Browse by Year
/ 2008
/ May
/ Tuesday, May 13, 2008
[Federal Register: May 13, 2008 (Volume 73, Number 93)]
[Proposed Rules]
[Page 27689-27701]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my08-15]
[[Page 27689]]
-----------------------------------------------------------------------
Part III
Department of Education
-----------------------------------------------------------------------
34 CFR Part 300
Assistance to States for the Education of Children With Disabilities
and Preschool Grants for Children With Disabilities; Proposed Rule
[[Page 27690]]
-----------------------------------------------------------------------
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).
-----------------------------------------------------------------------
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 regulations would not impose
additional information collection requirements. The proposed changes to
Sec. 300.602(b)(1)(i)(B) (71 FR 46801) would--(1) Add the State's APR
to the list of documents that a State must make available through
public means; and (2) specify that the SEA make the State's performance
plan, the State's APR, and the State's annual reports on the
performance of each LEA in the State available to the public by posting
the documents on the State's Web site and distributing the documents to
the media and through public agencies. Each State already is required
to report to the Secretary on the annual performance of the State as a
whole in its APR. Because the APR is a completed document, the
additional time for reporting to the public would be minimal and is
within the established reporting and recordkeeping estimate of current
information collection 1820-0624 (71 FR 46751-46752). Additionally,
States already are required by current Sec. 300.602(a) and
(b)(1)(i)(A) to analyze the performance of each LEA on the State's
targets, and to report annually to the public on the performance of
each LEA on the targets. The proposed regulation, by requiring that
these documents be posted on the State's Web site and be distributed to
the media and through public agencies, merely adds specificity about
the means of public reporting. The additional time for reporting to the
public through these means would be minimal and is within the
established reporting and recordkeeping estimate of current information
collection 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.
[[Page 27699]]
Dated: May 7, 2008.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend title 34 of the Code of Federal Regulations as follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
1. The authority citation for part 300 continues to read as
follows:
Authority: 20 U.S.C. 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:
Sec. 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:
Sec. 300.177 States' sovereign immunity and positive efforts to
employ and advance qualified individuals with disabilities.
(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.
(Authority: 20 U.S.C. 1403, 1405)
4. Section 300.300 is amended by:
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:
Sec. 300.300 Parental consent.
* * * * *
(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 Sec. 300.506 or the due process
procedures under Sec. Sec. 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 Sec. Sec. 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 Sec. 300.506 or the due
process procedures under Sec. Sec. 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 Sec. Sec. 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:
Sec. 300.512 Hearing rights.
(a) * * *
(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 non-attorneys 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:
Sec. 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 Sec. 300.603(b)(1);
(3) Enforce this part, consistent with Sec. 300.604, using
appropriate enforcement mechanisms, which must include, if applicable,
the enforcement mechanisms identified in Sec. 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 Sec. 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:
Sec. 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
[[Page 27700]]
(B) Make each of the following items available through public
means: the State's performance plan, under Sec. 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:
Sec. 300.606 Public attention.
Whenever a State receives notice that the Secretary is proposing to
take or is taking an enforcement action pursuant to Sec. 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 Sec. 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:
Sec. 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 Sec. 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 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 Sec.
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 Sec. 300.704.
* * * * *
10. Section 300.815 is revised to read as follows:
Sec. 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 Sec. 300.812 to LEAs (including public charter
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:
Sec. 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:
Sec. 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
[[Page 27701]]
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.
(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 Sec. 300.815, 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 aged three
through five years 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.
(Authority: 20 U.S.C. 1419(g)(2))
[FR Doc. E8-10522 Filed 5-12-08; 8:45 am]
BILLING CODE 4000-01-P
Browse by Year
/ 2008
/ May
/ Tuesday, May 13, 2008
Wills - Loans - Debt Consolidation - Credit Counseling
|
|
