Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 27690-27701 [E8-10522]

Download as PDF 27690 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules Potomac Center Plaza, Washington, DC 20202–2600. DEPARTMENT OF EDUCATION 34 CFR Part 300 RIN 1820–AB60 [Docket ID ED–2008–OSERS–0005] Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities Office of Special Education and Rehabilitative Services, Department of Education. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: The Secretary proposes to amend the regulations in 34 CFR part 300 governing the Assistance to States for the Education of Children with Disabilities Program and Preschool Grants for Children with Disabilities Program, as published in the Federal Register on August 14, 2006, and seeks public comment on the proposed amendments that we have determined are necessary for effective implementation and administration of these programs. The proposed regulations were not included in the notice of proposed rulemaking published in the Federal Register on June 21, 2005 to implement changes made to the Individuals with Disabilities Education Act (IDEA or Act), as amended by the Individuals with Disabilities Education Improvement Act of 2004, and, thus, have not previously been available for public comment. DATES: We must receive your comments on or before July 28, 2008. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments. Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket is available on the site under ‘‘How To Use This Site.’’ • Postal Mail, Commercial Delivery, or Hand Delivery: If you mail or deliver your comments about these proposed regulations, address them to Tracy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5107, rwilkins on PROD1PC63 with PROPOSALS2 SUMMARY: VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 Privacy Note: The Department’s policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing on the Federal eRulemaking Portal at http:// www.regulations.gov. All submissions will be posted to the Federal eRulemaking Portal without change, including personal identifiers and contact information. FOR FURTHER INFORMATION CONTACT: Tracy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5107, Potomac Center Plaza, Washington, DC 20202–2600. Telephone: (202) 245–7605. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (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 the programs. During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You also may inspect the comments, in person, in Room 5104, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Background On December 3, 2004, the Individuals with Disabilities Education Improvement Act of 2004 was enacted into law as Pub L. 108–446, and made significant changes to the IDEA. On June 21, 2005, the Secretary published a notice of proposed rulemaking in the Federal Register (70 FR 35782) (June 21, 2005 NPRM) to amend the regulations governing the Assistance to States for the Education of Children with Disabilities Program (Part 300), the Preschool Grants for Children with Disabilities Program (Part 301), and Service Obligations under Special Education Personnel Development to Improve Services and Results for Children with Disabilities (Part 304). Final regulations for Part 304— Special Education-Personnel Development to Improve Services and Results for Children with Disabilities were published in the Federal Register on June 5, 2006 (71 FR 32396), and became effective July 5, 2006. On August 14, 2006, the Secretary published final regulations in the Federal Register (71 FR 46540) that addressed more than 5,500 public comments on Parts 300 and 301 that were received in response to the June 21, 2005 NPRM. With the issuance of those final regulations, Part 301 was removed and the regulations implementing the Preschool Grants for Children with Disabilities Program were included under subpart H of the final regulations for Part 300. The final regulations became effective October 13, 2006. In developing final regulations for the Assistance to States for the Education of Children with Disabilities Program, we identified certain issues for which additional regulatory changes might be necessary. These issues, which we address in this NPRM, are: (1) Parental revocation of consent after consenting to the initial provision of services; (2) a State’s or local educational agency’s (LEA’s) obligation to make positive efforts to employ qualified individuals E:\FR\FM\13MYP2.SGM 13MYP2 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules with disabilities; (3) representation of parents by non-attorneys in due process hearings; (4) State monitoring, technical assistance, and enforcement of the Part B program; and (5) the allocation of funds, under sections 611 and 619 of the Act, to LEAs that are not serving any children with disabilities. This NPRM also proposes minor modifications to the consent provisions to correct an inadvertent omission. rwilkins on PROD1PC63 with PROPOSALS2 Significant Proposed Regulations We discuss issues according to subject, with appropriate sections of the proposed regulations indicated. Parental Revocation of Consent for Special Education Services (§§ 300.9 and 300.300) We propose to amend §§ 300.9 and 300.300 (71 FR 46757, 46783–46784) to permit parents to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. Under the proposed regulation, a public agency would not be able, through mediation or a due process hearing, to challenge the parent’s decision or seek a ruling that special education and related services must continue to be provided to the child. Under section 614(a)(1)(D)(i)(II) of the Act, agencies responsible for making a free appropriate public education (FAPE) available to a child with a disability under Part B of the Act must seek to obtain informed consent from the child’s parent before initiating the provision of special education and related services to the child. Section 614(a)(1)(D)(ii)(II) further requires that, if a parent refuses to provide such consent, the LEA shall not require the provision of those services to the child by utilizing the due process procedures under section 615 of the Act. In these circumstances, under section 614(a)(1)(D)(ii)(III) of the Act, the LEA is not considered to be in violation of its obligation to provide FAPE and is not required to convene an individualized education program (IEP) Team meeting or develop an IEP. The regulations in § 300.300(b) (71 FR 46784) interpret the statutory provision in section 614(a)(1)(D)(i)(II) of the Act to require consent prior to the initial provision of special education and related services; i.e., before a child with a disability receives special education and related services for the first time. However, the regulations do not specifically address whether parents, by revoking their consent, can require a VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 public agency to cease providing their child special education and related services after the parents already have consented to the initial provision of special education and related services and the child has begun receiving those services. It has been our longstanding interpretation of the current regulations in § 300.300(b), and similar regulations that were in effect prior to October 13, 2006, that, although parents have the right to determine whether their child would initially receive special education and related services by providing or withholding parental consent for the initial provision of services, once the child receives special education and related services, parents cannot unilaterally withdraw their child from receipt of special education and related services. If parents no longer want their child to receive those services, yet the public agency believes the services are necessary to ensure that the child continues to receive FAPE, our view was that the public agency had an obligation to continue to provide the services, or if under State law the parent had the right to consent to continued services, to take the necessary steps, which could include using informal means to reach agreement with the parent, as well as requesting a due process hearing, to seek to override the parent’s refusal to consent to the continuation of those services. The issue of whether parents have the right to unilaterally withdraw their child from continued receipt of special education and related services was not included in the June 21, 2005 NPRM. The Department, however, received several comments on the consent provisions in the proposed regulations in §§ 300.9 and 300.300(b), including comments requesting that we address situations in which a child’s parents want to discontinue special education and related services because they believe that their child no longer needs those services. As we indicated in the Analysis of Comments and Changes section of the final regulations (71 FR 46551, 46633), these commenters stated that public agencies should not be allowed to use the Part B procedural safeguards to continue special education and related services if a parent revokes consent. In response, we indicated that we would solicit comment on this suggested change in a subsequent notice of proposed rulemaking. Therefore, we propose to amend the regulations to provide that parents may unilaterally withdraw their child from continued receipt of special education and related services and that public agencies may not take steps to override PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 27691 a parent’s refusal to consent to further services. Just as, under section 614(a)(1)(D)(ii)(II), parents have the authority to consent to the initial provision of special education and related services, we believe that parents also should have the authority to revoke that consent, thereby ending the provision of special education and related services to their child. This change is also consistent with the IDEA’s emphasis on the role of parents in protecting their child’s rights and the Department’s goal of enhancing parent involvement and choice in their child’s education. These proposed regulations would not require public agencies, once they have obtained parental consent for the initial provision of special education and related services, to obtain parental consent to provide special education and related services at any subsequent time, such as for the provision of services under a subsequent IEP. We believe that including this type of additional consent requirement would be unduly burdensome for public agencies, and an unwarranted intrusion on State and local control of education. States, however, have the discretion to establish additional consent requirements, consistent with the provisions in § 300.300(d) (71 FR 46784). The proposed amendment to § 300.300(b)(3) would combine the provisions in current § 300.300(b)(3) and (b)(4) (71 FR 46784) relating to parental consent for the provision of initial services. Section 300.300(b)(3) currently provides that a public agency may not use the procedures in subpart E of the regulations (Procedural Safeguards and Due Process Procedures) to obtain agreement or a ruling that services may be provided if the parent of a child fails to respond or refuses to consent to the initial provision of services. Section 300.300(b)(4) currently provides that a public agency will not be considered in violation of its obligation to make FAPE available and is not required to convene an IEP Team meeting or develop an IEP if a parent refuses or fails to consent to the initial provision of services. This proposed change would simplify the regulation by eliminating the slight differences in the introductory material in the current provisions and would clarify that the provision would apply to situations in which a parent refuses or fails to consent to the initial provision of special education and related services. We propose to add a new § 300.300(b)(4) to provide that if, at any time subsequent to the initial provision of special education and related E:\FR\FM\13MYP2.SGM 13MYP2 rwilkins on PROD1PC63 with PROPOSALS2 27692 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules services, the parent of a child revokes consent for the provision of special education and related services, a public agency—(a) may not continue to provide special education and related services to the child; (b) may not use the procedures in subpart E of the regulations (including the mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) to obtain agreement or a ruling that services may be provided; (c) will not be considered in violation of its obligation to make FAPE available to the child for failure to provide the child with further special education and related services; and (d) is not required to convene an IEP Team meeting or develop an IEP, under §§ 300.320 through 300.324. Therefore, this proposed regulation would—(a) clarify that parents have the right to withdraw their child from receipt of special education and related services without being subjected to mediation or a due process hearing requested by the public agency; and (b) protect the public agency from any subsequent action by the parents based on the public agency’s termination of special education services following the parents’ revocation of consent. Of course, if a parent subsequently provides consent for services, a public agency would again have an obligation to make FAPE available to the child, including developing and implementing an IEP, as appropriate. We also note that under current § 300.534(c)(1)(ii) a public agency is not deemed to have knowledge that a child is a child with a disability for purposes of disciplinary actions if the parent of the child has refused services under the IDEA; for example, if a parent revokes consent for the provision of special education services and the child subsequently faces a disciplinary action, the school district would be able to discipline the child in the same manner as a nondisabled child. This provision would apply to situations in which a parent has revoked consent for the receipt of special education and related services. We also propose to revise § 300.300(d)(2) and (d)(3) (71 FR 46784) to correct an inadvertent omission. Section 300.300(d)(2) (71 FR 46784) currently provides that States may require parental consent for other services and activities under Part 300 in addition to the consent requirements in § 300.300(a) (71 FR 46783), which addresses parental consent for an initial evaluation. Section 300.300(d)(3) (71 FR 46784) currently provides that a public agency may not use a parent’s refusal to VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 consent to one service or activity under § 300.300(a) or (d)(2) to deny the parent or child other services and activities. To be consistent with comparable provisions in effect before the final regulations published in 2006, § 300.300(d)(2) should have included a reference to the parental consent provisions in § 300.300(a), (b), and (c), rather than just § 300.300(a), and § 300.300(d)(3) should have referred to § 300.300(a), (b), (c), or (d)(2), rather than just § 300.300(a) or (d)(2). Therefore, we propose to revise § 300.300(d)(2) to refer to paragraphs (a), (b), and (c) of § 300.300 rather than just paragraph (a). We propose to revise § 300.300(d)(3) to refer to paragraphs (a), (b), (c), or (d)(2) of § 300.300, rather than just paragraphs (a) or (d)(2). We would add a new § 300.9(c)(3) to clarify that, if a parent revokes consent for the child’s receipt of special education and related services after the child is initially provided special education and related services, the public agency would not be required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the parent’s revocation of consent. We believe that this change is necessary to clarify that the child’s education records would not be required to be changed for the period prior to the parent’s revocation of consent for special education and related services. Schools need the ability to keep accurate records of a child’s school experience, including whether the child received special education and related services. States’ Sovereign Immunity and Positive Efforts To Employ and Advance Qualified Individuals With Disabilities (§ 300.177) We propose to amend § 300.177, regarding States’ sovereign immunity, by adding a new provision relating to States’ and LEAs’ obligations to make positive efforts to employ and advance qualified individuals with disabilities. Specifically, we are proposing to redesignate current § 300.177(a) through (c), regarding States’ sovereign immunity, as proposed § 300.177(a)(1) through (a)(3), and add a new paragraph (b) to provide that any recipient of assistance under Part B of the Act must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under Part B of the Act, such as special education programs of an SEA or LEA or the State-wide assessment program of an SEA that is using IDEA funds to develop assessments for children with PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 disabilities. This paragraph would reflect the provisions in section 606 of the Act, which provides that the Secretary will ensure that each grant recipient under the IDEA makes positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under the IDEA. Representation by Non-Attorneys in Due Process Hearings (§ 300.512) Section 615(h)(1) of the Act provides that any party to a hearing conducted under Part B of the IDEA has the right to be accompanied and advised by counsel, and by individuals with special knowledge or training with respect to the problems of children with disabilities. This statutory provision is reflected in § 300.512(a)(1) (71 FR 46795). Both the Act and its implementing regulations are silent on the issue of whether individuals who are not attorneys, but have special knowledge or expertise regarding the problems of children with disabilities, may represent parties at IDEA due process hearings. However, as indicated in an April 8, 1981 letter from Theodore Sky, Acting General Counsel of the Department of Education, to the Honorable Frank B. Brouillet, the Department previously interpreted section 615(h) of the Act and implementing regulations to mean that attorneys and lay advocates may perform the same functions at due process hearings. One commenter, in responding to the June 21, 2005 NPRM, requested that the Department amend the regulations to indicate that a parent has the