Supplemental Regulations to 34 CFR Part 300

1. Supplemental Regulations to 34 CFR Part 300 Assistance to State for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities – Final Regulations (73 FR 73006)

2. Part B Supplemental - Background • Final regulations (34 CFR Part 300) for the IDEA of 2004 were published on August 14, 2006 • Those regulations identified certain issues for which additional regulatory changes might be necessary

3. Part B Supplemental - Background An NPRM (73 FR 27690) published on May 13, 2008 sought comment on the following areas – • Parental revocation of consent to continued special education and related services (§§300.9 and 300.300) • An SEA or LEA’s obligation to make positive efforts to employ qualified individuals with disabilities (§300.177)

4. Part B Supplemental – Background • Representation of parents by non-attorneys in due process hearings (§300.512) • State monitoring, technical assistance, and enforcement of the Part B program (§§300.600, 300.602, 300.606) • The allocation of funds, under sections 611 and 619 of the Act, to LEAs that are not serving any children with disabilities (§§300.705, 300.815, 300.816, 300.817)

5. Part B Supplemental - Background • Approximately 740 comments were received in response to the NPRM • SEAs, LEAs, professional associations, advocacy organizations, parents and individuals submitted comments • §§300.300 and 300.512 received the most comments

6. §300.177(b) – Positive Efforts to Employ Individuals with Disabilities Implements section 606 of the Act 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.

7. §300.177(b) – Positive Efforts to Employ Individuals with Disabilities • “Positive Efforts” • Not defined because appropriate positive efforts will vary depending on the needs of the State or public agency • Positive efforts could include • Employment fair targeted at individuals with disabilities • Vacancy announcements to organizations for individuals with disabilities • Making individuals with disabilities aware of promotional opportunities

8. §300.600 – Monitoring and Enforcement • §300.600(a)(2) – The State must make determinations annually about the performance of each LEA using the categories in §300.603(b)(1) • §300.600(a)(3) – clarifies enforcement mechanisms • §300.600(a)(4) – requires States to annually report on the performance of the SEA and each LEA

9. §300.600 – Monitoring and Enforcement • §300.600(e) – puts the one year correction timeline into regulation • Most States have demonstrated that noncompliance can be corrected within one year of identification • States that can’t correct may enter into a compliance agreement • Will not stratify types of noncompliance

10. §300.602 – Targets and Reporting §300.602(b)(1)(i)(A) – annual public reporting must occur as soon as practicable but no later than 120 days following the SEA’s APR submission

11. §300.602 – Targets and Reporting • Timeline alleviates any uncertainty about when public reporting must be completed • Change from the NPRM proposed timeline of 60 days • Allows for more accurate analysis of LEA data, thereby improving the quality of reporting

12. §300.602 – Targets and Reporting §300.602(b)(1)(i)(B) – implements section 616(b)(2)(C)(ii)(I) of the Act • NPRM required SPP, APR and annual public reporting to be posted on “State’s Web site” • Final regulations clarify that these documents must be on the “SEA’s Web site” • Posting historical documents is left to each State to decide

13. §300.606 – Notification of Enforcement Actions Requires an SEA, at a minimum, to post on its Web site and distribute to the media and through public agencies the notice that the Secretary is proposing to take or is taking an enforcement action pursuant to §300.604

14. §300.606 – Notification of Enforcement Actions Does not require an SEA to report to the public on enforcement actions taken against LEAs although an SEA may choose, and the Department encourages States, to do so

15. §300.705 – Subgrants to States (611) • Prompted by a 2004 OIG report • §300.705(a) – Clarifies 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 • Regulation becomes effective with the funds that become available on July 1, 2009

16. §300.705 – Subgrants to States (611) • Will 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 • States may have to revise policies and procedures for distributing Part B funds, but the benefits outweigh any potential administrative burden

17. §300.705 – Subgrants to States (611) • §300.705(b)(2)(iv) – requires base payment adjustment in subsequent year if LEA serves children with disabilities • §300.705(c) – allows, but does not require, States to reallocate or retain Part B funds not obligated by an LEA that is not serving any children with disabilities

18. §300.815, 816, 817 – Subgrants to States (619) • §300.815 parallels §300.705(a) • §300.816(b)(iv) parallels §300.705(b)(2)(iv) • §300.817 parallels §300.705(c)

19. §300.512 –Hearing Rights Parties may be accompanied or advised by counsel or by individuals with special knowledge or training with respect to the problems of children with disabilities at a due process hearing, however State law determines whether or not parties have the right to be represented by non-attorneys during a due process hearing

20. §300.512 –Hearing Rights “Given that the Act is silent regarding the representational role of non-attorneys in IDEA due process hearings, the issue of whether non-attorneys may ‘represent’ parties to a due process hearing is a matter that is left, by the statute, to each State to decide.” (Final Regulations – 73 FR 73017)

21. §300.300 –Parental Consent The Bottom Line – A parent has the right to unilaterally withdraw a child with a disability from continued special education and related services and a public agency may not challenge that parent’s decision using Part B dispute resolution procedures

22. §300.300 –Parental Consent Associated Regulations • New §300.300(b)(3)(i) and (ii) – combines current §300.300(b)(3) and (b)(4) • A public agency may not use the procedures in Subpart E if a parent fails to respond or refuses to provide consent to the initial provision of services • A public agency will not be considered to be in violation of its obligation to make FAPE available and is neither required to convene an IEP Team meeting or develop an IEP in these circumstances

23. §300.300 –Parental Consent New §300.300(b)(4) – If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services the public agency -

24. §300.300 –Parental Consent (i) May not continue to provide special education and related services to that child, but must provide prior written notice in accordance with §300.503 before ceasing the provision of special education and related services;

25. §300.300 –Parental Consent (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;

26. §300.300 –Parental Consent (iii) 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 further special education and related services; and

27. §300.300 –Parental Consent (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.

28. §300.300 –Parental Consent Rationale - The Act provides parents with the authority to consent to the initial provision of special education and related services, therefore parents also should have the authority to revoke that consent, thereby ending the provision of special education and related services to that child (NPRM - 73 FR 27691)

29. §300.300 –Parental Consent While the change reverses the longstanding interpretation of the Department, it provides consistency 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” (NPRM - 73 FR 27691)

30. §300.300 –Parental Consent Changes from NPRM in response to comments received • Revocation must be in writing • The public agency must provide prior written notice in accordance with §300.503 before ceasing the provision of special education and related services.

31. §300.9 – Definition of Consent Clarifies that, while a parent may revoke consent for the continued provision of 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.

32. Dates to Remember Supplemental Regulations published on December 1, 2008 http://edocket.access.gpo.gov/2008/pdf/E8-28175.pdf Supplemental Regulations take effect on December 31, 2008