A Word of Caution

No two cases are exactly alike. This material is designed to provide educators with a broad understanding of certain aspects of the federal regulations that pertain to the reauthorized I.D.E.A. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.

Table of Contents

I. Overview

The purpose of this material is to provide the Administrator with a deeper knowledge of some of the more subtle nuances of the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA") and the Federal Regulations. This material is not intended to substitute for legal counsel nor is it intended to provide an exhaustive statement of the Federal Regulations or the IDEIA.

The regulations referenced in this material were released on August 14, 2006, and went into effect on October 13, 2006.

Return to Table of Contents

II. An Overview of What's New

A. Definitions (34 C.F.R. §§ 300.4-300.45)

Most terms defined in the regulations are identical to the definitions contained in the former regulations. However, the following terms are new or redefined:

1. Assistive technology, 34 C.F.R. § 300.5: ⁽¹⁾ The definition has been revised to incorporate the new language from the IDEIA 2004 that the term does not include "a medical device that is surgically implanted, or the replacement of such a device."

The Office of Special Education ("OSEP") has stated ⁽²⁾ that "medical devices that are surgically implanted, including those used for breathing, nutrition, and other bodily functions, are excluded from the definition of an assistive technology devise in section 602(1)(B) of the Act. The exclusion applicable to a medical device that is surgically implanted includes both the implanted component of the device, as well as its external components." See Federal Register, Vol. 71, No. 156 at 46547 (Aug. 14, 2006).

2. Child with a Disability, 34 C.F.R. § 300.8: The definition pertaining to "children aged three through nine experiencing developmental delays" has been revised to clarify that use of the term "developmental delay" is subject to the conditions set forth in section 300.111(b). See § 300.8(b). Tourette syndrome has been added as an example of an acute or chronic health problem in section 300.8(c)(9) (other health impaired).

OSEP declined to create a disability category for children with Fetal Alcohol Syndrome (FAS), stating that the existing categories "are sufficient to include children with FAS who need special education and related services. Special education and related services are based on the identified needs of the child and not on the disability category in which the child is classified." See Federal Register, Vol. 71, No. 156 at 46549 (Aug. 14, 2006).

3. Consent, 34 C.F.R. § 300.9: The definition of consent incorporates the definition that had appeared in former section 300.500(b)(1).

OSEP stated that "whenever consent is used in the regulations, it means that the consent is both informed and in writing." See Federal Register, Vol. 71, No. 156 at 46551 (Aug. 14, 2006). In addition, OSEP stated that it intends to "propose regulations to permit parents who previously consented to the initiation of special education services, to withdraw their consent for their child to receive, or continue to receive, special education services." Id. When these regulations are proposed the public will have an opportunity to comment before they go into effect.

4. Core Academic Subjects, 34 C.F.R. § 300.10, "means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography." (The same as in 9101 of the Elementary and Secondary Education Act of 1965 [NCLB]).

5. Highly Qualified Special Education Teachers, 34 C.F.R. § 300.18: This definition has been added to the regulations in accordance with section 602(10) of the IDEIA. The definition of "highly qualified" applies only to public elementary school and secondary school special education teachers teaching core academic subjects. See Section 300.18(a); see also Section 300.18(h). Special educators teaching in public charter schools must meet any certification or licensing requirements established by the State's public charter school law. ⁽³⁾ See Section 300.18(b)(1)(I). The regulation also states that teachers participating in an alternate route to a certification program will be considered to be fully certified under certain circumstances. The standard to be applied to an alternate route to certification program" is the same as under Title I of NCLB. See Section 300.18(b)(2).

This regulation permits special education teachers who teach core academic subjects exclusively to children who are assessed against the alternate achievement standards to fulfill the highly qualified teacher requirements of the NCLB as applied to an elementary school teacher, or, in the case of instruction above the elementary level, to meet the requirements for an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided, including at a minimum, subject matter knowledge at the elementary level or above, as determined by the State, needed to effectively teach to those standards. See Section 300.18(c).

The regulation permits the use of a separate "high objective uniform State standard of evaluation" (HOUSSE) for special education teachers, provided that adaptations of the State's HOUSSE would not establish a lower standard for the content knowledge requirements for special education teachers, and that it meets the requirements for a HOUSSE for regular education teachers. See Section 300.18(e).

The regulation clarifies that parents and students may not file a due process complaint or file a judicial action on behalf of a class of students, for the failure of a particular SEA or LEA employee to be highly qualified. See Section 300.18(f). Parents may, however, file a complaint about staff qualifications with the SEA. Id. OSEP stated that "[I]f the only reason a parent believes their child was denied FAPE is that the child did not have a highly qualified teacher, the parent would have no right of action under the Act on that basis." See Federal Register, Vol. 71, No. 156 at 46562 (Aug. 14, 2006) (emphasis added).