right to be represented by a non-attorney at an IDEA due process hearing. The Department believes that some clarification is warranted because the IDEA is silent regarding the representational role of non-attorneys at IDEA due process hearings. In the absence of statutory or regulatory language, at least one court concluded that State laws regulating the practice of law and prohibiting representation by lay advocates in due process hearings do not conflict with the IDEA. In re Arons, 756 A.2d 867 (Del. 2000), cert. denied sub nom, Arons v. Office of Disciplinary Counsel, 532 U.S. 1065 (2001). Given that the language of the Act and regulations is not clear, we are persuaded now that this position best reflects an appropriate regard for the principle of Federal-State comity. We believe that the regulations should respect the interests that States have in regulating the practice of law so as to protect the public and ensure the appropriate administration of justice. E:\FR\FM\13MYP2.SGM 13MYP2 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules Therefore, we propose to change the Department’s earlier interpretation of section 615(h) of the Act and the regulations regarding representation of parents by non-attorneys in due process hearings, and amend the regulation in § 300.512(a)(1) (71 FR 46795) accordingly. Specifically, § 300.512(a)(1) (71 FR 46795), concerning a parent’s right to be accompanied and advised by counsel and by other individuals with special knowledge or training with respect to the problems of children with disabilities, would be amended to specify that a parent’s right to be represented by non-attorneys at due process hearings is determined by State law. We believe alerting parents that State laws affect whether they can be represented in a due process hearing by a non-attorney advocate should reduce future litigation of this issue. The proposed change also is consistent with the Department’s general position to provide flexibility to States where the IDEA is silent or where State law does not conflict with the Act. Because this proposed change would directly reverse a prior interpretation that the Department authoritatively adopted and consistently followed, and the June 21, 2005 NPRM did not indicate that we were considering any change, we are now proposing in this NPRM, that a parent’s right to be represented by non-attorneys at a due process hearing must be determined under State law. Note that this change would not prevent parents from representing themselves in due process hearings or during court proceedings under the IDEA. In Winkelman v. Parma City School District, 550 U.S. lll, 127 S. Ct. 1994 (2007), the Supreme Court held that parents can prosecute IDEA claims on their own behalf without being represented by an attorney. The proposed regulatory change would not affect this holding. rwilkins on PROD1PC63 with PROPOSALS2 State Monitoring, Technical Assistance, and Enforcement (§§ 300.600, 300.602, and 300.606) 1. State Determinations About LEA Performance and State Enforcement Section 616(a)(1)(C) of the Act requires States to monitor the implementation of Part B of the Act by LEAs, and to enforce Part B of the Act in accordance with the monitoring priorities and enforcement mechanisms set forth in section 616(a)(3) and (e) of the Act. Section 300.600(a) (71 FR 46800) implements section 616(a)(1) of the Act, and requires States to monitor implementation of Part B of the Act by VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 LEAs, enforce Part B of the Act in accordance with the statutory enforcement mechanisms that are appropriate for States to apply to LEAs, and annually report on performance under Part B of the Act. Section 616(e) of the Act makes clear that the Secretary’s enforcement actions are based, in large part, on annual determinations about a State’s performance, as provided in section 616(d) of the Act. Based on the language in section 616(a)(1)(C)(ii) of the Act, which requires States to enforce Part B of the Act consistent with section 616(e), States also have an obligation to make annual determinations about each LEA’s performance using the same categories, under section 616(d) of the Act, that the Secretary applies to States. We believe that § 300.600(a) (71 FR 46800), however, should address more clearly States’ responsibilities to make annual determinations about each LEA’s performance. Therefore, we propose to amend § 300.600(a) (71 FR 46800) to clarify that a State must annually review and make determinations about the performance of each LEA in the State, consistent with the Secretary’s responsibility, under section 616(d) of the Act, to annually review and make determinations concerning the performance of each State. Specifically, we propose adding language to § 300.600(a) to clarify that States must use the categories listed in § 300.603(b)(1) (71 FR 46801) to make annual determinations about the performance of each LEA. We also believe that it would be useful to clarify the specific enforcement mechanisms that a State must use, consistent with section 616(a)(1)(C)(ii) and (e) of the Act. The current regulations in § 300.600(a) use regulatory citations to refer to the enforcement mechanisms in § 300.604 that States must use. We propose to revise § 300.600(a) (71 FR 46800) to identify specifically the enforcement mechanisms associated with each relevant regulatory citation. Therefore, we propose to reorganize § 300.600(a) for clarity by indicating that the State must: (a) Under proposed paragraph (a)(1), monitor the implementation of Part B of the IDEA; (b) under proposed paragraph (a)(2), make annual determinations about the performance of each LEA using the categories in § 300.603(b)(1); (c) under proposed paragraph (a)(3), enforce the requirements of the IDEA, consistent with § 300.604, by using applicable enforcement mechanisms in § 300.604(a)(1) (technical assistance), (a)(3) (conditions on funding of an LEA’s grant), (b)(2)(i) (corrective action PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 27693 plan or improvement plan), (b)(2)(v) (withholding funds, in whole or in part, by the SEA), and (c)(2) (withholding funds, in whole or in part, by the SEA); and (d) under proposed paragraph (a)(4), report annually to the public on the performance of the State and each LEA under Part B of the Act, as provided in § 300.602(b)(1)(A) and (b)(2). Proposed § 300.600(e) would clarify that a State, in exercising its monitoring responsibilities under § 300.600(d), must ensure that when it identifies noncompliance with the requirements of Part B of the Act by its LEAs, the noncompliance is corrected as soon as possible, and in no case, later than one year after the State’s identification. We propose to add § 300.600(e) because, based on our monitoring activities, we have determined that correction of noncompliance does not always occur in a timely manner. Noncompliance must be corrected in a timely manner to ensure that children with disabilities receive appropriate services and to ensure proper and effective implementation of the requirements of Part B of the IDEA. Throughout our 30 years of monitoring experience we have observed that, in most cases, when a State makes a good faith effort, the needed corrective actions can be accomplished and their effectiveness verified within one year. It is important to note that timely correction of noncompliance is critical to ensuring that children with disabilities receive a free appropriate public education. Allowing noncompliance to continue can negatively impact the education of great numbers of children with disabilities. Correction of noncompliance means that a State requires a public agency to revise any noncompliant policies, procedures and practices, and verifies, through a follow-up review of documentation or interviews, or both, that the noncompliant policies, procedures, and practices are corrected. We believe that States must ensure correction as soon as possible and that one year is a reasonable timeframe for an LEA to correct noncompliant policies, procedures, and practices and for the State to verify that the LEA is complying with the requirements under the IDEA. For example, if an SEA determines that an LEA is not in compliance with the requirement to make placement decisions consistent with the least restrictive environment requirements of the Act, we would expect the SEA to require corrective actions and verify correction by determining that the LEA corrected any noncompliant policies, procedures, or practices, and that placement teams, E:\FR\FM\13MYP2.SGM 13MYP2 27694 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules subsequent to those changes, were making placement decisions consistent with the requirements of the Act. rwilkins on PROD1PC63 with PROPOSALS2 2. Timeframe for Public Reporting About LEA Performance Section 300.602(b)(1)(i)(A) (71 FR 46801) implements section 616(b)(2)(C)(ii)(I) of the Act and requires a State to annually report to the public on the performance of each LEA in the State on the targets in the State’s performance plan. The Act is silent, however, on when a State must provide this report to the public and the June 21, 2005 NPRM did not address this issue. Following the publication of the final regulations on August 14, 2006 (71 FR 46540), the Department received many informal inquiries from SEA personnel and other interested parties regarding the timeframe for reporting information to the public about LEAs’ performance relative to its State’s targets. To clarify States’ obligations, we are proposing in § 300.602(b)(2) to require each State to report to the public on the performance of each LEA located in the State on the targets in the State’s performance plan no later than 60 days following a State’s submission of its annual performance report (APR) to the Secretary under § 300.602(b). We believe this timeframe is reasonable, and would not be burdensome to States. This timeframe should ensure that each State provides timely information to the public. 3. Additional Information To Be Made Available to the Public Section 300.602(b)(1)(i)(B) (71 FR 46801) implements section 616(b)(2)(C)(ii)(I) of the Act and requires each State to make its performance plan available through public means, including by posting it on the State’s Web site and distributing it to the media and through public agencies. The Department received inquiries regarding whether other materials, such as a State’s APRs to the Secretary and the annual report on the performance of each LEA on the targets in the State’s performance plan, must be made available through the same public means, so that the public has easy access to State and LEA performance information. We believe that public accountability is served by requiring States to make these documents available to the public by the same means as their performance plans, and this requirement should not impose significant burden on States, because the documents are already required and could easily be made available to the public. Public reporting of each LEA’s performance on the targets in the State’s VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 performance plan is currently required by § 300.602(b)(1)(i)(A) (71 FR 46801); however, the means by which such public reporting may be completed are not specified. Additionally, a State’s APRs are public documents that would otherwise be available to the public on request under State freedom of information laws. Therefore, we propose to amend § 300.602(b)(1)(i)(B) to require States to make each of the following documents available through public means (including, posting on the SEA’s Web site, distributing to the media, and distributing through public agencies): (a) The State’s performance plan, under § 300.601(a); (b) the State’s APRs, under § 300.602(b)(2); and (c) the State’s annual reports on the performance of each LEA located in the State, under § 300.602(b)(1)(i)(A). Additionally, in the interest of transparency and public accountability, we strongly encourage States to report to the public on any enforcement actions taken under § 300.604. 4. Notifying the Public of Federal Enforcement Actions Section 300.606 (71 FR 46802) implements section 616(e)(7) of the Act, which requires any State that has received notice of a determination under section 616(d)(2) of the Act to take steps to bring the pendency of an enforcement action, under section 616(e) of the Act, to the attention of the public within that State. However, § 300.606 is unclear about when States are required to notify the public of enforcement actions. There is confusion in States because of this lack of clarity. Some States may make public the Department’s determinations, enforcement actions, both determinations and enforcement actions, or neither determinations nor enforcement actions. This clarification would eliminate the confusion by delineating the public notification requirements. Therefore, we propose to clarify the circumstances under which public notice is required. Specifically, we propose to amend § 300.606 to require States to provide public notice of any enforcement action taken by the Secretary pursuant to § 300.604. This change would clarify that States do not have to provide public notice of the Secretary’s annual determinations, but must provide public notice when the Secretary takes an enforcement action as a result of those determinations. We believe that this clarification will minimize the States’ reporting burden while providing the public with appropriate notice of the actions taken by the Secretary as a result of the determinations required by PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 section 616(d) of the Act and § 300.603. Additionally, we propose to amend § 300.606 to specify that each State’s public notice of enforcement actions must include, posting the notice on the State’s Web site and distributing the notice to the media and through public agencies. Allocation of Funds Under Section 611 of the IDEA to LEAs That Are Not Serving Any Children With Disabilities (§ 300.705) 1. Subgrants to LEAs We propose to add language to § 300.705(a) (71 FR 46808), regarding subgrants to LEAs, to clarify that States are required to make a subgrant under section 611(f) of the Act to eligible LEAs, including public charter schools that operate as LEAs, even if an LEA is not serving any children with disabilities. This requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations. The Department’s Office of Inspector General (OIG) indicated, in an October 26, 2004 final audit report (2004 OIG Report), that the regulations and guidance implementing Part B of the Act in effect at that time did not address the application of the funding formula under section 611 of the Act for a charter school established as an LEA that does not have a child with a disability enrolled during the school’s first year of operation. See http:// www.ed.gov/about/offices/list/oig/ auditreports/a09e0014.pdf. The OIG recommended that we consider providing guidance on this issue. Given the OIG’s recommendation and because the Act and its implementing regulations are silent on this issue, we believe that it is necessary to regulate to ensure that all States treat LEAs, including public charter schools that operate as LEAs, in the same manner when making a subgrant under section 611(f) of the Act to LEAs, including those LEAs that are not serving any children with disabilities. Under section 611(f)(1) of the Act, each State must provide subgrants to LEAs, including public charter schools that operate as LEAs in the State, that have established their eligibility under section 613 of the Act for use in accordance with Part B of the Act. Under section 613(a) of the Act, an LEA is eligible for assistance under Part B of the Act for a fiscal year if the LEA submits a plan that provides assurances to the SEA that the LEA meets each of the conditions in section 613(a) of the Act. There is no requirement in section E:\FR\FM\13MYP2.SGM 13MYP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules 613(a) of the Act that an LEA must be serving children with disabilities for an LEA to be eligible for a subgrant. We believe that requiring States to make a subgrant to all eligible LEAs, including public charter schools that operate as LEAs, would ensure that LEAs have Part B funds available if they are needed to conduct child find activities or to serve children with disabilities who subsequently enroll or are identified during the year. The payment made to an LEA, including a public charter school that operates as an LEA, that is not serving any children with disabilities, would be based on enrollment and poverty data and any base payment to which the LEA is entitled, in accordance with the statutory formula in section 611(f)(2) of the Act. Under the current regulations, a previously-existing LEA not serving any children with disabilities, is entitled to the base payment it received in the previous fiscal year. A newly-created LEA, including a new public charter school LEA, is entitled to a base payment that is calculated by dividing the base allocation of LEAs that would have been responsible for serving children with disabilities now being served by the new LEA, among the new LEA and affected LEAs, based on the relative numbers of children with disabilities currently provided special education by each of the LEAs. See § 300.705(b)(2)(i) (71 FR 46808–46809). For a newly-created LEA that is not a public charter school LEA, a State has some flexibility in determining the number of children with disabilities currently provided special education by the newly-created LEA. For example, a State may choose to determine the base payment of a newly-created LEA based on the location of children with disabilities who were included in a previous count or a new count of children served that year. If the SEA determines that the newly-created LEA is not serving any children with disabilities, based on its count, the newly-created LEA would be entitled to a base payment of zero in its first year of operation. In determining the base payment to which a new public charter school LEA would be entitled, States must comply with the requirements in section 5206 of the ESEA and its implementing regulations in subpart H of 34 CFR part 76 of the Education Department General Administrative Regulations (EDGAR). These requirements apply to a public charter school LEA that opens or significantly expands its enrollment. Specifically under 34 CFR 76.791(b), when making a subgrant to a new public VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 charter school LEA, a State cannot rely on enrollment or eligibility data from a prior year when calculating the subgrant of a public charter school LEA opening for the first time. A State may, but is not required to, allocate funds to, or reserve funds for, an eligible new public charter school LEA based on reasonable estimates of projected enrollment at the public charter school LEA, in accordance with 34 CFR 76.789(b)(2). Once the public charter school LEA is open, the public charter school LEA must provide actual enrollment and eligibility data to the SEA at a time the SEA may reasonably require in accordance with 34 CFR 76.788(b)(2)(i). A State is not required to provide funds to a new public charter school LEA until the public charter school LEA provides the SEA with the required actual enrollment and eligibility data in accordance with 34 CFR 76.788(b)(2)(ii). If the SEA allocates funds based on estimated enrollment or eligibility data, the SEA must make appropriate adjustments to the amount of funds allocated to a new public charter school LEA, as well as to other LEAs, based on actual enrollment or eligibility data for the public charter school LEA, on or after the date the public charter school LEA first opens, in accordance with 34 CFR 76.796. If, on the date the SEA reasonably requires the new public charter school LEA to provide actual enrollment and eligibility data, which must be on or after the date the public charter school LEA opens, the new public charter school LEA is not serving any children with disabilities, its base payment in its first year of operation would be zero. Because we believe it would be burdensome for States to comply with the requirement to distribute funds to eligible LEAs not currently serving children with disabilities after subgrants have been made for a fiscal year, we propose to add language to § 300.705(a) to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations. 