEP Team members in Sec.  300.320(a)(2) through (a)(5).
     Section 300.322, regarding parent participation, has been 
revised to: (1) Include, in Sec.  300.322(d), examples of the records a 
public agency must keep of its attempts to involve the parents in IEP 
meetings; (2) add a new Sec.  300.322(e), which requires the public 
agency to take whatever action is necessary to ensure that the parent 
understands the proceedings of the IEP meeting, including arranging for 
an interpreter for parents with deafness or whose native language is 
other than English; and (3) redesignate paragraph (e) as paragraph (f) 
accordingly.
     Section 300.323(d) has been revised to require public 
agencies to ensure that each regular teacher, special education 
teacher, related services provider, and any other service provider who 
is responsible for the implementation of a child's IEP, is informed of 
his or her specific responsibilities related to implementing the 
child's IEP and the specific accommodations, modifications, and 
supports that must be provided for the child in accordance with the 
child's IEP. These are the same requirements in current Sec.  
300.342(b)(3)(i) and (b)(3)(ii).
     Section 300.323(e), regarding IEPs for children who 
transfer public agencies, has been revised to: (1) Divide the provision 
into three separate paragraphs (Sec.  300.323(e), (f), and (g)) for 
purposes of clarity and improved readability (e.g., transfers within 
the same State, transfers from another State, and transmittal of 
records); (2) adopt ``school year'' in lieu of ``academic year'' as the 
term commonly used by parents and public agencies; and (3) adopt other 
modifiers (e.g., ``new'' and ``previous'') to distinguish between 
States and public agencies that are involved in transfers by children 
with disabilities.
     Section 300.324(a)(4), regarding changes to an IEP after 
the annual IEP meeting for a school year, has been restructured into 
two paragraphs, and a new paragraph (a)(4)(ii) has been added to 
require the public agency to ensure that, if changes are made to a 
child's IEP without an IEP meeting, that the child's IEP Team is 
informed of the changes.
     Section 300.324(b), regarding the review and revision of 
IEPs, has been changed to include a new paragraph (b)(2), to clarify 
that, in conducting a review of a child's IEP, the IEP Team must 
consider the same special factors it considered when developing the 
child's IEP.

Subpart E--Procedural Safeguards

     Section 300.502, regarding independent educational 
evaluations, has been revised, as follows:
    (1) A new Sec.  300.502(b)(5) has been added to make clear that a 
parent is entitled to only one independent educational evaluation at 
public expense each time the public agency conducts an evaluation with 
which the parent disagrees.
    (2) Section 300.502(c) has been changed to clarify that if a parent 
obtains an independent evaluation at public expense or shares with the 
public agency an evaluation obtained at private expense, the public 
agency must consider the evaluation, if it meets agency criteria, in 
any decision made with respect to the provision of FAPE to the child.
     Section 300.504 (Procedural safeguards notice) has been 
revised, as follows:
    (1) Paragraph (a)(2) of Sec.  300.504 has been changed to add that 
a copy of the procedural safeguards notice must be given upon receipt 
of the first due process complaint under Sec.  300.507 in a school 
year, as well as upon receipt of the first State complaint under Sec.  
300.151 through 300.153.
    (2) A new Sec.  300.504(a)(3) has been added to provide that the 
notice must be given to the parents of a child with a disability in 
accordance with the discipline procedures in Sec.  300.530(h).

[[Page 46545]]