The highly qualified special education teacher requirements do not apply to early childhood or preschool programs if those programs are not part of a State's public elementary and secondary school system. See Federal Register, Vol. 71, No. 156 at 46555 (Aug. 14, 2006).

OSEP believes that "the clear intent of the Act is to ensure that all children with disabilities have teachers with the subject matter knowledge and teaching skills necessary to assist children achieve high academic standards (sic)." Id.

6. Related Services, 34 C.F.R. § 300.34: The definition of related services encompasses the new services that were added under the IDEIA. Those new services include interpreting services and school nurse services.

Interpreting services now includes sign language transliteration (e.g., translation systems such as Signed Exact English and Contact Signing), transcription services such as communication access real-time translation (CART), C-Print, and TypeWell, and special interpreting services for children who are deaf-blind. OSEP believed that the definition of interpreting services was sufficiently broad to include American sign language and sign language systems and therefore, those were not added to the definition.

7. Scientifically Based Research, 34 C.F.R. § 300.35, this new term has the meaning given the term in section 9107(37) of ESEA:

The ESEA defines scientifically based research as:

(a) . . . research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and

(b) Includes research that:

(1) employs systematic, empirical methods that draw on observation or experiment;

(2) Involves rigorous data analyses that are adequate to test the state hypotheses and justify the general conclusions drawn:

(3) Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;

(4) Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to differed conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random-assignment experiments, or other deigns to the extent that those designs contain within-condition or across-condition controls;

(5) Ensure that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and

(6) Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.8. Supplementary Aids and Services, 34 C.F.R. § 300.42, this definition has been revised to include "extracurricular and nonacademic" to the list of settings in which supplementary aids and services must be provided.

9. Transition Services, 34 C.F.R. § 300.43, this definition has been revised to reflect the changes made in IDEIA 2004. The definition refers to a coordinated set of activities for a child with a disability that "is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities..."

10. Universal Design, 34 C.F.R. § 300.44, has the meaning given the term in section 3 of the Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002.

The Assistive Technology Act defines universal design as "a concept of philosophy for designing and delivering products and services that are usable by people with the widest posible range of functional capabilities, which include products and services that are directly accessible (without requiring assistive technologies) and products and services that are interoperable with assistive technologies."

11. Ward of the State, 34 C.F.R. § 300.45, is a child who, as determined by the State where the child resides, is a foster child, a ward of the State, or in the custody of a public child welfare agency, except that a child with a foster parent who meets the definition of parent in section 300.30 is not a ward of the state.

B. Subpart B - State Eligibility (34 C.F.R. §§ 300.100-300.199)

In accordance with the IDEIA, the regulations no longer require that copies of all State statutes, regulations, and other documents (including policies and procedures) be on file with the Secretary. In addition, States are required to identify in writing to LEAs located in the State and to the Secretary of Education any such rule, regulation, or policy as a State-imposed requirement that is not required by Part B of the Act and Federal regulations. States are also required to minimize the number of rules, regulations, and policies to which the LEAs and schools located in the State are subject under Part B of the Act. 34 C.F.R. § 300.199(a)(2)-(3). State rules, regulations, and policies under Part B of the Act must support and facilitate LEA and school-level system improvement designed to enable children with disabilities to meet the challenging State student academic achievement standards.

1. FAPE Requirements (34 C.F.R. §§ 300.101-300.102)

Section 300.101 states that a FAPE must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.

The regulation also states that children do not have to fail or be retained in a course or grade in order to be considered eligible for special education and related services.

Section 300.102 retained the exceptions to FAPE that existed in the former regulations. A new paragraph has been added to state that a regular high school diploma does not include an alternative degree that is not fully aligned with the State's academic standards, such as a certificate or a general educational development credential (GED).

2. Other FAPE Requirements (34 C.F.R. §§ 300.103-300.113)

Section 300.107, Nonacademic services, incorporates the requirement nonacademic and extracurricular services be provided when appropriate and necessary to afford children with disabilities an equal opportunity for participation in those services and activities. Examples of nonacademic and extracurricular services include: counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs, referrals to agencies that provided assistance to individuals with disabilities, and employment of students.

Section 300.108, Physical education, clarifies that the public agency has no obligation to provide physical education for children with disabilities if it does not provide physical education to non-disabled children in the same grade.

Section 300.111, Child find, has been amended to reflect the changes made in the IDEIA. States must now demonstrate Child Find policies and procedures capable of finding homeless children and "wards of the state" who are educationally disabled.