2. Base Payment Adjustments The 2004 OIG Report also recommended that the Department consider issuing guidance on whether a public charter school LEA that has no children with disabilities enrolled in its first year of operation is entitled to a base payment adjustment in subsequent years if it enrolls children with disabilities. We agree that further clarification is necessary and propose to add a new paragraph (iv) to § 300.705(b)(2) (71 FR 46808–09), PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 27695 regarding base payment adjustments. The amended regulations would require that an LEA that received a base payment of zero in its first year of operation because it was serving no children with disabilities, and that subsequently provides special education and related services to children with disabilities, must receive a base payment adjustment for the fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. Under this provision, the State must divide the base allocation determined under § 300.705(b)(1) for the LEAs that would have been responsible for serving children with disabilities now being served by the LEA, among the LEA and affected LEAs, based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21, currently provided special education by each of the LEAs. Under this proposed change, an LEA, including a public charter school that operates as an LEA, that received a base payment of zero in its first year of operation, would be entitled to a base payment adjustment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. This adjusted base payment would apply to all subsequent years, unless the LEA’s base payment is adjusted due to one of the other circumstances described in § 300.705(b)(2) (71 FR 46808–46809). Because the current regulations do not require a base payment adjustment under these circumstances, and we believe that it would be burdensome for States to comply with this requirement after subgrants have been made for a fiscal year, we propose to add language to § 300.705(b)(2)(iv), to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations. 3. Reallocation of Funds Section 611(f)(3) of the Act and § 300.705(c) (71 FR 46809) authorize an SEA to reallocate Part B funds not needed by an LEA, if the SEA determines that an LEA is adequately providing FAPE to all children with disabilities residing in the area served by that agency, with State and local funds. Under these statutory and regulatory provisions, States may, but are not required to, reallocate these Part B funds. The regulations in current § 300.705(c) do not address reallocation of funds from an LEA that does not use its funds because it is not serving any children with disabilities. E:\FR\FM\13MYP2.SGM 13MYP2 27696 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules We propose to amend § 300.705(c) (71 FR 46809) to indicate that, after an SEA distributes funds under Part B to an eligible LEA that is not serving any children with disabilities, as provided in proposed § 300.705(a), the SEA must determine, within a reasonable period of time prior to the end of the carryover period specified in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may, if it chooses, reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.704. Given the fact that small amounts of funds distributed late in their period of availability to LEAs would be prone to lapse, we are clarifying that States may use these funds at the State level, to the extent the State has not set aside the maximum amount for State-level activities, in order to increase the chance these funds would be well spent. Whether funds are reallocated or retained for use at the State-level under § 300.705(c), they must be obligated prior to the close of the period of availability for those funds. In sum, these proposed regulations would help to ensure that the funds under section 611 of the Act do not lapse, by making it clear that SEAs may redistribute funds that have not been obligated by LEAs that currently are not serving any children with disabilities or retain these funds for State-level activities. Allocation of Funds Under Section 619 of IDEA to LEAs That Are Not Serving Any Children With Disabilities (§ 300.815) rwilkins on PROD1PC63 with PROPOSALS2 1. Subgrants to LEAs We propose to add language to § 300.815 (71 FR 46813), regarding subgrants to LEAs, to clarify that States are required to make a subgrant under section 619(g) of the Act to eligible LEAs, including public charter schools that operate as LEAs, that are responsible for providing education to children aged three through five years (preschool), even if an LEA is not serving any preschool children with disabilities. This requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations. VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 The Department’s OIG indicated, in the 2004 OIG Report, that the regulations and guidance implementing Part B of the Act in effect at that time did not address the application of the funding formula under section 619 of the Act for a public charter school established as an LEA that does not have a preschool child with a disability enrolled during the school’s first year of operation. See http://www.ed.gov/ about/offices/list/oig/auditreports/ a09e0014.pdf. The OIG recommended that we consider providing guidance on this issue. Given the OIG’s recommendation and because the Act and its implementing regulations are silent on this issue, we believe that it is necessary to regulate to ensure that all States treat LEAs, including public charter schools that operate as LEAs, in the same manner when making a subgrant under section 619(g) of the Act to LEAs, including those LEAs that are not serving any preschool children with disabilities. Under section 619(g)(1) of the Act, each State must provide subgrants to LEAs, including public charter schools that operate as LEAs in the State, that have established their eligibility under section 613 of the Act. Under section 613(a) of the Act, an LEA is eligible for assistance under Part B of the Act for a fiscal year if the LEA submits a plan that provides assurances to the SEA that the LEA meets each of the conditions in section 613(a) of the Act. There is no requirement in section 613(a) of the Act that an LEA must be serving preschool children with disabilities in order for an LEA to be eligible for a subgrant. We believe that requiring States to make a subgrant to all eligible LEAs responsible for providing education to preschool children, including public charter schools that operate as LEAs, would ensure that LEAs have Part B funds available if they are needed to conduct child find activities or to serve preschool children with disabilities who subsequently enroll or are identified during the year. The payment made to an LEA, including a public charter school that operates as an LEA, that is not serving any preschool children with disabilities, would be based on enrollment and poverty data and any base payment to which the LEA is entitled, in accordance with the statutory formula in section 619(g) of the Act. Under the current regulations, a previously-existing LEA not serving any preschool children with disabilities, is entitled to the base payment it received in the previous fiscal year. A newlycreated LEA, including a new public charter school LEA, is entitled to a base PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 payment that is calculated by dividing the base allocation of LEAs that would have been responsible for serving preschool children with disabilities now being served by the new LEA, among the new LEA and affected LEAs, based on the relative numbers of preschool children with disabilities currently provided special education by each of the LEAs. See § 300.816(b)(1) (71 FR 46813). For a newly-created LEA that is not a public charter school LEA, a State has some flexibility in determining the number of preschool children with disabilities currently provided special education by the newly-created LEA. For example, a State may choose to determine the base payment of a newlycreated LEA based on the location of preschool children with disabilities who were included in a previous count or a new count of preschool children served that year. If the SEA determines that the newly-created LEA is not serving any preschool children with disabilities, based on its count, the newly-created LEA would be entitled to a base payment of zero in its first year of operation. In determining the base payment to which a new public charter school LEA would be entitled, States must comply with the requirements in section 5206 of the ESEA and its implementing regulations in subpart H of 34 CFR part 76 of EDGAR. These requirements apply to a public charter school LEA that opens or significantly expands its enrollment. Specifically, under 34 CFR 76.791(b), when making a subgrant to a new public charter school LEA, a State cannot rely on enrollment or eligibility data from a prior year when calculating the subgrant of a public charter school LEA opening for the first time. A State may, but is not required to, allocate funds to, or reserve funds for, an eligible new public charter school LEA based on reasonable estimates of projected enrollment at the public charter school LEA, in accordance with 34 CFR 76.789(b)(2). Once the public charter school LEA has opened, the public charter school LEA must provide actual enrollment and eligibility data to the SEA at a time the SEA may reasonably require in accordance with 34 CFR 76.788(b)(2)(i). A State is not required to provide funds to a new public charter school LEA until the public charter school LEA provides the SEA with the required actual enrollment and eligibility data in accordance with 34 CFR 76.788(b)(2)(ii). If the SEA allocates funds based on estimated enrollment or eligibility data, the SEA must make appropriate adjustments to the amount of funds allocated to a new public E:\FR\FM\13MYP2.SGM 13MYP2 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS2 charter school LEA, as well as to other LEAs, based on actual enrollment or eligibility data for the public charter school LEA, on or after the date the public charter school LEA first opens, in accordance with 34 CFR 76.796. If, on the date the SEA reasonably requires the new public charter school LEA to provide actual enrollment and eligibility data, which must be on or after the date the public charter school LEA opens, the new public charter school LEA is not serving any preschool children with disabilities, its base payment in its first year of operation would be zero. Because we believe it would be burdensome for States to comply with the requirement to distribute funds to eligible LEAs not currently serving preschool children with disabilities, after subgrants have been made for a fiscal year, we propose to add language to § 300.815 to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations. 2. Base Payment Adjustments The 2004 OIG Report also recommended that the Department consider issuing guidance on whether a public charter school LEA that has no preschool children with disabilities enrolled in its first year of operation is entitled to a base payment adjustment in subsequent years if it enrolls preschool children with disabilities. We agree that further clarification is necessary and propose to add a new paragraph (4) to § 300.816(b) (71 FR 46813), regarding base payment adjustments. The amended regulations would require that an LEA that is responsible for providing education to preschool children, but that received a base payment of zero in its first year of operation because it was serving no preschool children with disabilities, and that subsequently provides special education and related services to preschool children with disabilities, must receive a base payment adjustment for the fiscal year after the first annual child count in which the LEA reports that it is serving any preschool children with disabilities. Under this provision, the State must divide the base allocation determined under § 300.816(a) for the LEAs that would have been responsible for serving preschool children with disabilities now being served by the LEA, among the LEA and affected LEAs, based on the relative numbers of preschool children with disabilities currently provided special education by each of the LEAs. Under this proposed change, an LEA, including a public charter school that operates as an LEA, that received a base VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 payment of zero in its first year of operation, would be entitled to a base payment adjustment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any preschool children with disabilities. This adjusted base payment would apply to all subsequent years, unless the LEA’s base payment is adjusted due to one of the other circumstances described in § 300.816(b) (71 FR 46813). Because the current regulations do not require a base payment adjustment under these circumstances, and we believe it would be burdensome for States to comply with this requirement after subgrants have been made for a fiscal year, we propose to add language to § 300.816(b)(4), to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations. 3. Reallocation of Funds Section 619(g)(2) of the Act and § 300.817 (71 FR 46813) authorize an SEA to reallocate section 619 funds not needed by an LEA, if the SEA determines that an LEA is adequately providing FAPE to all preschool children with disabilities residing in the area served by that agency, with State and local funds. Under these statutory and regulatory provisions, States may, but are not required to, reallocate these section 619 funds. The regulations in current § 300.817 do not address reallocation of funds from an LEA that does not use its funds because it is not serving any preschool children with disabilities. We propose to amend § 300.817 (71 FR 46813) to indicate that, after an SEA distributes funds under section 619 to an eligible LEA that is not serving any preschool children with disabilities, as provided in proposed § 300.815, the SEA must determine, within a reasonable period of time prior to the end of the carryover period specified in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may, if it chooses, reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all preschool children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.812. Given the fact that small amounts of funds distributed late in their period of availability to LEAs would be prone to lapse, we are clarifying that States may PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 27697 use these funds at the State level, to the extent the State has not set aside the maximum amount for State-level activities, in order to increase the chance these funds would be well spent. Whether funds are reallocated or retained for use at the State level under § 300.817, they must be obligated prior to the close of the period of availability for those funds. In sum, these proposed regulations would help to ensure that the funds under section 619 of the Act do not lapse, by making it clear that SEAs may redistribute funds not obligated by LEAs that currently are not serving any children with disabilities aged three through five or retain these funds for State-level activities. Executive Order 12866 1. Potential Costs and Benefits Under Executive Order 12866, the Secretary must determine whether this regulatory action is ‘‘significant’’ and, therefore, subject to the requirements of the Executive Order and review by OMB. Section 3(f) of Executive Order 12866 defines a ‘‘significant regulatory action’’ as an action likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an ‘‘economically significant’’ rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. The Secretary has determined that this regulatory action is significant under section 3(f)(4) of the Executive Order. Under Executive Order 12866, we have assessed the potential costs and benefits of these proposed regulations. In conducting this analysis, the Department examined the extent to which the amended regulations would add to, or reduce, the costs for public agencies and others in relation to the costs of implementing the program regulations. Based on this analysis, the Secretary has concluded that the amendments to the regulations would not impose significant net costs