     Section 300.506(b), regarding the requirements for 
mediation, has been revised by (1) removing the provision about the 
``confidentiality pledge,'' in proposed paragraph (b)(9), because it is 
no longer required under the Act, and (2) changing paragraph (b)(8), 
regarding the prohibition against using discussions that occur in the 
mediation process, to clarify that ``civil proceedings'' includes any 
Federal court or State court of a State receiving assistance under this 
part.
     Section 300.509, regarding model forms to assist parents 
and public agencies in filing due process complaints and parents and 
other parties in filing State complaints, has been revised to add, with 
respect to due process complaints, ``public agencies,'' and with 
respect to State complaints, ``other parties,'' as well as parents, and 
to clarify that (1) while each SEA must develop model forms, the SEA or 
LEA may not require the use of the forms, and (2) parents, public 
agencies, and other parties may either use the appropriate model form, 
or another form or other document, so long as the form or document 
meets, as appropriate, the requirements for filing a due process 
complaint or a State complaint.
     Section 300.510 (Resolution process) has been revised, as 
follows:
    (1) Section 300.510(b)(1), regarding the resolution period, has 
been changed to state that a due process hearing ``may occur'' (in lieu 
of ``must occur'') by the end of the resolution period, if the parties 
have not resolved the dispute that formed the basis for the due process 
complaint.
    (2) A new Sec.  300.510(b)(3) has been added to provide that, 
except where the parties have jointly agreed to waive the resolution 
process or to use mediation (notwithstanding Sec.  300.510(b)(1) and 
(2)), the failure of a parent filing a due process complaint to 
participate in the resolution meeting will delay the timelines for the 
resolution process and due process hearing until the meeting is held.
    (3) A new Sec.  300.510(b)(4) has been added to provide that if an 
LEA is unable to obtain the participation of the parent in the 
resolution meeting after reasonable efforts have been made, and 
documented using the procedures in Sec.  300.322(d), the LEA may, at 
the conclusion of the 30-day resolution period, request that a hearing 
officer dismiss the parent's due process complaint.
    (4) A new paragraph (b)(5) of Sec.  300.510 has been added to 
provide that, if the LEA fails to hold the resolution meeting within 15 
days of receiving notice of a parent's due process complaint or fails 
to participate in the resolution meeting, the parent may seek the 
intervention of a hearing officer to begin the due process hearing 
timelines.
    (5) A new Sec.  300.510(c) (Adjustments to the 30-day resolution 
period) has been added that specifies exceptions to the 30-day 
resolution period (e.g., (A) both parties agree in writing to waive the 
resolution meeting; (B) after either the mediation or resolution 
meeting starts but before the end of the 30-day period, the parties 
agree in writing that no agreement is possible; or (C) if both parties 
agree in writing to continue the mediation at the end of the 30-day 
resolution period, but later, the parent or public agency withdraws 
from the mediation process). Subsequent paragraphs have been renumbered 
accordingly.
    (6) Paragraph (d)(2) of Sec.  300.510 (proposed paragraph(c)(2)), 
regarding the enforceability of a written settlement agreement in any 
State court of competent jurisdiction or in a district court of the 
United States, has been expanded to add the SEA, if the State has other 
mechanisms or procedures that permit parties to seek enforcement of 
resolution agreements, pursuant to a new Sec.  300.537.
     Section 300.513(a) (Decision of hearing officer) has been 
revised by (1) changing the paragraph title to read ``Decision of 
hearing officer on the provision of FAPE,'' and (2) clarifying that a 
hearing officer's determination of whether a child received FAPE must 
be based on substantive grounds.
     Section 300.515(a), regarding timelines and convenience of 
hearings and reviews, has been revised to include a specific reference 
to the adjusted time periods described in Sec.  300.510(c).
     Section 300.516(b), regarding the 90-day time limitation 
from the date of the decision of the hearing to file a civil action, 
has been revised to provide that the 90-day period begins from the date 
of the decision of the hearing officer or the decision of the State 
review official.
     Section 300.518 (Child's status during proceedings) has 
been revised by adding a new paragraph (c), which provides that if a 
complaint involves an application for initial services under this part 
from a child who is transitioning from Part C of the Act to Part B and 
is no longer eligible for Part C services because the child has turned 
3, the public agency is not required to provide the Part C services 
that the child had been receiving. If the child is found eligible for 
special education and related services under Part B and the parent 
consents to the initial provision of special education and related 
services under Sec.  300.300(b), then the public agency must provide 
those special education and related services that are not in dispute 
between the parent and the public agency.
     Section 300.520(b), regarding a special rule about the 
transfer of parental rights at the age of majority, has been revised to 
more clearly state that a State must establish procedures for 
appointing the parent of a child with a disability, or if the parent is 
not available, another appropriate individual, to represent the 
educational interests of the child throughout the child's eligibility 
under Part B of the Act if, under State law, a child who has reached 
the age of majority, but has not been determined to be incompetent, can 
be determined not to have the ability to provide informed consent with 
respect to the child's educational program.