Section 300.112, Individualized education plans, now contains an exception referencing section 300.300(b)(3)(ii). Section 300.300(b)(3)(ii) provides that if the parent of a child with a disability refuse to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the public agency is not required to convene an IEP meeting to develop an IEP for the child for which the public agency requests such consent.

Section 300.113, Routine checking of hearing aids and external components of surgically implanted medical devices. This new section requires the public agency to ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly. This section also requires that the public agencies ensure that the external components of surgically implanted medical devices are functioning properly.

3. State Complaint Procedures (34 C.F.R. §§ 300.151-300.153)

These provisions are similar to the former provisions pertaining to complaint procedures. However, the minimum state complaint procedures have been expanded to require that the public agency have the opportunity to respond to the complaint, including the opportunity to propose a resolution to the complaint and an opportunity for the parent and the public agency to engage in mediation. The regulations also require that the state complaint procedures permit an extension of the normal 60 time period for resolution of complaints if exception circumstances exist or if the parent and public agency agree to engage in mediation or other form of alternate dispute resolution.

The regulations added new information requirements for complaints, similar to the notice requirements for a due process complaint. Thus, complaints must now include - "a statement that a public agency has violated a requirement of Part B of the Act or this part; The facts on which the statement is based; The signature and contact information for the complainant; and If alleging violations with respect to a specific child - the name and address of the residence of the child; the name of the school the child is attending; in the case of a homeless child or youth, available contact information for the child, and the name of the school the child is attending; a description of the nature of the problem of the child, including facts relating to the problem; and a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed." 34 C.F.R. § 300.153(b). These notice requirements are intended to give the public agency the information that will allow it to attempt to resolve the complaint.

The regulations also contain a mandatory set aside provision which requires that a state set aside a complaint until the conclusion of a due process hearing. In addition, the violation alleged in the complaint must have occurred not more than one year prior to the date the complaint is received, and the party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child.

The reference to monetary reimbursement or compensatory services is retained in the final regulations (it had been removed from the proposed regulations).

4. Methods of Ensuring Services (34 C.F.R. § 300.154)

The public agency must obtain consent from parents each time the public agency seeks to access the parents' public benefits or insurance. If a parent refuses to allow access to the parent's public benefits or insurance, the public agency is still required to ensure that the child receives all required services, at no cost to the parent. OSEP has opined that the consent requirements could be met if the parent provided the required consent to the State Medicaid agency, and the consent satisfied the definition of consent in section 300.9.

5. Additional Eligibility Requirements (34 C.F.R. §§ 300.155-300.166)

Section 300.156, Personnel qualifications, incorporates the requirements in the IDEIA that the SEA establish and maintain qualifications to ensure that personnel, including related service providers and paraprofessionals, are appropriately and adequately prepared and trained. This section also states that parents or students may not file a due process complaint on behalf of a student, or file a judicial action on behalf of a class of students for the failure of a particular SEA or LEA employee to be highly qualified. Parents, organizations, or individuals may, however, file a complaint with the SEA regarding staff qualifications.

Section 300.157, Performance goals and indicators, requires that the State have in effect established goals for the performance of children with disabilities in the State that, among other things, are the same as the State's objectives for progress by children in its definition of adequate yearly progress, including the State's objectives for progress by children with disabilities, under section 1111(b)(2)(C) of the ESEA, 20 U.S.C. 6311. The goals must also be consistent, to the extent appropriate, with any other goals and academic standards for children established by the State.

Participation in assessments is the subject of a notice of proposed rulemaking published in the Federal Register in December 2005 to amend the regulations governing programs under title I of the ESEA and Part B of the Act, regarding additional flexibility for States to measure the achievement of children with disabilities based on modified achievement standards. See Federal Register, Vol. 71, No. 156 at 46614 (Aug. 14, 2006). Therefore, the proposed regulation pertaining to participation in assessments, PR 300.160, was removed from the final regulations.

6. Other Provisions Required for State Eligibility (34 C.F.R. §§ 300.170-300.177)

States are required to adopt the National Instructional Materials Accessibility Standard for purposes of providing instructional materials to blind persons or other persons with disabilities in a timely manner after publication of the NIMAS in the Federal Register on July 19, 2006 (71 FR 41084) (effective August 18, 2006). The regulation also states that "[n]othing in this section would relieve an SEA of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, but are not included under the definition of blind or other persons with print disabilities in § 300.172(e)(1)(i) or who need materials that cannot be produced from NIMAS files, receive those instructional materials in a timely manner." The SEA must ensure that all public agencies take reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials at the same time as other children receive instructional materials.

Section 300.173, Overidentification and disproportionality, requires that the State have in effect policies and procedures designed to prevent the inappropriate overidentification and disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment.