in any one year. The amendments to the regulations would primarily affect SEAs and LEAs responsible for carrying out E:\FR\FM\13MYP2.SGM 13MYP2 27698 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules the requirements of Part B of the Act as a condition of receiving Federal financial assistance under the Act. For example, the amendments to the regulations add language to further explain the intent of the Act, clarify the intent of existing regulations, and add timeframes for implementation. The amendments do not add provisions to the regulations that would increase the fiscal responsibilities of, or burdens on, SEAs or LEAs in implementing the proposed amendments. In fact, the provisions related to parental revocation of consent may reduce burden on, and costs to, LEAs by relieving them of the obligation to override a parent’s refusal to consent subsequent to the initiation of special education services through informal means or through due process procedures. The clarification relating to non-attorney representation at due process hearings can be expected to reduce costs associated with disputes regarding non-attorney representation. rwilkins on PROD1PC63 with PROPOSALS2 2. Clarity of the Regulations Executive Order 12866 and the Presidential memorandum on ‘‘Plain Language in Government Writing’’ require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following: • Are the requirements in the proposed regulations clearly stated? • Do the proposed regulations contain technical terms or other wording that interferes with their clarity? • Does the format of the proposed regulations (use of headings, paragraphing, etc.) aid or reduce their clarity? • Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A ‘‘section’’ is preceded by the symbol ‘‘§ ’’ and a number heading; for example, § 300.172, regarding access to instructional materials.) • Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how? • What else could we do to make the proposed regulations easier to understand? To send any comments that concern how the Department could make these proposed regulations easier to understand see the instructions in the ADDRESSES section of the preamble. VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 Regulatory Flexibility Act Certification The Secretary certifies that these amendments to the final regulations governing the Assistance to States for the Education of Children with Disabilities and the Preschool Grants for Children with Disabilities programs, would not have a significant economic effect on a substantial number of small entities. The small entities that would be affected by these proposed regulations regarding allocation of funds under sections 611 and 619 of the IDEA to LEAs, that are not serving any children with disabilities, are small LEAs, including charter schools that operate as LEAs. These small entities would benefit from the proposed changes that clarify their eligibility for funding in cases where they are not serving any children with disabilities. Paperwork Reduction Act of 1995 Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520), we have assessed the potential information collections in these proposed regulations that would be subject to review by the OMB. In conducting this analysis, the Department examined the extent to which the amended regulations would add information collection requirements for public agencies. Based on this analysis, the Secretary has concluded that these amendments to the Part B IDEA regulations would not impose additional information collection requirements. The proposed changes to § 300.602(b)(1)(i)(B) (71 FR 46801) would—(1) Add the State’s APR to the list of documents that a State must make available through public means; and (2) specify that the SEA make the State’s performance plan, the State’s APR, and the State’s annual reports on the performance of each LEA in the State available to the public by posting the documents on the State’s Web site and distributing the documents to the media and through public agencies. Each State already is required to report to the Secretary on the annual performance of the State as a whole in its APR. Because the APR is a completed document, the additional time for reporting to the public would be minimal and is within the established reporting and recordkeeping estimate of current information collection 1820–0624 (71 FR 46751–46752). Additionally, States already are required by current § 300.602(a) and (b)(1)(i)(A) to analyze the performance of each LEA on the State’s targets, and to report annually to the public on the performance of each LEA on the targets. The proposed regulation, by requiring that these PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 documents be posted on the State’s Web site and be distributed to the media and through public agencies, merely adds specificity about the means of public reporting. The additional time for reporting to the public through these means would be minimal and is within the established reporting and recordkeeping estimate of current information collection 1820–0624 (71 FR 46751–46752). Intergovernmental Review This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79 of EDGAR. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of the Department’s specific plans and actions for this program. Assessment of Educational Impact The Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) at the following site: http://www.ed.gov/news/ fedregister. To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO) toll free at 1–800– 293–4922; or in the Washington, DC area at (202) 512–1530. Note: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/ index.html. List of Subjects in 34 CFR Part 300 Administrative practice and procedure, Education of individuals with disabilities, Elementary and secondary education, Equal educational opportunity, Grant programs— education, Privacy, Charter schools, Reporting and recordkeeping requirements. E:\FR\FM\13MYP2.SGM 13MYP2 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules Dated: May 7, 2008. Margaret Spellings, Secretary of Education. For the reasons discussed in the preamble, the Secretary proposes to amend title 34 of the Code of Federal Regulations as follows: PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES § 300.300 Parental consent. (a) States’ sovereign immunity. (1) A State that accepts funds under this part waives its immunity under the 11th amendment of the Constitution of the United States from suit in Federal court for a violation of this part. (2) In a suit against a State for a violation of this part, remedies (including remedies both at law and in equity) are available for such a violation in the suit against any public entity other than a State. (3) Paragraphs (a)(1) and (a)(2) of this section apply with respect to violations that occur in whole or part after the date of enactment of the Education of the Handicapped Act Amendments of 1990. (b) Positive efforts to employ and advance qualified individuals with disabilities. Each recipient of assistance under Part B of the Act must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under Part B of the Act. * * * * (b) * * * (3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency— (i) May not use the procedures in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child; (ii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and (iii) Is not required to convene an IEP Team meeting or develop an IEP under §§ 300.320 and 300.324 for the child. (4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent for the continued provision of special education and related services, the public agency— (i) May not continue to provide special education and related services to the child; (ii) May not use the procedures in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child; (iii) Will not be considered to be in violation of the requirement to make available FAPE to the child because of the failure to provide the child with further special education and related services; and (iv) Is not required to convene an IEP Team meeting or develop an IEP under §§ 300.320 and 300.324 for the child for further provision of special education and related services. * * * * * 5. Section 300.512 is amended by revising paragraph (a)(1) to read as follows: (Authority: 20 U.S.C. 1403, 1405) § 300.512 1. The authority citation for part 300 continues to read as follows: Authority: 20 U.S.C. 1221e–3, 1406, 1411– 1419, unless otherwise noted. * * * * * 2. Section 300.9 is amended by adding a new paragraph (c)(3). The addition reads as follows: § 300.9 Consent. * * * * * (c) * * * (3) If the parents revoke consent for their child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent. * * * * * 3. Section 300.177 is revised to read as follows: § 300.177 States’ sovereign immunity and positive efforts to employ and advance qualified individuals with disabilities. rwilkins on PROD1PC63 with PROPOSALS2 A. Revising paragraphs (b)(3) and (b)(4). B. In paragraph (d)(2), removing the words ‘‘paragraph (a)’’ and inserting, in their place, the words ‘‘paragraphs (a), (b), and (c)’’. C. In paragraph (d)(3), adding after the words ‘‘paragraphs (a)’’ the words ‘‘, (b), (c),’’. The revision reads as follows: 4. Section 300.300 is amended by: VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 * Hearing rights. (a) * * * PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 27699 (1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, except that whether parents have the right to be represented by nonattorneys at due process hearings is determined under State law; * * * * * 6. Section 300.600 is amended by: A. Revising paragraph (a). B. Adding a new paragraph (e). The revision and addition read as follows: § 300.600 State monitoring and enforcement. (a) The State must— (1) Monitor the implementation of this part; (2) Make determinations annually about the performance of each LEA using the categories in § 300.603(b)(1); (3) Enforce this part, consistent with § 300.604, using appropriate enforcement mechanisms, which must include, if applicable, the enforcement mechanisms identified in § 300.604(a)(1) (technical assistance), (a)(3) (conditions on funding of an LEA), (b)(2)(i) (a corrective action plan or improvement plan), (b)(2)(v) (withholding funds, in whole or in part, by the SEA), and (c)(2) (withholding funds, in whole or in part, by the SEA); and (4) Report annually on the performance of the State and of each LEA under this part, as provided in § 300.602(b)(1)(A) and (b)(2). * * * * * (e) In exercising its monitoring responsibilities under paragraph (d) of this section, the State must ensure that when it identifies noncompliance with the requirements of this part by LEAs, the noncompliance is corrected as soon as possible, and in no case later than one year after the State’s identification. * * * * * 7. Section 300.602(b)(1)(i) is revised to read as follows: § 300.602 State use of targets and reporting. * * * * * (b) Public reporting and privacy. (1) Public report. (i) Subject to paragraph (b)(1)(ii) of this section, the State must— (A) Report annually to the public on the performance of each LEA located in the State on the targets in the State’s performance plan no later than 60 days following the State’s submission of its annual performance report to the Secretary under paragraph (b)(2) of this section; and E:\FR\FM\13MYP2.SGM 13MYP2 27700 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules (B) Make each of the following items available through public means: the State’s performance plan, under § 300.601(a); annual performance reports, under paragraph (b)(2) of this section; and the State’s annual reports on the performance of each LEA located in the State, under paragraph (b)(1)(i)(A) of this section. In doing so, the State must, at a minimum, post the plan and reports on the State’s Web site, and distribute the plan and reports to the media and through public agencies. * * * * * 8. Section 300.606 is revised to read as follows: § 300.606 Public attention. Whenever a State receives notice that the Secretary is proposing to take or is taking an enforcement action pursuant to § 300.604, the State must, by means of a public notice, take such actions as may be necessary to notify the public within the State of the pendency of an action pursuant to § 300.604, including, at a minimum, by posting the notice on the State’s Web site and distributing the notice to the media and through public agencies. (Authority: 20 U.S.C. 1416(e)(7)) 9. Section 300.705 is amended by: A. Revising paragraph (a). B. In paragraph (b)(2)(ii), removing the word ‘‘and’’ at the end of the paragraph. C. In paragraph (b)(2)(iii), removing the punctuation ‘‘.’’ and inserting in its place the words ‘‘; and’’. D. Adding a new paragraph (b)(2)(iv). E. Revising paragraph (c). The revisions and addition read as follows: rwilkins on PROD1PC63 with PROPOSALS2 § 300.705 Subgrants to LEAs. (a) Subgrants required. Each State that receives a grant under section 611 of the Act for any fiscal year must distribute any funds the State does not reserve under § 300.704 to LEAs (including public charter schools that operate as LEAs) in the State that have established their eligibility under section 613 of the Act for use in accordance with Part B of the Act. Effective with funds that become available on the first July 1 following the effective date of this regulation each State must distribute funds to eligible LEAs, including public charter schools that operate as LEAs, even if the LEA is not serving any children with disabilities. (b) * * * (2) * * * (iv) If an LEA received a base payment of zero in its first year of operation, the SEA must adjust the base payment for the first fiscal year after the first annual VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 child count in which the LEA reports that it is serving any children with disabilities. The State must divide the base allocation determined under paragraph (b)(1) of this section for the LEAs that would have been responsible for serving children with disabilities now being served by the LEA, among the LEA and affected LEAs based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21 currently provided special education by each of the LEAs. This requirement takes effect with funds that become available on the first July 1 following the effective date of this regulation. * * * * * (c) Reallocation of LEA funds. (1) If an SEA determines that an LEA is adequately providing FAPE to all children with disabilities residing in the area served by that agency with State and local funds, the SEA may reallocate any portion of the funds under this part that are not needed by that LEA to provide FAPE, to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.704. (2) After an SEA distributes funds under this part to an eligible LEA that is not serving any children with disabilities, as provided in paragraph (a) of this section, the SEA must determine, within a reasonable period of time prior to the end of the carryover period in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.704. * * * * * 10. Section 300.815 is revised to read as follows: § 300.815 Subgrants to LEAs. Each State that receives a grant under section 619 of the Act for any fiscal year must distribute all of the grant funds the State does not reserve under § 300.812 to LEAs (including public charter PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 schools that operate as LEAs) in the State that have established their eligibility under section 613 of the Act. Effective with funds that become available on the first July 1 following the effective date of this regulation, each State must distribute funds to eligible LEAs that are responsible for providing education to children aged three through five years, including public charter schools that operate as LEAs, even if the LEA is not serving any preschool children with disabilities. (Authority: 20 U.S.C. 1419(g)(1)) 11. Section 300.816 is amended by: A. In paragraph (b)(2), removing the word ‘‘and’’. B. In paragraph (b)(3), removing the punctuation ‘‘.’’ and adding, in its place, the words ‘‘; and’’. C Adding a new paragraph (b)(4) to read as follows: § 300.816 Allocations to LEAs. * * * * * (b) * * * (4) If an LEA received a base payment of zero in its first year of operation, the SEA must adjust the base payment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities aged three through five years. The State must divide the base allocation determined under paragraph (a) of this section for the LEAs that would have been responsible for serving children with disabilities aged three through five years now being served by the LEA, among the LEA and affected LEAs based on the relative numbers of children with disabilities aged three through five years currently provided special education by each of the LEAs. This requirement takes effect with funds that become available on the first July 1 following the effective date of this regulation. * * * * * 12. Section 300.817 is revised to read as follows: § 300.817 Reallocation of LEA funds. (a) If an SEA determines that an LEA is adequately providing FAPE to all children with disabilities aged three through five years residing in the area served by the LEA with State and local funds, the SEA may reallocate any portion of the funds under section 619 of the Act that are not needed by that LEA to provide FAPE, to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities aged three through five years residing in the areas served by those other LEAs. The SEA may also retain those funds for E:\FR\FM\13MYP2.SGM 13MYP2 Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS2 use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.812. (b) After an SEA distributes section 619 funds to an eligible LEA that is not serving any children with disabilities aged three through five years, as provided in § 300.815, the SEA must determine, within a reasonable period of VerDate Aug<31>2005 17:01 May 12, 2008 Jkt 214001 time prior to the end of the carryover period in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities aged three through five years residing in the areas served by those other LEAs. PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 27701 The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.812. (Authority: 20 U.S.C. 1419(g)(2)) [FR Doc. E8–10522 Filed 5–12–08; 8:45 am] BILLING CODE 4000–01–P E:\FR\FM\13MYP2.SGM 13MYP2