Discipline Procedures

     Section 300.530(d)(1)(i), regarding services, has been 
revised to be consistent with section 615(k)(1)(D)(i) of the Act, by 
adding a reference to the FAPE requirements in Sec.  300.101(a).
     Section 300.530(d)(4), regarding the removal of a child 
with a disability from the child's current placement for 10 school days 
in the same school year, has been revised to remove the reference to 
school personnel, in consultation with at least one of the child's 
teachers, determining the location in which services will be provided.
     Section 300.530(d)(5), regarding removals that constitute 
a change of placement under Sec.  300.536, has been revised to remove 
the reference to the IEP Team determining the location in which 
services will be provided.
     A new Sec.  300.530(e)(3), has been added to provide that, 
if the LEA, the parent, and members of the child's IEP Team determine 
that the child's behavior was the direct result of the LEA's failure to 
implement the child's IEP, the LEA must take immediate steps to remedy 
those deficiencies.
     Section 300.530(h), regarding notification, has been 
changed to specify that, on the date on which a decision is made to 
make a removal that constitutes a change in the placement of a child 
with a disability because of a violation of a code of student conduct, 
the LEA must notify the parents of that decision, and provide the 
parents the procedural safeguards notice described in Sec.  300.504.
     Section 300.532 (Appeal) has been revised, as follows:
    (1) Paragraph (a) of Sec.  300.532, regarding the conditions in 
which the parent of a child with a disability or an LEA may request a 
hearing, has been

[[Page 46546]]

modified to clarify that the hearing is requested by filing a complaint 
pursuant to Sec. Sec.  300.507 and 300.508(a) and (b).
    (2) Section 300.532(b)(3) has been changed to more definitively 
provide that if the LEA believes that returning the child to his or her 
original placement is substantially likely to result in injury to the 
child or others.
    (3) Section 300.532(c)(3), regarding an expedited due process 
hearing, has been adjusted to provide that unless the parents and an 
LEA agree in writing to waive a resolution meeting, or agree to use the 
mediation process described in Sec.  300.506, the resolution meeting 
must occur within seven days of receiving notice of the due process 
complaint, and the hearing may proceed within 15 days of receipt of the 
due process complaint unless the matter has been resolved to 
satisfaction of both parties.
    (4) Proposed Sec.  300.532(c)(4), regarding the two-day timeframe 
for disclosing information to the opposing party prior to an expedited 
due process hearing, has been removed.
     Section 500.536(a)(2)(ii) (proposed Sec.  300.536(b)(2)) 
has been revised to remove the requirement that a child's behavior must 
have been a manifestation of the child's disability before determining 
that a series of removals constitutes a change in placement under Sec.  
300.536. Paragraph (a)(2)(ii) has also been amended to reference the 
child's behavior in ``previous'' incidents that resulted in the series 
of removals.
     A new Sec.  300.536(b) has been added to clarify that the 
public agency (subject to review through the due process and judicial 
proceedings) makes the determination, on a case-by-case basis, whether 
a pattern of removals constitutes a change in placement and that the 
determination is subject to review through due process and judicial 
determinations.
     A new Sec.  300.537 (State enforcement mechanisms) has 
been added to clarify that notwithstanding Sec.  300.506(b)(7) and 
Sec.  300.510(c)(2), which provide for judicial enforcement of a 
written agreement reached as a result of a mediation or resolution 
meeting, nothing in this part would prevent the SEA from using other 
mechanisms to seek enforcement of that agreement, provided that use of 
those mechanisms is not mandatory and does not delay or deny a party 
the right to seek enforcement of the written agreement in a State court 
of competent jurisdiction or in a district court of the United States.