Section 300.174, Prohibition on mandatory medication, clarifies that this provision does not create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or the child's possible need for an initial evaluation for special education and related services.

C. Subpart C - Local Educational Agency Eligibility (34 C.F.R. §§ 300.200-300.230)

LEA funding eligibility remains conditioned on the LEA providing assurances to the State that the LEA meets each of the conditions set forth in sections 300.201 through 300.213.

The final regulations contain a number of new provisions involving the LEA, which reflect and clarify the provisions of the IDEIA:

Section 300.207 requires that the LEA ensure that all personnel necessary to carry out Part B of the Act must be "appropriately and adequately prepared," in accord with the IDEIA and NCLB to meet the relevant standards for their profession.

Section 300.208 allows the LEA to spend federal funds for the costs of special education and related services, and supplementary aids and services, provided in a regular class or other education-related setting to a child with a disability in accordance with the IEP of the child, even if one or more non-disabled children benefit from those services. The LEA may also use federal funds to purchase appropriate technology for recordkeeping, data collection, and related case management activities of teachers and related services personnel providing services described in the IEP of children with disabilities, that is needed for the implementation of those case management activities.

Section 300.209 clarifies that children with disabilities who attend public charter schools and their parents retain all rights under this part. When providing services to children with disabilities attending charter schools that are public schools of the LEA, the LEA must provide supplementary and related services on site at the charter school to the same extent as it does at its other public schools. The LEA must provide funds under Part B of the Act to the LEA's charter schools on the same basis as it provides funds to its other schools, including proportional distribution based on the relative enrollment of children with disabilities, and that it must provide those funds at the same time as the LEA distributes funds to its other public schools.

In addition, this section provides that if the public charter school is a school of an LEA that receives funding under §300.705, the LEA is responsible for ensuring that the requirements of Part B are met (unless State law assigns that responsibility to some other entity). If a public charter school is not an LEA receiving funding under this part or a school that is part of an LEA receiving funding, the SEA is responsible for ensuring that the requirements of this part are met.

Section 300.226 provides that the LEA may not use more than 15% of the amount the LEA receives under Part B of the Act for any fiscal year, less any amount reduced by the LEA pursuant to § 300.205, if any, in combination with other amounts (which may include amounts other than education funds), to develop and implement coordinated, early intervening services, which may include interagency financing services for students K - 12 (with an emphasis on K-3) who are not currently identified as needing special education or related services, but who "need additional academic and behavioral support to succeed in a general education environment."

D. Subpart D - Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements (34 C.F.R. §§ 300.300-300.328)

1. Parental Consent (34 C.F.R. § 300.300)

This section sets forth the requirement of parental consent for initial evaluations, reevaluations, and the initial provision of services. This section retains the provision that consent for the initial evaluation may not be construed as consent for the initial provision of special education and related services. The regulations use the term "initial provision" rather than the statutory term "receipt" of special education and related services. This clarifies that consent does not need to be sought every time a particular service is provided to the child, but must be received before "initial provision." This is consistent with the revised language of the Act and the Department's position that placement refers to the provision of special education services rather than as a specific place, such as a specific classroom or specific school.

If the child is a ward of the state and is not residing with the child's parent, then, for initial evaluations only, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability if: despite reasonable efforts to do so, the LEA cannot discover the whereabouts of the parent; the rights of the parents of the child have been terminated; or the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child. The public agency must make reasonable efforts to obtain informed parental consent for an initial evaluation for all children.

This section also clarifies that if the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in subpart E of the regulations, if appropriate, except to the extent inconsistent with State law. States and LEAs do not violate their obligation to locate, identify, and evaluate children suspected of being children with disabilities under the Act if they decline to pursue an evaluation to which a parent has failed to consent.

The consent override provisions do not apply to children who are home-schooled or attending private schools, unless the parents are seeking to enroll the child in the public school. However, public agencies do have an obligation to actively seek parental consent to evaluate private school (including home school, if considered a private school under State law) children who are suspected of being children with disabilities under the Act. If the parents of a private school child withhold consent for an initial evaluation, the public agency would have no authority to conduct an evaluation and no obligation to consider that child as eligible for services under proposed §§300.132 through 300.144.

The public agency must obtain informed consent from the parent before the initial provision of special education and related services. The public agency must make reasonable efforts to obtain informed consent, but the public agency may not use the procedures in subpart E in order to obtain agreement or a ruling that the services may be provided to the child.

If the parent does not consent or fails to respond, the LEA shall not be considered to be in violation of the requirement to make available a Free Appropriate Public Education to the child, at least as to those matters for which informed consent has been sought, nor shall it be required to convene an IEP meeting or develop an IEP for the child.