Agencies

[Federal Register Volume 73, Number 93 (Tuesday, May 13, 2008)]
[Proposed Rules]
[Pages 27690-27701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10522]



[[Page 27689]]

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Part III





Department of Education





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34 CFR Part 300



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

Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Proposed 
Rules

[[Page 27690]]


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DEPARTMENT OF EDUCATION

34 CFR Part 300

RIN 1820-AB60
[Docket ID ED-2008-OSERS-0005]


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: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Secretary proposes to amend the regulations in 34 CFR part 
300 governing the Assistance to States for the Education of Children 
with Disabilities Program and Preschool Grants for Children with 
Disabilities Program, as published in the Federal Register on August 
14, 2006, and seeks public comment on the proposed amendments that we 
have determined are necessary for effective implementation and 
administration of these programs. The proposed regulations were not 
included in the notice of proposed rulemaking published in the Federal 
Register on June 21, 2005 to implement changes made to the Individuals 
with Disabilities Education Act (IDEA or Act), as amended by the 
Individuals with Disabilities Education Improvement Act of 2004, and, 
thus, have not previously been available for public comment.

DATES: We must receive your comments on or before July 28, 2008.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
    Federal eRulemaking Portal: Go to http://www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket is available on the site 
under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about these proposed regulations, address 
them to Tracy R. Justesen, U.S. Department of Education, 400 Maryland 
Avenue, SW., Room 5107, Potomac Center Plaza, Washington, DC 20202-
2600.

    Privacy Note: The Department's policy for comments received from 
members of the public (including those comments submitted by mail, 
commercial delivery, or hand delivery) is to make these submissions 
available for public viewing on the Federal eRulemaking Portal at 
http://www.regulations.gov. All submissions will be posted to the 
Federal eRulemaking Portal without change, including personal 
identifiers and contact information.


FOR FURTHER INFORMATION CONTACT: Tracy R. Justesen, U.S. Department of 
Education, 400 Maryland Avenue, SW., Room 5107, Potomac Center Plaza, 
Washington, DC 20202-2600. Telephone: (202) 245-7605.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (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 the 
programs.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You also may inspect the comments, in person, in Room 5104, Potomac 
Center Plaza, 550 12th Street, SW., Washington, DC, between the hours 
of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each 
week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Background

    On December 3, 2004, the Individuals with Disabilities Education 
Improvement Act of 2004 was enacted into law as Pub L. 108-446, and 
made significant changes to the IDEA. On June 21, 2005, the Secretary 
published a notice of proposed rulemaking in the Federal Register (70 
FR 35782) (June 21, 2005 NPRM) to amend the regulations governing the 
Assistance to States for the Education of Children with Disabilities 
Program (Part 300), the Preschool Grants for Children with Disabilities 
Program (Part 301), and Service Obligations under Special Education 
Personnel Development to Improve Services and Results for Children with 
Disabilities (Part 304).
    Final regulations for Part 304--Special Education-Personnel 
Development to Improve Services and Results for Children with 
Disabilities were published in the Federal Register on June 5, 2006 (71 
FR 32396), and became effective July 5, 2006.
    On August 14, 2006, the Secretary published final regulations in 
the Federal Register (71 FR 46540) that addressed more than 5,500 
public comments on Parts 300 and 301 that were received in response to 
the June 21, 2005 NPRM. With the issuance of those final regulations, 
Part 301 was removed and the regulations implementing the Preschool 
Grants for Children with Disabilities Program were included under 
subpart H of the final regulations for Part 300. The final regulations 
became effective October 13, 2006.
    In developing final regulations for the Assistance to States for 
the Education of Children with Disabilities Program, we identified 
certain issues for which additional regulatory changes might be 
necessary. These issues, which we address in this NPRM, are: (1) 
Parental revocation of consent after consenting to the initial 
provision of services; (2) a State's or local educational agency's 
(LEA's) obligation to make positive efforts to employ qualified 
individuals

[[Page 27691]]

with disabilities; (3) representation of parents by non-attorneys in 
due process hearings; (4) State monitoring, technical assistance, and 
enforcement of the Part B program; and (5) the allocation of funds, 
under sections 611 and 619 of the Act, to LEAs that are not serving any 
children with disabilities. This NPRM also proposes minor modifications 
to the consent provisions to correct an inadvertent omission.

Significant Proposed Regulations

    We discuss issues according to subject, with appropriate sections 
of the proposed regulations indicated.

Parental Revocation of Consent for Special Education Services 
(Sec. Sec.  300.9 and 300.300)

    We propose to amend Sec. Sec.  300.9 and 300.300 (71 FR 46757, 
46783-46784) to permit parents to unilaterally withdraw their children 
from further receipt of special education and related services by 
revoking their consent for the continued provision of special education 
and related services to their children. Under the proposed regulation, 
a public agency would not be able, through mediation or a due process 
hearing, to challenge the parent's decision or seek a ruling that 
special education and related services must continue to be provided to 
the child.
    Under section 614(a)(1)(D)(i)(II) of the Act, agencies responsible 
for making a free appropriate public education (FAPE) available to a 
child with a disability under Part B of the Act must seek to obtain 
informed consent from the child's parent before initiating the 
provision of special education and related services to the child. 
Section 614(a)(1)(D)(ii)(II) further requires that, if a parent refuses 
to provide such consent, the LEA shall not require the provision of 
those services to the child by utilizing the due process procedures 
under section 615 of the Act. In these circumstances, under section 
614(a)(1)(D)(ii)(III) of the Act, the LEA is not considered to be in 
violation of its obligation to provide FAPE and is not required to 
convene an individualized education program (IEP) Team meeting or 
develop an IEP.
    The regulations in Sec.  300.300(b) (71 FR 46784) interpret the 
statutory provision in section 614(a)(1)(D)(i)(II) of the Act to 
require consent prior to the initial provision of special education and 
related services; i.e., before a child with a disability receives 
special education and related services for the first time. However, the 
regulations do not specifically address whether parents, by revoking 
their consent, can require a public agency to cease providing their 
child special education and related services after the parents already 
have consented to the initial provision of special education and 
related services and the child has begun receiving those services.
    It has been our longstanding interpretation of the current 
regulations in Sec.  300.300(b), and similar regulations that were in 
effect prior to October 13, 2006, that, although parents have the right 
to determine whether their child would initially receive special 
education and related services by providing or withholding parental 
consent for the initial provision of services, once the child receives 
special education and related services, parents cannot unilaterally 
withdraw their child from receipt of special education and related 
services. If parents no longer want their child to receive those 
services, yet the public agency believes the services are necessary to 
ensure that the child continues to receive FAPE, our view was that the 
public agency had an obligation to continue to provide the services, or 
if under State law the parent had the right to consent to continued 
services, to take the necessary steps, which could include using 
informal means to reach agreement with the parent, as well as 
requesting a due process hearing, to seek to override the parent's 
refusal to consent to the continuation of those services.
    The issue of whether parents have the right to unilaterally 
withdraw their child from continued receipt of special education and 
related services was not included in the June 21, 2005 NPRM. The 
Department, however, received several comments on the consent 
provisions in the proposed regulations in Sec. Sec.  300.9 and 
300.300(b), including comments requesting that we address situations in 
which a child's parents want to discontinue special education and 
related services because they believe that their child no longer needs 
those services. As we indicated in the Analysis of Comments and Changes 
section of the final regulations (71 FR 46551, 46633), these commenters 
stated that public agencies should not be allowed to use the Part B 
procedural safeguards to continue special education and related 
services if a parent revokes consent. In response, we indicated that we 
would solicit comment on this suggested change in a subsequent notice 
of proposed rulemaking.
    Therefore, we propose to amend the regulations to provide that 
parents may unilaterally withdraw their child from continued receipt of 
special education and related services and that public agencies may not 
take steps to override a parent's refusal to consent to further 
services. Just as, under section 614(a)(1)(D)(ii)(II), parents have the 
authority to consent to the initial provision of special education and 
related services, we believe that parents also should have the 
authority to revoke that consent, thereby ending the provision of 
special education and related services to their child. This change is 
also consistent with the IDEA's emphasis on the role of parents in 
protecting their child's rights and the Department's goal of enhancing 
parent involvement and choice in their child's education.
    These proposed regulations would not require public agencies, once 
they have obtained parental consent for the initial provision of 
special education and related services, to obtain parental consent to 
provide special education and related services at any subsequent time, 
such as for the provision of services under a subsequent IEP. We 
believe that including this type of additional consent requirement 
would be unduly burdensome for public agencies, and an unwarranted 
intrusion on State and local control of education. States, however, 
have the discretion to establish additional consent requirements, 
consistent with the provisions in Sec.  300.300(d) (71 FR 46784).
    The proposed amendment to Sec.  300.300(b)(3) would combine the 
provisions in current Sec.  300.300(b)(3) and (b)(4) (71 FR 46784) 
relating to parental consent for the provision of initial services. 
Section 300.300(b)(3) currently provides that a public agency may not 
use the procedures in subpart E of the regulations (Procedural 
Safeguards and Due Process Procedures) to obtain agreement or a ruling 
that services may be provided if the parent of a child fails to respond 
or refuses to consent to the initial provision of services. Section 
300.300(b)(4) currently provides that a public agency will not be 
considered in violation of its obligation to make FAPE available and is 
not required to convene an IEP Team meeting or develop an IEP if a 
parent refuses or fails to consent to the initial provision of 
services. This proposed change would simplify the regulation by 
eliminating the slight differences in the introductory material in the 
current provisions and would clarify that the provision would apply to 
situations in which a parent refuses or fails to consent to the initial 
provision of special education and related services.
    We propose to add a new Sec.  300.300(b)(4) to provide that if, at 
any time subsequent to the initial provision of special education and 
related