Subpart F--Monitoring, Enforcement, Confidentiality, and Program 
Information

Monitoring, Technical Assistance, and Enforcement

     Section 300.600 (State monitoring and enforcement) has 
been revised, as follows:
    (1) Section 300.600(a) has been amended to require the State to 
enforce Part B of the Act in accordance with Sec.  300.604(a)(1) and 
(a)(3), (b)(2)(i) and (b)(2)(v), and (c)(2).
    (2) A new paragraph (d) has been added, which provides that the 
State must monitor the LEAs located in the State, using quantifiable 
indicators in each of the following priority areas, and such 
qualitative indicators as are needed to adequately measure performance 
in those areas, including: (A) Provision of FAPE in the least 
restrictive environment; (B) State exercise of general supervision, 
including child find, effective monitoring, the use of resolution 
meetings, and a system of transition services as defined in Sec.  
300.43 and in 20 U.S.C. 1437(a)(9); and (C) disproportionate 
representation of racial and ethnic groups in special education and 
related services, to the extent the representation is the result of 
inappropriate identification.
     A new Sec.  300.601(b)(2), regarding State use of targets 
and reporting, has been added to specify that, if permitted by the 
Secretary, if a State collects data on an indicator through State 
monitoring or sampling, the State must collect data on the indicator at 
least once during the period of the State performance plan.
     A new Sec.  300.608(b), regarding State enforcement, has 
been added to specify that States are not restricted from utilizing any 
other authority available to them to monitor and enforce the 
requirements of Part B of the Act.

Confidentiality of Information

     Section 300.622 (Consent) has been restructured and 
revised to more accurately reflect the Department's policy regarding 
when parental consent is required for disclosures of personally 
identifiable information, as follows:
    (1) Paragraph (a) of Sec.  300.622 has been changed to provide that 
parental consent must be obtained before personally identifiable 
information is disclosed to parties other than officials of 
participating agencies, unless the information is contained in 
education records, and the disclosure is authorized without parental 
consent under the regulations for the Family Educational Rights and 
Privacy Act (FERPA, 34 CFR part 99).
    (2) A new Sec.  300.622(b)(1) has been added to clarify that 
parental consent is not required before personally identifiable 
information is released to officials of participating agencies for 
purposes of meeting a requirement of Part B of the Act or these 
regulations.
    (3) A new Sec.  300.622(b)(2) has been added to provide that 
parental consent must be obtained before personally identifiable 
information is released to officials of participating agencies that 
provide or pay for transition services.
    (4) A new paragraph (b)(3) has been added to require that, with 
respect to parentally-placed private school children with disabilities, 
parental consent must be obtained before any personally identifiable 
information is released between officials in the LEA where the private 
school is located and the LEA of the parent's residence.
    (5) Proposed Sec.  300.622(c), regarding the requirement to provide 
policies and procedures for use in the event that a parent refuses to 
consent, has been removed because it is covered elsewhere in these 
regulations.

Subpart G--Authorization, Allotment, Use of Funds, and Authorization of 
Appropriations

Allotments, Grants, and Use of Funds

     Section 300.701(a)(1)(ii)(A), regarding the applicable 
requirements of Part B of the Act that apply to freely associated 
States, has been revised by removing the five listed requirements 
because those requirements did not include all requirements that apply 
to freely associated States. This change clarifies that freely 
associated States must meet the applicable requirements that apply to 
States under Part B of the Act.
     Section 300.704(c)(3)(i), regarding the requirement to 
develop, annually review, and revise (if necessary) a State plan for 
the high cost fund, has been revised to add a new paragraph (F) that 
requires that if the State elects to reserve funds for supporting 
innovative and effective ways of cost sharing, it must describe in its 
State plan how these funds will be used.
     Section 300.706 (Allocation for State in which by-pass is 
implemented for parentally-placed private school children with 
disabilities) has been removed because it is no longer applicable. The 
section has been redesignated as ``Reserved.''

Secretary of the Interior

     Section 300.707 (Use of amounts by Secretary of the 
Interior) has been changed, as follows:

[[Page 46547]]

    (1) The definition of Tribal governing body of a school has been 
replaced with the definition of tribal governing body from 25 U.S.C. 
2021(19).
    (2) Section 300.707(c), regarding an additional requirement under 
``Use of amounts by Secretary of the Interior,'' has been revised to 
clarify that, with respect to all other children aged 3 to 21, 
inclusive, on reservations, the SEA of the State in which the 
reservation is located must ensure that all the requirements of Part B 
of the Act are met.
     Section 300.713 (Plan for coordination of services) has 
been revised to require (1) in Sec.  300.713(a), the Secretary of the 
Interior to develop and implement a plan for the coordination of 
services for all Indian children with disabilities residing on 
reservations served by elementary schools and secondary schools for 
Indian children operated or funded by the Secretary of the Interior, 
and (2) in Sec.  300.713(b), the plan to provide for the coordination 
of services benefiting these children from whatever source covered by 
the plan, including SEAs, and State, local, and tribal juvenile and 
adult correctional facilities.