2. Evaluations and Reevaluations (34 C.F.R. §§ 300.301-300.306)

These sections reflect the Act. Section 300.301, Initial evaluations, clarifies that

in order to receive an exception to the time-frame for completion of the initial evaluation, the child must enroll in a school of another public agency after the relevant time-frame has begun and prior to a determination by the prior public agency as to whether the child is a child with a disability. Thus, if a child moves from one school to another, within the same public agency, that exception does not apply.

Section 300.303, Reevalutions. The final regulations retained the changes found in the proposed regulations. The LEA is required to ensure that a re-evaluation takes place "if the child's parent or teacher request a re-evaluation," but no more than once a year unless the parent and LEA agree otherwise. Re-evaluations must occur at least once every three (3) years, unless the parent and LEA agree it is unnecessary.

Section 300.305 addresses the additional requirements for evaluations and reevaluations. The LEA is now required to provide a summary of academic and functional performance including recommendations to assist the student in meeting post-secondary goals, for students whose eligibility terminates because of graduation with a regular high school diploma or because of exceeding the age eligibility for FAPE under State law.

Section 300.306, Determination of eligibility, requires that the public agency draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior, and ensure that the information obtained from those services is documented and carefully considered. In addition, upon completion of the administration of assessments and other evaluation measures, a group of qualified professionals, including the child's parent, must determine whether the child is a child with a disability and the educational needs of the child. An evaluation report must be provided to the parents at no cost to them.

This section also states that a child must not be determined to be a child with a disability under this part if the determinant factor is lack of appropriate instruction in reading, including the essential components of reading instruction, lack of appropriate instruction in math, or limited English proficiency, and if the child does not otherwise meet the eligibility criteria under 300.8(a).

3. Individualized Education Programs (34 C.F.R. §§ 300.320-300.323) and Development of IEP (34 C.F.R. §§ 300.324-300.328)

These provisions reflect the act and generally retain the definitions that had been set forth in the proposed regulations. Section 300.323, When IEPs must be in effect, contains separate provisions pertaining to IEPs for children who transfer public agencies in the same State and IEPs for children who transfer from another State. That section also contains a separate provision pertaining to the transmittal of records from one public agency to another. Section 300.324 requires that the IEP team consider special factors when reviewing and revising an IEP, as well as when developing the child's IEP.

Return to Table of Contents

III. Private Schools

A. Parentally-placed private school children.

1. Overview

The requirements for children placed by their parents in private schools apply to children attending private elementary and secondary schools. See 20 U.S.C. § 1412(a)(10)(I)-(ii). Section 300.130 of the federal regulations defines "parentally-placed private school children with disabilities" as "children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school in § 300.13 or secondary school in § 300.16, other than children with disabilities [who have been placed at the private school by the LEA]."

Section 300.13 defines "elementary school" as "a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law." Thus, in order to determine whether children with disabilities, who have been placed in private kindergartens by their parents, are considered "parentally-placed private school children with disabilities," we must look to New Hampshire's definition of Elementary Education.

In New Hampshire, elementary education is defined "any school in which the subjects taught are those prescribed by the state board for the grades kindergarten through 8 of the public schools." See RSA 189:25 ("Any elementary school may include a kindergarten program which, if it is provided, shall precede the other elementary grades."). Therefore, children with disabilities, who have been placed in private kindergartens by their parents, are considered "parentally-placed private school children with disabilities." The LEA where the private kindergarten is located is responsible for ensuring that the provisions of the IDEIA pertaining to parentally-placed private school children are carried out.

The IDEIA focuses on the delivery of special education services to children enrolled in private schools. There is a detailed regimen to the Child Find process for children enrolled by parents in private schools located in the geographic jurisdiction of the school district. The LEA where the private school is located is responsible for conducting Child Find activities for parentally placed private school children. This responsibility extends to children who reside in a State other than the State in which the private schools that they attend are located.

The regulations pertaining to Child Find have been amended in accordance with the IDEIA. In general, the regulations reflect the Act.

Section 300.131, Child find for parentally-placed private school children with disabilities, clarifies that the provisions governing parentally-placed private school children with disabilities apply to children who are enrolled in private, including religious, elementary or secondary schools located in the school district served by the LEA. Children ages three through five are considered to be parentally placed private school children enrolled in private schools, if they are enrolled in a private school that meets the definition of elementary school in section 300.13.

The section also clarifies that is the LEAs where private, including religious elementary and secondary schools, are located must, in carrying out the child find requirements in this section, include parentally-placed private school children who reside out-of-state. See 34 C.F.R. § 300.131(f).