[[Page 27692]]

services, the parent of a child revokes consent for the provision of 
special education and related services, a public agency--(a) may not 
continue to provide special education and related services to the 
child; (b) may not use the procedures in subpart E of the regulations 
(including the mediation procedures under Sec.  300.506 or the due 
process procedures under Sec. Sec.  300.507 through 300.516) to obtain 
agreement or a ruling that services may be provided; (c) will not be 
considered in violation of its obligation to make FAPE available to the 
child for failure to provide the child with further special education 
and related services; and (d) is not required to convene an IEP Team 
meeting or develop an IEP, under Sec. Sec.  300.320 through 300.324. 
Therefore, this proposed regulation would--(a) clarify that parents 
have the right to withdraw their child from receipt of special 
education and related services without being subjected to mediation or 
a due process hearing requested by the public agency; and (b) protect 
the public agency from any subsequent action by the parents based on 
the public agency's termination of special education services following 
the parents' revocation of consent. Of course, if a parent subsequently 
provides consent for services, a public agency would again have an 
obligation to make FAPE available to the child, including developing 
and implementing an IEP, as appropriate. We also note that under 
current Sec.  300.534(c)(1)(ii) a public agency is not deemed to have 
knowledge that a child is a child with a disability for purposes of 
disciplinary actions if the parent of the child has refused services 
under the IDEA; for example, if a parent revokes consent for the 
provision of special education services and the child subsequently 
faces a disciplinary action, the school district would be able to 
discipline the child in the same manner as a nondisabled child. This 
provision would apply to situations in which a parent has revoked 
consent for the receipt of special education and related services.
    We also propose to revise Sec.  300.300(d)(2) and (d)(3) (71 FR 
46784) to correct an inadvertent omission. Section 300.300(d)(2) (71 FR 
46784) currently provides that States may require parental consent for 
other services and activities under Part 300 in addition to the consent 
requirements in Sec.  300.300(a) (71 FR 46783), which addresses 
parental consent for an initial evaluation. Section 300.300(d)(3) (71 
FR 46784) currently provides that a public agency may not use a 
parent's refusal to consent to one service or activity under Sec.  
300.300(a) or (d)(2) to deny the parent or child other services and 
activities. To be consistent with comparable provisions in effect 
before the final regulations published in 2006, Sec.  300.300(d)(2) 
should have included a reference to the parental consent provisions in 
Sec.  300.300(a), (b), and (c), rather than just Sec.  300.300(a), and 
Sec.  300.300(d)(3) should have referred to Sec.  300.300(a), (b), (c), 
or (d)(2), rather than just Sec.  300.300(a) or (d)(2). Therefore, we 
propose to revise Sec.  300.300(d)(2) to refer to paragraphs (a), (b), 
and (c) of Sec.  300.300 rather than just paragraph (a). We propose to 
revise Sec.  300.300(d)(3) to refer to paragraphs (a), (b), (c), or 
(d)(2) of Sec.  300.300, rather than just paragraphs (a) or (d)(2).
    We would add a new Sec.  300.9(c)(3) to clarify that, if a parent 
revokes consent for the child's receipt of special education and 
related services after the child is initially provided special 
education and related services, the public agency would not be required 
to amend the child's education records to remove any references to the 
child's receipt of special education and related services because of 
the parent's revocation of consent. We believe that this change is 
necessary to clarify that the child's education records would not be 
required to be changed for the period prior to the parent's revocation 
of consent for special education and related services. Schools need the 
ability to keep accurate records of a child's school experience, 
including whether the child received special education and related 
services.

States' Sovereign Immunity and Positive Efforts To Employ and Advance 
Qualified Individuals With Disabilities (Sec.  300.177)

    We propose to amend Sec.  300.177, regarding States' sovereign 
immunity, by adding a new provision relating to States' and LEAs' 
obligations to make positive efforts to employ and advance qualified 
individuals with disabilities. Specifically, we are proposing to 
redesignate current Sec.  300.177(a) through (c), regarding States' 
sovereign immunity, as proposed Sec.  300.177(a)(1) through (a)(3), and 
add a new paragraph (b) to provide that any recipient of assistance 
under Part B of the Act must make positive efforts to employ, and 
advance in employment, qualified individuals with disabilities in 
programs assisted under Part B of the Act, such as special education 
programs of an SEA or LEA or the State-wide assessment program of an 
SEA that is using IDEA funds to develop assessments for children with 
disabilities. This paragraph would reflect the provisions in section 
606 of the Act, which provides that the Secretary will ensure that each 
grant recipient under the IDEA makes positive efforts to employ, and 
advance in employment, qualified individuals with disabilities in 
programs assisted under the IDEA.

Representation by Non-Attorneys in Due Process Hearings (Sec.  300.512)

    Section 615(h)(1) of the Act provides that any party to a hearing 
conducted under Part B of the IDEA has the right to be accompanied and 
advised by counsel, and by individuals with special knowledge or 
training with respect to the problems of children with disabilities. 
This statutory provision is reflected in Sec.  300.512(a)(1) (71 FR 
46795).
    Both the Act and its implementing regulations are silent on the 
issue of whether individuals who are not attorneys, but have special 
knowledge or expertise regarding the problems of children with 
disabilities, may represent parties at IDEA due process hearings. 
However, as indicated in an April 8, 1981 letter from Theodore Sky, 
Acting General Counsel of the Department of Education, to the Honorable 
Frank B. Brouillet, the Department previously interpreted section 
615(h) of the Act and implementing regulations to mean that attorneys 
and lay advocates may perform the same functions at due process 
hearings.
    One commenter, in responding to the June 21, 2005 NPRM, requested 
that the Department amend the regulations to indicate that a parent has 
the right to be represented by a non-attorney at an IDEA due process 
hearing. The Department believes that some clarification is warranted 
because the IDEA is silent regarding the representational role of non-
attorneys at IDEA due process hearings.
    In the absence of statutory or regulatory language, at least one 
court concluded that State laws regulating the practice of law and 
prohibiting representation by lay advocates in due process hearings do 
not conflict with the IDEA. In re Arons, 756 A.2d 867 (Del. 2000), 
cert. denied sub nom, Arons v. Office of Disciplinary Counsel, 532 U.S. 
1065 (2001). Given that the language of the Act and regulations is not 
clear, we are persuaded now that this position best reflects an 
appropriate regard for the principle of Federal-State comity. We 
believe that the regulations should respect the interests that States 
have in regulating the practice of law so as to protect the public and 
ensure the appropriate administration of justice.

[[Page 27693]]

Therefore, we propose to change the Department's earlier interpretation 
of section 615(h) of the Act and the regulations regarding 
representation of parents by non-attorneys in due process hearings, and 
amend the regulation in Sec.  300.512(a)(1) (71 FR 46795) accordingly.
    Specifically, Sec.  300.512(a)(1) (71 FR 46795), concerning a 
parent's right to be accompanied and advised by counsel and by other 
individuals with special knowledge or training with respect to the 
problems of children with disabilities, would be amended to specify 
that a parent's right to be represented by non-attorneys at due process 
hearings is determined by State law. We believe alerting parents that 
State laws affect whether they can be represented in a due process 
hearing by a non-attorney advocate should reduce future litigation of 
this issue. The proposed change also is consistent with the 
Department's general position to provide flexibility to States where 
the IDEA is silent or where State law does not conflict with the Act.
    Because this proposed change would directly reverse a prior 
interpretation that the Department authoritatively adopted and 
consistently followed, and the June 21, 2005 NPRM did not indicate that 
we were considering any change, we are now proposing in this NPRM, that 
a parent's right to be represented by non-attorneys at a due process 
hearing must be determined under State law.
    Note that this change would not prevent parents from representing 
themselves in due process hearings or during court proceedings under 
the IDEA. In Winkelman v. Parma City School District, 550 U.S. ------, 
127 S. Ct. 1994 (2007), the Supreme Court held that parents can 
prosecute IDEA claims on their own behalf without being represented by 
an attorney. The proposed regulatory change would not affect this 
holding.

State Monitoring, Technical Assistance, and Enforcement (Sec. Sec.  
300.600, 300.602, and 300.606)

1. State Determinations About LEA Performance and State Enforcement
    Section 616(a)(1)(C) of the Act requires States to monitor the 
implementation of Part B of the Act by LEAs, and to enforce Part B of 
the Act in accordance with the monitoring priorities and enforcement 
mechanisms set forth in section 616(a)(3) and (e) of the Act. Section 
300.600(a) (71 FR 46800) implements section 616(a)(1) of the Act, and 
requires States to monitor implementation of Part B of the Act by LEAs, 
enforce Part B of the Act in accordance with the statutory enforcement 
mechanisms that are appropriate for States to apply to LEAs, and 
annually report on performance under Part B of the Act.
    Section 616(e) of the Act makes clear that the Secretary's 
enforcement actions are based, in large part, on annual determinations 
about a State's performance, as provided in section 616(d) of the Act. 
Based on the language in section 616(a)(1)(C)(ii) of the Act, which 
requires States to enforce Part B of the Act consistent with section 
616(e), States also have an obligation to make annual determinations 
about each LEA's performance using the same categories, under section 
616(d) of the Act, that the Secretary applies to States. We believe 
that Sec.  300.600(a) (71 FR 46800), however, should address more 
clearly States' responsibilities to make annual determinations about 
each LEA's performance. Therefore, we propose to amend Sec.  300.600(a) 
(71 FR 46800) to clarify that a State must annually review and make 
determinations about the performance of each LEA in the State, 
consistent with the Secretary's responsibility, under section 616(d) of 
the Act, to annually review and make determinations concerning the 
performance of each State. Specifically, we propose adding language to 
Sec.  300.600(a) to clarify that States must use the categories listed 
in Sec.  300.603(b)(1) (71 FR 46801) to make annual determinations 
about the performance of each LEA.
    We also believe that it would be useful to clarify the specific 
enforcement mechanisms that a State must use, consistent with section 
616(a)(1)(C)(ii) and (e) of the Act. The current regulations in Sec.  
300.600(a) use regulatory citations to refer to the enforcement 
mechanisms in Sec.  300.604 that States must use. We propose to revise 
Sec.  300.600(a) (71 FR 46800) to identify specifically the enforcement 
mechanisms associated with each relevant regulatory citation. 
Therefore, we propose to reorganize Sec.  300.600(a) for clarity by 
indicating that the State must: (a) Under proposed paragraph (a)(1), 
monitor the implementation of Part B of the IDEA; (b) under proposed 
paragraph (a)(2), make annual determinations about the performance of 
each LEA using the categories in Sec.  300.603(b)(1); (c) under 
proposed paragraph (a)(3), enforce the requirements of the IDEA, 
consistent with Sec.  300.604, by using applicable enforcement 
mechanisms in Sec.  300.604(a)(1) (technical assistance), (a)(3) 
(conditions on funding of an LEA's grant), (b)(2)(i) (corrective action 
plan or improvement plan), (b)(2)(v) (withholding funds, in whole or in 
part, by the SEA), and (c)(2) (withholding funds, in whole or in part, 
by the SEA); and (d) under proposed paragraph (a)(4), report annually 
to the public on the performance of the State and each LEA under Part B 
of the Act, as provided in Sec.  300.602(b)(1)(A) and (b)(2).
    Proposed Sec.  300.600(e) would clarify that a State, in exercising 
its monitoring responsibilities under Sec.  300.600(d), must ensure 
that when it identifies noncompliance with the requirements of Part B 
of the Act by its LEAs, the noncompliance is corrected as soon as 
possible, and in no case, later than one year after the State's 
identification.
    We propose to add Sec.  300.600(e) because, based on our monitoring 
activities, we have determined that correction of noncompliance does 
not always occur in a timely manner. Noncompliance must be corrected in 
a timely manner to ensure that children with disabilities receive 
appropriate services and to ensure proper and effective implementation 
of the requirements of Part B of the IDEA. Throughout our 30 years of 
monitoring experience we have observed that, in most cases, when a 
State makes a good faith effort, the needed corrective actions can be 
accomplished and their effectiveness verified within one year. It is 
important to note that timely correction of noncompliance is critical 
to ensuring that children with disabilities receive a free appropriate 
public education. Allowing noncompliance to continue can negatively 
impact the education of great numbers of children with disabilities.
    Correction of noncompliance means that a State requires a public 
agency to revise any noncompliant policies, procedures and practices, 
and verifies, through a follow-up review of documentation or 
interviews, or both, that the noncompliant policies, procedures, and 
practices are corrected. We believe that States must ensure correction 
as soon as possible and that one year is a reasonable timeframe for an 
LEA to correct noncompliant policies, procedures, and practices and for 
the State to verify that the LEA is complying with the requirements 
under the IDEA. For example, if an SEA determines that an LEA is not in 
compliance with the requirement to make placement decisions consistent 
with the least restrictive environment requirements of the Act, we 
would expect the SEA to require corrective actions and verify 
correction by determining that the LEA corrected any noncompliant 
policies, procedures, or practices, and that placement teams,