Analysis of Comments and Changes

Introduction

    In response to the invitation in the NPRM, more than 5,500 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and of the changes in the regulations since publication of the 
NPRM immediately follows this introduction.
    The perspectives of parents, individuals with disabilities, 
teachers, related services providers, State and local officials, 
members of Congress, and others were very important in helping us to 
identify where changes to the proposed regulations were necessary, and 
in formulating many of the changes. In light of the comments received, 
a number of significant changes are reflected in these final 
regulations.
    We discuss substantive issues under the subpart and section to 
which they pertain. References to subparts in this analysis are to 
those contained in the final regulations. The analysis generally does 
not address--
    (a) Minor changes, including technical changes made to the language 
published in the NPRM;
    (b) Suggested changes the Secretary is not legally authorized to 
make under applicable statutory authority; and
    (c) Comments that express concerns of a general nature about the 
Department or other matters that are not directly relevant to these 
regulations, such as requests for information about innovative 
instructional methods or matters that are within the purview of State 
and local decision-makers.

Subpart A--General

Definitions Used in This Part

Applicability of This Part to State and Local Agencies (Sec.  300.2)
    Comment: None.
    Discussion: Section Sec.  300.2(c)(2) contains an incorrect 
reference to Sec.  300.148(b). The correct reference should be to Sec.  
300.148.
    Changes: We have removed the reference to Sec.  300.148(b) and 
replaced it with a reference to Sec.  300.148.
Assistive Technology Device (Sec.  300.5)
    Comment: Some commenters opposed the exclusion of surgically 
implanted medical devices in the definition of assistive technology 
device. Another commenter recommended limiting the definition of 
assistive technology device to a device that is needed to achieve 
educational outcomes, rather than requiring local educational agencies 
(LEAs) to pay for any assistive technology device that increases, 
maintains, or improves any functional need of the child.
    Discussion: The definition of assistive technology device in Sec.  
300.5 incorporates the definition in section 602(1)(B) of the Act. We 
do not believe the definition should be changed in the manner suggested 
by the commenters because the changes are inconsistent with the 
statutory definition. The definition in the Act specifically refers to 
any item, piece of equipment, or product system that is used to 
increase, maintain, or improve the functional capabilities of the child 
and specifically excludes a medical device that is surgically implanted 
or the replacement of such device. Accordingly, we continue to believe 
it is appropriate to exclude surgically implanted medical devices from 
this definition. In response to the second comment, Sec.  300.105(a) 
requires each public agency to ensure that assistive technology devices 
(or assistive technology services, or both) are made available to a 
child with a disability if required as part of the child's special 
education, related services, or supplementary aids and services. This 
provision ties the definition to a child's educational needs, which 
public agencies must meet in order to ensure that a child with a 
disability receives a free appropriate public education (FAPE).
    Changes: None.
    Comment: One commenter requested that the regulations clarify that 
an assistive technology device is not synonymous with an augmentative 
communication device. A few commenters recommended including recordings 
for the blind and dyslexic playback devices in the definition of 
assistive technology devices. Some commenters recommended including 
language in the regulations clarifying that medical devices used for 
breathing, nutrition, and other bodily functions are assistive 
technology devices.
    Discussion: The definition of assistive technology device does not 
list specific devices, nor would it be practical or possible to include 
an exhaustive list of assistive technology devices. Whether an 
augmentative communication device, playback devices, or other devices 
could be considered an assistive technology device for a child depends 
on whether the device is used to increase, maintain, or improve the 
functional capabilities of a child with a disability, and whether the 
child's individualized education program (IEP) Team determines that the 
child needs the device in order to receive a free appropriate public 
education (FAPE). However, medical devices that are surgically 
implanted, including those used for breathing, nutrition, and other 
bodily functions, are excluded from the definition of an assistive 
technology device in section 602(1)(B) of the Act. The exclusion 
applicable to a medical device that is surgically implanted includes 
both the implanted component of the device, as well as its external 
components.
    Changes: None.
    Comment: A few commenters asked whether the definition of assistive 
technology device includes an internet-based instructional program, and 
what the relationship is between internet-based instructional programs 
and specially-designed instruction.
    Discussion: An instructional program is not a device, and, 
therefore, would not meet the definition of an assistive technology 
device. Whether an internet-based instructional program is appropriate 
for a particular child is determined by the child's IEP Team, which 
would determine whether the program is needed in order for the child to 
receive FAPE.
    Changes: None.
    Comment: A few commenters recommended including the proper 
functioning of hearing aids in the definition of assistive technology 
device.
    Discussion: We believe that the provision requiring public agencies 
to ensure that hearing aids worn in school are functioning properly is 
more appropriately included in new Sec.  300.113