The IDEIA also requires that the LEA provide parentally placed children with equitable participation in the services funded with federal IDEA funds. Aside from Child Find, children enrolled in private schools by their parents are not entitled to receive all of the special education and related services they would receive if they attended a public school. However, the LEA may, at its discretion, provide additional services beyond those services mandated by the IDEIA.

Section 300.132 pertains to the provision of services for parentally-placed private school children with disabilities. This section reflects the Act and clarifies that the provision of services refers only to children with disabilities enrolled by their parents in private schools located in the school district served by the LEA. Thus, the LEA in which the private school is located is not responsible for the provision of services to children placed by another LEA.

Query: When parents unilaterally places their child in a private school and obtain reimbursement for that placement, either as the result of a due process proceeding or as a result of an agreement between the District in which the parents' reside, is the LEA where the private school is located responsible for providing services to the child?

Section 300.136 grants private school officials the right to submit a complaint to the SEA that the LEA did not engage in consultation that was meaningful and timely or did not give due consideration to the views of the private school official. The regulation does not require that the private schools officials follow the State complaint procedures; instead, OSEP left it up to the States to determine how such complaints will be filed.

Section 300.140 clarifies that the procedures pertaining to due process requests do not apply to complaints that the LEA has failed to meet the requirements of sections 300.132 through 300.139, including the provision of services indicated on the child's service plan. However, the procedures pertaining to due process requests do apply when the complaint is that the LEA failed to meet the child find requirements in section 300.131, including the requirements in section 300.300 through 300.311. If a due process request is filed, it must be filed with the LEA in which the private school is located.

The IDEIA coined a new phrase entitled "Equitable Services." These services are defined as either direct or contracted special education services. There is an explicit requirement that special education and related services, including materials and equipment, shall be "secular, neutral and non-ideological." Section 300.137 of the regulations sets forth the standard for determining equitable services. The rule acknowledges that there is "no individual right to special education and related services;" stating "no private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school."

Policy level decisions about the services that will be provided to parentally-placed private school children with disabilities are to be made in accord with the student's service plan in conjunction with the consultation process; particularly, the process for determining how a child can "meaningfully participate in special education and related services." This regulation makes its clear that "the LEA must make final decisions with respect to the services to be provided to eligible parentally-placed private school children with disabilities." When a child has been designated to receive special education or related services from an LEA, the LEA must:

1. initiate and conduct meetings to develop, review and revise a services plan for the child; and

2. ensure that a representative of the private school attend each meeting. If the representative cannot attend the LEA should use other methods to ensure participation such as individual or conference telephone calls.

Section 300.138 of the regulations sets forth standards for "equitable service" provision. They are as follows:

1. The services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements of section 300.18; and

2. A parentally-placed private school child may receive a differing amount of services than a child with a disability in a public school;

3. The service plan for the child must, "to the extent appropriate," meet the requirements of PR §300.320 (an IEP or for a child ages 3 through 5 meet the requirements for an ISP) with respect to the services provided; and

4. Be developed, reviewed and revised consistent with IEP review and revision criteria (PR §§300.321-300.324).

These services may be provided on-site at the private school, or at another location. Funds for equitable services may not be paid directly to the private school, although equipment and supplies may be temporarily placed at the private school if the LEA can ensure that the equipment and supplies are used only for Part B purposes and can be easily removed.

B. Children with Disabilities Placed by the Public Agency in Private Schools

Section 300.146(b) requires that the education provided by the private school meets the standards that apply to education provided by the SEA and LEAs, except that private school teachers and personnel are not required to be highly qualified. However, the LEA is responsible for ensuring that the child receives a FAPE at the private placement.

The regulations do not preclude the LEA from placing a child in a private school whose teacher's are not highly qualified. Section 300.146 implies that a child could receive a FAPE while attending a private school where the child is taught by teachers that are not highly qualified. Thus, by extension, it could be possible for a child to receive a FAPE at a public school where the teachers were not yet highly qualified.

Return to Table of Contents

IV. Charter Schools

A. What is a Charter School?

The IDEIA does not define the term "charter school." However, under the IDEIA, the definitions of elementary and secondary schools include public elementary and secondary charter schools. In defining charter school, the regulations refer to the definition of charter school contained in the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 ("ESEA"). 34 C.F.R. § 300.7.

The ESEA defines charter school as "a public school that

1. in accordance with a specific State statue authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this paragraph;

2. is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;

3. operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;

4. provides a program of elementary or secondary education, or both;

5. is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;

6. does not charge tuition;

7. complies with the Age Discrimination Act of 1975 [42 USCS §§ 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973 [29 USCS § 794], and part B of the Individuals with Disabilities Education Act [20 USCS §§ 1411 et seq.];

8. is a school to which parents choose to send their children, and that admits students on the basis of a lottery, if more students apply for admission than can be accommodated;

9. agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such requirements are specifically waived for the purpose of this program;

10. meets all applicable Federal, State, and local health and safety requirements;

11. operates in accordance with State law; and

12. has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school.