[[Page 27694]]

subsequent to those changes, were making placement decisions consistent 
with the requirements of the Act.
2. Timeframe for Public Reporting About LEA Performance
    Section 300.602(b)(1)(i)(A) (71 FR 46801) implements section 
616(b)(2)(C)(ii)(I) of the Act and requires a State to annually report 
to the public on the performance of each LEA in the State on the 
targets in the State's performance plan. The Act is silent, however, on 
when a State must provide this report to the public and the June 21, 
2005 NPRM did not address this issue.
    Following the publication of the final regulations on August 14, 
2006 (71 FR 46540), the Department received many informal inquiries 
from SEA personnel and other interested parties regarding the timeframe 
for reporting information to the public about LEAs' performance 
relative to its State's targets. To clarify States' obligations, we are 
proposing in Sec.  300.602(b)(2) to require each State to report to the 
public on the performance of each LEA located in the State on the 
targets in the State's performance plan no later than 60 days following 
a State's submission of its annual performance report (APR) to the 
Secretary under Sec.  300.602(b). We believe this timeframe is 
reasonable, and would not be burdensome to States. This timeframe 
should ensure that each State provides timely information to the 
public.
3. Additional Information To Be Made Available to the Public
    Section 300.602(b)(1)(i)(B) (71 FR 46801) implements section 
616(b)(2)(C)(ii)(I) of the Act and requires each State to make its 
performance plan available through public means, including by posting 
it on the State's Web site and distributing it to the media and through 
public agencies. The Department received inquiries regarding whether 
other materials, such as a State's APRs to the Secretary and the annual 
report on the performance of each LEA on the targets in the State's 
performance plan, must be made available through the same public means, 
so that the public has easy access to State and LEA performance 
information. We believe that public accountability is served by 
requiring States to make these documents available to the public by the 
same means as their performance plans, and this requirement should not 
impose significant burden on States, because the documents are already 
required and could easily be made available to the public.
    Public reporting of each LEA's performance on the targets in the 
State's performance plan is currently required by Sec.  
300.602(b)(1)(i)(A) (71 FR 46801); however, the means by which such 
public reporting may be completed are not specified. Additionally, a 
State's APRs are public documents that would otherwise be available to 
the public on request under State freedom of information laws. 
Therefore, we propose to amend Sec.  300.602(b)(1)(i)(B) to require 
States to make each of the following documents available through public 
means (including, posting on the SEA's Web site, distributing to the 
media, and distributing through public agencies): (a) The State's 
performance plan, under Sec.  300.601(a); (b) the State's APRs, under 
Sec.  300.602(b)(2); and (c) the State's annual reports on the 
performance of each LEA located in the State, under Sec.  
300.602(b)(1)(i)(A). Additionally, in the interest of transparency and 
public accountability, we strongly encourage States to report to the 
public on any enforcement actions taken under Sec.  300.604.
4. Notifying the Public of Federal Enforcement Actions
    Section 300.606 (71 FR 46802) implements section 616(e)(7) of the 
Act, which requires any State that has received notice of a 
determination under section 616(d)(2) of the Act to take steps to bring 
the pendency of an enforcement action, under section 616(e) of the Act, 
to the attention of the public within that State. However, Sec.  
300.606 is unclear about when States are required to notify the public 
of enforcement actions. There is confusion in States because of this 
lack of clarity. Some States may make public the Department's 
determinations, enforcement actions, both determinations and 
enforcement actions, or neither determinations nor enforcement actions. 
This clarification would eliminate the confusion by delineating the 
public notification requirements. Therefore, we propose to clarify the 
circumstances under which public notice is required.
    Specifically, we propose to amend Sec.  300.606 to require States 
to provide public notice of any enforcement action taken by the 
Secretary pursuant to Sec.  300.604. This change would clarify that 
States do not have to provide public notice of the Secretary's annual 
determinations, but must provide public notice when the Secretary takes 
an enforcement action as a result of those determinations. We believe 
that this clarification will minimize the States' reporting burden 
while providing the public with appropriate notice of the actions taken 
by the Secretary as a result of the determinations required by section 
616(d) of the Act and Sec.  300.603. Additionally, we propose to amend 
Sec.  300.606 to specify that each State's public notice of enforcement 
actions must include, posting the notice on the State's Web site and 
distributing the notice to the media and through public agencies.

Allocation of Funds Under Section 611 of the IDEA to LEAs That Are Not 
Serving Any Children With Disabilities (Sec.  300.705)

1. Subgrants to LEAs
    We propose to add language to Sec.  300.705(a) (71 FR 46808), 
regarding subgrants to LEAs, to clarify that States are required to 
make a subgrant under section 611(f) of the Act to eligible LEAs, 
including public charter schools that operate as LEAs, even if an LEA 
is not serving any children with disabilities. This requirement would 
take effect with funds that become available on the first July 1 
following the effective date of the final regulations.
    The Department's Office of Inspector General (OIG) indicated, in an 
October 26, 2004 final audit report (2004 OIG Report), that the 
regulations and guidance implementing Part B of the Act in effect at 
that time did not address the application of the funding formula under 
section 611 of the Act for a charter school established as an LEA that 
does not have a child with a disability enrolled during the school's 
first year of operation. See http://www.ed.gov/about/offices/list/oig/
auditreports/a09e0014.pdf. The OIG recommended that we consider 
providing guidance on this issue. Given the OIG's recommendation and 
because the Act and its implementing regulations are silent on this 
issue, we believe that it is necessary to regulate to ensure that all 
States treat LEAs, including public charter schools that operate as 
LEAs, in the same manner when making a subgrant under section 611(f) of 
the Act to LEAs, including those LEAs that are not serving any children 
with disabilities.
    Under section 611(f)(1) of the Act, each State must provide 
subgrants to LEAs, including public charter schools that operate as 
LEAs in the State, that have established their eligibility under 
section 613 of the Act for use in accordance with Part B of the Act. 
Under section 613(a) of the Act, an LEA is eligible for assistance 
under Part B of the Act for a fiscal year if the LEA submits a plan 
that provides assurances to the SEA that the LEA meets each of the 
conditions in section 613(a) of the Act. There is no requirement in 
section

[[Page 27695]]

613(a) of the Act that an LEA must be serving children with 
disabilities for an LEA to be eligible for a subgrant. We believe that 
requiring States to make a subgrant to all eligible LEAs, including 
public charter schools that operate as LEAs, would ensure that LEAs 
have Part B funds available if they are needed to conduct child find 
activities or to serve children with disabilities who subsequently 
enroll or are identified during the year. The payment made to an LEA, 
including a public charter school that operates as an LEA, that is not 
serving any children with disabilities, would be based on enrollment 
and poverty data and any base payment to which the LEA is entitled, in 
accordance with the statutory formula in section 611(f)(2) of the Act.
    Under the current regulations, a previously-existing LEA not 
serving any children with disabilities, is entitled to the base payment 
it received in the previous fiscal year. A newly-created LEA, including 
a new public charter school LEA, is entitled to a base payment that is 
calculated by dividing the base allocation of LEAs that would have been 
responsible for serving children with disabilities now being served by 
the new LEA, among the new LEA and affected LEAs, based on the relative 
numbers of children with disabilities currently provided special 
education by each of the LEAs. See Sec.  300.705(b)(2)(i) (71 FR 46808-
46809). For a newly-created LEA that is not a public charter school 
LEA, a State has some flexibility in determining the number of children 
with disabilities currently provided special education by the newly-
created LEA. For example, a State may choose to determine the base 
payment of a newly-created LEA based on the location of children with 
disabilities who were included in a previous count or a new count of 
children served that year. If the SEA determines that the newly-created 
LEA is not serving any children with disabilities, based on its count, 
the newly-created LEA would be entitled to a base payment of zero in 
its first year of operation.
    In determining the base payment to which a new public charter 
school LEA would be entitled, States must comply with the requirements 
in section 5206 of the ESEA and its implementing regulations in subpart 
H of 34 CFR part 76 of the Education Department General Administrative 
Regulations (EDGAR). These requirements apply to a public charter 
school LEA that opens or significantly expands its enrollment. 
Specifically under 34 CFR 76.791(b), when making a subgrant to a new 
public charter school LEA, a State cannot rely on enrollment or 
eligibility data from a prior year when calculating the subgrant of a 
public charter school LEA opening for the first time. A State may, but 
is not required to, allocate funds to, or reserve funds for, an 
eligible new public charter school LEA based on reasonable estimates of 
projected enrollment at the public charter school LEA, in accordance 
with 34 CFR 76.789(b)(2). Once the public charter school LEA is open, 
the public charter school LEA must provide actual enrollment and 
eligibility data to the SEA at a time the SEA may reasonably require in 
accordance with 34 CFR 76.788(b)(2)(i). A State is not required to 
provide funds to a new public charter school LEA until the public 
charter school LEA provides the SEA with the required actual enrollment 
and eligibility data in accordance with 34 CFR 76.788(b)(2)(ii). If the 
SEA allocates funds based on estimated enrollment or eligibility data, 
the SEA must make appropriate adjustments to the amount of funds 
allocated to a new public charter school LEA, as well as to other LEAs, 
based on actual enrollment or eligibility data for the public charter 
school LEA, on or after the date the public charter school LEA first 
opens, in accordance with 34 CFR 76.796. If, on the date the SEA 
reasonably requires the new public charter school LEA to provide actual 
enrollment and eligibility data, which must be on or after the date the 
public charter school LEA opens, the new public charter school LEA is 
not serving any children with disabilities, its base payment in its 
first year of operation would be zero.
    Because we believe it would be burdensome for States to comply with 
the requirement to distribute funds to eligible LEAs not currently 
serving children with disabilities after subgrants have been made for a 
fiscal year, we propose to add language to Sec.  300.705(a) to clarify 
that this requirement would take effect with funds that become 
available on the first July 1 following the effective date of the final 
regulations.
2. Base Payment Adjustments
    The 2004 OIG Report also recommended that the Department consider 
issuing guidance on whether a public charter school LEA that has no 
children with disabilities enrolled in its first year of operation is 
entitled to a base payment adjustment in subsequent years if it enrolls 
children with disabilities. We agree that further clarification is 
necessary and propose to add a new paragraph (iv) to Sec.  
300.705(b)(2) (71 FR 46808-09), regarding base payment adjustments. The 
amended regulations would require that an LEA that received a base 
payment of zero in its first year of operation because it was serving 
no children with disabilities, and that subsequently provides special 
education and related services to children with disabilities, must 
receive a base payment adjustment for the fiscal year after the first 
annual child count in which the LEA reports that it is serving any 
children with disabilities. Under this provision, the State must divide 
the base allocation determined under Sec.  300.705(b)(1) for the LEAs 
that would have been responsible for serving children with disabilities 
now being served by the LEA, among the LEA and affected LEAs, based on 
the relative numbers of children with disabilities ages 3 through 21, 
or ages 6 through 21, currently provided special education by each of 
the LEAs.
    Under this proposed change, an LEA, including a public charter 
school that operates as an LEA, that received a base payment of zero in 
its first year of operation, would be entitled to a base payment 
adjustment for the first fiscal year after the first annual child count 
in which the LEA reports that it is serving any children with 
disabilities. This adjusted base payment would apply to all subsequent 
years, unless the LEA's base payment is adjusted due to one of the 
other circumstances described in Sec.  300.705(b)(2) (71 FR 46808-
46809). Because the current regulations do not require a base payment 
adjustment under these circumstances, and we believe that it would be 
burdensome for States to comply with this requirement after subgrants 
have been made for a fiscal year, we propose to add language to Sec.  
300.705(b)(2)(iv), to clarify that this requirement would take effect 
with funds that become available on the first July 1 following the 
effective date of the final regulations.
3. Reallocation of Funds
    Section 611(f)(3) of the Act and Sec.  300.705(c) (71 FR 46809) 
authorize an SEA to reallocate Part B funds not needed by an LEA, if 
the SEA determines that an LEA is adequately providing FAPE to all 
children with disabilities residing in the area served by that agency, 
with State and local funds. Under these statutory and regulatory 
provisions, States may, but are not required to, reallocate these Part 
B funds. The regulations in current Sec.  300.705(c) do not address 
reallocation of funds from an LEA that does not use its funds because 
it is not serving any children with disabilities.