[[Page 46548]]

(proposed Sec.  300.105(b)). As noted in the Analysis of Comments and 
Changes section discussing subpart B, we have added a new Sec.  300.113 
to address the routine checking (i.e., making sure they are turned on 
and working) of hearing aids and external components of surgically 
implanted devices.
    Changes: None.
Assistive Technology Service (Sec.  300.6)
    Comment: One commenter requested clarifying ``any service'' in the 
definition of assistive technology service.
    Discussion: We believe the definition is clear that an assistive 
technology service is any service that helps a child with a disability 
select an appropriate assistive technology device, obtain the device, 
or train the child to use the device.
    Changes: None.
    Comment: One commenter stated that services necessary to support 
the use of playback devices for recordings for the blind and dyslexic 
should be added to the definition of assistive technology service.
    Discussion: A service to support the use of recordings for the 
blind and dyslexic on playback devices could be considered an assistive 
technology service if it assists a child with a disability in the 
selection, acquisition, or use of the device. If so, and if the child's 
IEP Team determines it is needed for the child to receive FAPE, the 
service would be provided. The definition of assistive technology 
service does not list specific services. We do not believe it is 
practical or possible to include an exhaustive list of assistive 
technology services, and therefore, decline to add the specific 
assistive technology service recommended by the commenter to the 
definition.
    Changes: None.
    Comment: One commenter recommended evaluating all children with 
speech or hearing disabilities to determine if they can benefit from 
the Federal Communications Commission's specialized telephone assistive 
services for people with disabilities.
    Discussion: Evaluations under section 614 of the Act are for the 
purpose of determining whether a child has a disability and because of 
that disability needs special education and related services, and for 
determining the child's special education and related services needs. 
It would be inappropriate under the Act to require evaluations for 
other purposes or to require an evaluation for telephone assistive 
services for all children with speech and hearing disabilities. 
However, if it was determined that learning to use telephone assisted 
services, was an important skill for a particular child (e.g., as part 
of a transition plan), it would be appropriate to conduct an evaluation 
of that particular child to determine if the child needed specialized 
instruction in order to use such services.
    Changes: None.
    Comment: One commenter requested that the definition of assistive 
technology service specifically exclude a medical device that is 
surgically implanted, the optimization of device functioning, 
maintenance of the device, and the replacement of the device.
    Discussion: The definition of related services in Sec.  300.34(b) 
specifically excludes a medical device that is surgically implanted, 
the optimization of device functioning, maintenance of the device, or 
the replacement of that device. In addition, the definition of 
assistive technology device in Sec.  300.5 specifically excludes a 
medical device that is surgically implanted and the replacement of that 
device. We believe it is unnecessary to repeat these exclusions in the 
definition of assistive technology service.
    Changes: None.
Charter School (Sec.  300.7)
    Comment: Several commenters suggested that we include in the 
regulations the definitions of terms that are defined in other 
statutes. For example, one commenter requested including the definition 
of charter school in the regulations.
    Discussion: Including the actual definitions of terms that are 
defined in statutes other than the Act is problematic because these 
definitions may change over time (i.e., through changes to statutes 
that establish the definitions). In order for these regulations to 
retain their accuracy over time, the U.S. Department of Education 
(Department) would need to amend the regulations each time an included 
definition that is defined in another sta