20 USCS § 7221i(1).

In New Hampshire, charter schools are defined as "any public school which, in addition to providing educational services to pupils residing within its attendance area or district, chooses to accept pupils from other attendance areas within its district and from outside its district," and which "operates independent of any school board and [is] managed by a board of trustees. RSA 194-B:1, III, VI.

B. Charter schools and the IDEIA

Section 300.209 clarifies that children with disabilities who attend public charter schools and their parents retain all IDEIA rights granted to children who attend other public schools. When providing services to children with disabilities attending charter schools that are public schools of the LEA, the LEA must provide supplementary and related services on site at the charter school to the same extent as it does at its other public schools. The LEA must provide funds under Part B of the Act to the LEA's charter schools on the same basis as it provides funds to its other schools, including proportional distribution based on the relative enrollment of children with disabilities, and that it must provide those funds at the same time as the LEA distributes funds to its other public schools.

If the public charter school is an LEA, then the charter school is responsible for ensuring that the requirements of this part are met, unless the State assigns the responsibility to another entity. 34 C.F.R. § 300.209(c). If the public charter school is not an LEA or is part of an LEA, then the SEA is responsible for ensuring that the requirements of the IDEIA are met. Id. at § 300.209(d).

In addition, section 300.209 provides that if the public charter school is a school of an LEA that receives funding under §300.705, the LEA is responsible for ensuring that the requirements of Part B are met (unless State law assigns that responsibility to some other entity). If a public charter school is not an LEA receiving funding under this part or a school that is part of an LEA receiving funding, the SEA is responsible for ensuring that the requirements of this part are met.

States may use funds to carry out alternate programming for children with disabilities attending charter schools. 20 U.S.C. § 1411(e)(2)(C)(ix).

C. Charter Schools and LEAs: Practical Pointers

NH RSA 194-B establishes the law in New Hampshire with regard to charter schools. Fundamentally, charter schools may be created either by vote of the legislative body or in the alternative, by approval through the State Board of Education.

LEAs must enter students with disabilities who are enrolled in a charter school into the New Hampshire Special Education System. Children attending charter schools are still subject to Child Find. The LEA is ultimately responsible for any failures to identify or refer a student who attends a charter school. Thus, LEAs should post Child Find notices in any charter school located within its District. The LEA where the child resides (not the LEA where the Charter School is located) is responsible for entering data into NHSES and for conducting Child Find activities and for providing special education services.

Charter school personnel should be apprised of the LEA's referral policies and procedures to ensure prompt referrals from charter school personnel who suspect that a student may have a disability.

LEAs should invite personnel from the charter school to students' IEP meetings. If the charter school teacher is the student's regular education teacher that teacher's participation on the team is mandatory. 20 U.S.C. § 1414(d)(1)(B)(ii).

LEAs must serve students attending charter schools in the same manner as the LEA serves children in other public schools. This may include the provisions of supplementary and related services on site at the charter school to the same extent to which the LEA has a policy or practice of providing supplementary and related services on site at its other public schools. This may also include transportation. "Pupils residing in a district in which a charter school is located shall be provided transportation to that school by the district on the same terms and conditions as provided for in RSA 189:6 ⁽⁴⁾ and RSA 189:8 ⁽⁵⁾ and that transportation is provided to pupils attending other public schools within that district." RSA 194-B:2, IX. Any added costs for providing transportation shall be borne by the charter school. Id. Districts are not obligated to provide transportation services for pupils attending an open enrollment school outside of the pupil's district of residence. The LEA would also be responsible for providing transportation if it is a related service in the child's IEP.

Pupils attending charter schools must be evaluated each year, and New Hampshire assessments are part of the evaluation process. RSA 194-B:8, V. Children attending charter schools may receive alternate assessments in accordance with their IEPs.

D. Recent decisions

School for the Arts in Learning (SAIL) Public Charter School v. Johnson, 45 IDELR 187 (U.S. Dist. Ct., D. D.C. 2006)

Facts: student, who was eligible for special education services, was enrolled at SAIL, a charter school. In accord with its IDEA obligations, SAIL convened an annual meeting in December (year 1) to review and consider the student's IEP. Student's mother did not attend, and the meeting was rescheduled. Students mother failed to attend the second meeting, and as a result, almost two months had passed before the IEP was signed.