[[Page 27696]]

    We propose to amend Sec.  300.705(c) (71 FR 46809) to indicate 
that, after an SEA distributes funds under Part B to an eligible LEA 
that is not serving any children with disabilities, as provided in 
proposed Sec.  300.705(a), the SEA must determine, within a reasonable 
period of time prior to the end of the carryover period specified in 34 
CFR 76.709, whether the LEA has obligated the funds. The SEA may, if it 
chooses, reallocate any of those funds not obligated by the LEA to 
other LEAs in the State that are not adequately providing special 
education and related services to all children with disabilities 
residing in the areas served by those other LEAs. The SEA may also 
retain those funds for use at the State level to the extent the State 
has not reserved the maximum amount of funds it is permitted to reserve 
for State-level activities pursuant to Sec.  300.704. Given the fact 
that small amounts of funds distributed late in their period of 
availability to LEAs would be prone to lapse, we are clarifying that 
States may use these funds at the State level, to the extent the State 
has not set aside the maximum amount for State-level activities, in 
order to increase the chance these funds would be well spent. Whether 
funds are reallocated or retained for use at the State-level under 
Sec.  300.705(c), they must be obligated prior to the close of the 
period of availability for those funds. In sum, these proposed 
regulations would help to ensure that the funds under section 611 of 
the Act do not lapse, by making it clear that SEAs may redistribute 
funds that have not been obligated by LEAs that currently are not 
serving any children with disabilities or retain these funds for State-
level activities.

Allocation of Funds Under Section 619 of IDEA to LEAs That Are Not 
Serving Any Children With Disabilities (Sec.  300.815)

1. Subgrants to LEAs
    We propose to add language to Sec.  300.815 (71 FR 46813), 
regarding subgrants to LEAs, to clarify that States are required to 
make a subgrant under section 619(g) of the Act to eligible LEAs, 
including public charter schools that operate as LEAs, that are 
responsible for providing education to children aged three through five 
years (preschool), even if an LEA is not serving any preschool children 
with disabilities. This requirement would take effect with funds that 
become available on the first July 1 following the effective date of 
the final regulations.
    The Department's OIG indicated, in the 2004 OIG Report, that the 
regulations and guidance implementing Part B of the Act in effect at 
that time did not address the application of the funding formula under 
section 619 of the Act for a public charter school established as an 
LEA that does not have a preschool child with a disability enrolled 
during the school's first year of operation. See http://www.ed.gov/
about/offices/list/oig/auditreports/a09e0014.pdf. The OIG recommended 
that we consider providing guidance on this issue. Given the OIG's 
recommendation and because the Act and its implementing regulations are 
silent on this issue, we believe that it is necessary to regulate to 
ensure that all States treat LEAs, including public charter schools 
that operate as LEAs, in the same manner when making a subgrant under 
section 619(g) of the Act to LEAs, including those LEAs that are not 
serving any preschool children with disabilities.
    Under section 619(g)(1) of the Act, each State must provide 
subgrants to LEAs, including public charter schools that operate as 
LEAs in the State, that have established their eligibility under 
section 613 of the Act. Under section 613(a) of the Act, an LEA is 
eligible for assistance under Part B of the Act for a fiscal year if 
the LEA submits a plan that provides assurances to the SEA that the LEA 
meets each of the conditions in section 613(a) of the Act. There is no 
requirement in section 613(a) of the Act that an LEA must be serving 
preschool children with disabilities in order for an LEA to be eligible 
for a subgrant. We believe that requiring States to make a subgrant to 
all eligible LEAs responsible for providing education to preschool 
children, including public charter schools that operate as LEAs, would 
ensure that LEAs have Part B funds available if they are needed to 
conduct child find activities or to serve preschool children with 
disabilities who subsequently enroll or are identified during the year. 
The payment made to an LEA, including a public charter school that 
operates as an LEA, that is not serving any preschool children with 
disabilities, would be based on enrollment and poverty data and any 
base payment to which the LEA is entitled, in accordance with the 
statutory formula in section 619(g) of the Act.
    Under the current regulations, a previously-existing LEA not 
serving any preschool children with disabilities, is entitled to the 
base payment it received in the previous fiscal year. A newly-created 
LEA, including a new public charter school LEA, is entitled to a base 
payment that is calculated by dividing the base allocation of LEAs that 
would have been responsible for serving preschool children with 
disabilities now being served by the new LEA, among the new LEA and 
affected LEAs, based on the relative numbers of preschool children with 
disabilities currently provided special education by each of the LEAs. 
See Sec.  300.816(b)(1) (71 FR 46813). For a newly-created LEA that is 
not a public charter school LEA, a State has some flexibility in 
determining the number of preschool children with disabilities 
currently provided special education by the newly-created LEA. For 
example, a State may choose to determine the base payment of a newly-
created LEA based on the location of preschool children with 
disabilities who were included in a previous count or a new count of 
preschool children served that year. If the SEA determines that the 
newly-created LEA is not serving any preschool children with 
disabilities, based on its count, the newly-created LEA would be 
entitled to a base payment of zero in its first year of operation.
    In determining the base payment to which a new public charter 
school LEA would be entitled, States must comply with the requirements 
in section 5206 of the ESEA and its implementing regulations in subpart 
H of 34 CFR part 76 of EDGAR. These requirements apply to a public 
charter school LEA that opens or significantly expands its enrollment. 
Specifically, under 34 CFR 76.791(b), when making a subgrant to a new 
public charter school LEA, a State cannot rely on enrollment or 
eligibility data from a prior year when calculating the subgrant of a 
public charter school LEA opening for the first time. A State may, but 
is not required to, allocate funds to, or reserve funds for, an 
eligible new public charter school LEA based on reasonable estimates of 
projected enrollment at the public charter school LEA, in accordance 
with 34 CFR 76.789(b)(2). Once the public charter school LEA has 
opened, the public charter school LEA must provide actual enrollment 
and eligibility data to the SEA at a time the SEA may reasonably 
require in accordance with 34 CFR 76.788(b)(2)(i). A State is not 
required to provide funds to a new public charter school LEA until the 
public charter school LEA provides the SEA with the required actual 
enrollment and eligibility data in accordance with 34 CFR 
76.788(b)(2)(ii). If the SEA allocates funds based on estimated 
enrollment or eligibility data, the SEA must make appropriate 
adjustments to the amount of funds allocated to a new public

[[Page 27697]]

charter school LEA, as well as to other LEAs, based on actual 
enrollment or eligibility data for the public charter school LEA, on or 
after the date the public charter school LEA first opens, in accordance 
with 34 CFR 76.796. If, on the date the SEA reasonably requires the new 
public charter school LEA to provide actual enrollment and eligibility 
data, which must be on or after the date the public charter school LEA 
opens, the new public charter school LEA is not serving any preschool 
children with disabilities, its base payment in its first year of 
operation would be zero.
    Because we believe it would be burdensome for States to comply with 
the requirement to distribute funds to eligible LEAs not currently 
serving preschool children with disabilities, after subgrants have been 
made for a fiscal year, we propose to add language to Sec.  300.815 to 
clarify that this requirement would take effect with funds that become 
available on the first July 1 following the effective date of the final 
regulations.
2. Base Payment Adjustments
    The 2004 OIG Report also recommended that the Department consider 
issuing guidance on whether a public charter school LEA that has no 
preschool children with disabilities enrolled in its first year of 
operation is entitled to a base payment adjustment in subsequent years 
if it enrolls preschool children with disabilities. We agree that 
further clarification is necessary and propose to add a new paragraph 
(4) to Sec.  300.816(b) (71 FR 46813), regarding base payment 
adjustments. The amended regulations would require that an LEA that is 
responsible for providing education to preschool children, but that 
received a base payment of zero in its first year of operation because 
it was serving no preschool children with disabilities, and that 
subsequently provides special education and related services to 
preschool children with disabilities, must receive a base payment 
adjustment for the fiscal year after the first annual child count in 
which the LEA reports that it is serving any preschool children with 
disabilities. Under this provision, the State must divide the base 
allocation determined under Sec.  300.816(a) for the LEAs that would 
have been responsible for serving preschool children with disabilities 
now being served by the LEA, among the LEA and affected LEAs, based on 
the relative numbers of preschool children with disabilities currently 
provided special education by each of the LEAs.
    Under this proposed change, an LEA, including a public charter 
school that operates as an LEA, that received a base payment of zero in 
its first year of operation, would be entitled to a base payment 
adjustment for the first fiscal year after the first annual child count 
in which the LEA reports that it is serving any preschool children with 
disabilities. This adjusted base payment would apply to all subsequent 
years, unless the LEA's base payment is adjusted due to one of the 
other circumstances described in Sec.  300.816(b) (71 FR 46813). 
Because the current regulations do not require a base payment 
adjustment under these circumstances, and we believe it would be 
burdensome for States to comply with this requirement after subgrants 
have been made for a fiscal year, we propose to add language to Sec.  
300.816(b)(4), to clarify that this requirement would take effect with 
funds that become available on the first July 1 following the effective 
date of the final regulations.
3. Reallocation of Funds
    Section 619(g)(2) of the Act and Sec.  300.817 (71 FR 46813) 
authorize an SEA to reallocate section 619 funds not needed by an LEA, 
if the SEA determines that an LEA is adequately providing FAPE to all 
preschool children with disabilities residing in the area served by 
that agency, with State and local funds. Under these statutory and 
regulatory provisions, States may, but are not required to, reallocate 
these section 619 funds. The regulations in current Sec.  300.817 do 
not address reallocation of funds from an LEA that does not use its 
funds because it is not serving any preschool children with 
disabilities.
    We propose to amend Sec.  300.817 (71 FR 46813) to indicate that, 
after an SEA distributes funds under section 619 to an eligible LEA 
that is not serving any preschool children with disabilities, as 
provided in proposed Sec.  300.815, the SEA must determine, within a 
reasonable period of time prior to the end of the carryover period 
specified in 34 CFR 76.709, whether the LEA has obligated the funds. 
The SEA may, if it chooses, reallocate any of those funds not obligated 
by the LEA to other LEAs in the State that are not adequately providing 
special education and related services to all preschool children with 
disabilities residing in the areas served by those other LEAs. The SEA 
may also retain those funds for use at the State level to the extent 
the State has not reserved the maximum amount of funds it is permitted 
to reserve for State-level activities pursuant to Sec.  300.812. Given 
the fact that small amounts of funds distributed late in their period 
of availability to LEAs would be prone to lapse, we are clarifying that 
States may use these funds at the State level, to the extent the State 
has not set aside the maximum amount for State-level activities, in 
order to increase the chance these funds would be well spent. Whether 
funds are reallocated or retained for use at the State level under 
Sec.  300.817, they must be obligated prior to the close of the period 
of availability for those funds. In sum, these proposed regulations 
would help to ensure that the funds under section 619 of the Act do not 
lapse, by making it clear that SEAs may redistribute funds not 
obligated by LEAs that currently are not serving any children with 
disabilities aged three through five or retain these funds for State-
level activities.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive Order and review by OMB. Section 3(f) 
of Executive Order 12866 defines a ``significant regulatory action'' as 
an action likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more, or adversely affect a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local or tribal 
governments or communities in a material way (also referred to as an 
``economically significant'' rule); (2) create serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impacts of entitlement grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. The Secretary has determined that this regulatory 
action is significant under section 3(f)(4) of the Executive Order.
    Under Executive Order 12866, we have assessed the potential costs 
and benefits of these proposed regulations. In conducting this 
analysis, the Department examined the extent to which the amended 
regulations would add to, or reduce, the costs for public agencies and 
others in relation to the costs of implementing the program 
regulations. Based on this analysis, the Secretary has concluded that 
the amendments to the regulations would not impose significant net 
costs in any one year. The amendments to the regulations would 
primarily affect SEAs and LEAs responsible for carrying out

[[Page 27698]]

the requirements of Part B of the Act as a condition of receiving 
Federal financial assistance under the Act. For example, the amendments 
to the regulations add language to further explain the intent of the 
Act, clarify the intent of existing regulations, and add timeframes for 
implementation. The amendments do not add provisions to the regulations 
that would increase the fiscal responsibilities of, or burdens on, SEAs 
or LEAs in implementing the proposed amendments. In fact, the 
provisions related to parental revocation of consent may reduce burden 
on, and costs to, LEAs by relieving them of the obligation to override 
a parent's refusal to consent subsequent to the initiation of special 
education services through informal means or through due process 
procedures. The clarification relating to non-attorney representation 
at due process hearings can be expected to reduce costs associated with 
disputes regarding non-attorney representation.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (use of 
headings, paragraphing, etc.) aid or reduce their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a number heading; for example, 
Sec.  300.172, regarding access to instructional materials.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand see the instructions in 
the ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these amendments to the final 
regulations governing the Assistance to States for the Education of 
Children with Disabilities and the Preschool Grants for Children with 
Disabilities programs, would not have a significant economic effect on 
a substantial number of small entities. The small entities that would 
be affected by these proposed regulations regarding allocation of funds 
under sections 611 and 619 of the IDEA to LEAs, that are not serving 
any children with disabilities, are small LEAs, including charter 
schools that operate as LEAs. These small entities would benefit from 
the proposed changes that clarify their eligibility for funding in 
cases where they are not serving any children with disabilities.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), we 
have assessed the potential information collections in these proposed 
regulations that would be subject to review by the OMB. In conducting 
this analysis, the Department examined the extent to which the amended 
regulations would add information collection requirements for public 
agencies. Based on this analysis, the Secretary has concluded that 
these amendments to the Part B IDEA re