The following year (year 2), SAIL convened an IEP meeting in January. At that meeting, the team agreed to reevaluate the student, and agreed to wait to update the IEP until the evaluations were complete. Four months later, the evaluations were complete, and SAIL attempted to convene an IEP meeting. In the meantime, however, parents had requested a due process hearing, alleging that the student's IEP was inadequate and that SAIL had unreasonably delayed in completing the reevaluations. Parents requested compensatory education.

The hearing officer found that by waiting to meet until January of year 2, SAIL failed to convene an annual meeting before the IEP had expired. The fact that the IEP was not signed until February of year 1 was irrelevant. The IEP had expired in December of year 1, thus, SAIL should have convened the annual review meeting prior in December of year 2.

Held: the student received FAPE. The team agreed in January of year 2 to extend the student's IEP until the student had been reevalauted. The team had also agreed that it would be unreasonable to finalize a new IEP without the results of the reevaluation. Thus, SAIL's failure to promptly convene an annual review meeting did not deny FAPE. As the court observed, the education of disabled children "is not a game of 'gotcha.'"

IDEA Pub. Charter Sch. v. D.C., 374 F.Supp.2d 158 (D. D.C. 2005)

Facts: parents of a child attending a public school authorized the school to complete an evaluation. Before the evaluation was complete, the child transferred to the charter school. The charter school completed the evaluations and requested a due process hearing, seeking reimbursement from the district.

Held: the charter school, which was an LEA, could not obtain reimbursement from the school district; hearing officer did not have jurisdiction over a dispute between two LEAs

York Surburban Sch. Dist. v. S.P., (P.A. Commonwealth Ct. 2005)

Facts: parents brought suit against a school district seeking compensatory services and subsequently enrolled their child in a charter school.

Held: enrollment in a charter school did not render the state-law action against the school district moot.

Return to Table of Contents

V. Discipline

A. Discipline Procedures

1. Placement in Alternative Educational Settings

School personnel may consider "any unique circumstances" on a "case-by-case basis " when determining whether to order a change in placement for a child with a disability "who violates a code of student conduct." School personnel may now remove a child with a disability who violates a code of conduct from their current placement to:

for not more than ten (10) days, to the extent such alternatives are applied to children without disabilities. 20 U.S.C. § 1415(k)(1)(A)-(B); 34 C.F.R. § 300.530(a)-(b). Students who are removed from their current placement must be included in all general State and districtwide assessment programs.

The regulations permit "additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct," as long as those removals do not constitute a change in placement under section 300.536 of the regulations. 34 C.F.R. § 300.530(b)(1). The Office of Special Education believes that "it is important for purposes of school safety and order to preserve the authority that school personnel have to be able to remove a child for a discipline infraction for a short period of time, even though the child already may have been removed for more than 10 school days in that school year, as long as the pattern of removals does not itself constitute a change in placement of the child." However, "discipline must not be used as a means of disconnecting a child with a disability from education." Therefore, the regulations require that after a child with a disability has been removed from his current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent described in section 300.530(d) of the regulations.

Pursuant to section 300.530(d)(4), "[a]fter a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child's teachers, determine the extent to which services are needed, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set forth in the child's IEP."

The USDOE "believes that this requirement is important to ensure that children with disabilities in this situation receive appropriate services, while preserving the flexibility of school personnel to move quickly to remove a child when needed and determine how best to address the child's needs during these relatively brief periods of removal. The consultation by school personnel with at least one of the child's teachers does not require that a meeting be held." The USDOE has also stated that it is not necessary for the parent to be included in the determination of the extent to which the services are needed for a child who is removed for a short period of time. However, districts may, if they wish, include the parent in the decision.

If the removal is a change of placement, then the child's IEP Team determines the appropriate services. See 34 C.F.R. § 300.530(d)(5).

In Norfolk (VA) City Public Schools, the Office for Civil Rights ("OCR") received a complaint from a parent who alleged, among other things, that the District failed to implement the student's Section 504 plan while the student was assigned to a 15-day in-school suspension. 46 IDELR 21 (OCR, Southern Division, D.C. May 11, 2005). During the 2003-04 school year, the student was enrolled in the 11th grade at the public high school. During the period of February 4, 2004 through June 4, 2004, the Student had nine disciplinary infractions, served 15 days of in-school suspension ("ISS") and 8 days of out-of-school suspension. The District's ISS policy "is a structured alternative to out-of-school suspension that gives the students the opportunity to continue their education while experiencing the consequences of their actions and decisions." Students are given a discipline packet to complete; the students also work on schoolwork, if it has been provided by their teachers. Students are responsible for gathering assignments from teachers prior to reporting to their ISS. There were no policies pertaining implementing Section 504 plans for children assigned to ISS. In this case, the ISS teacher was not aware that the student had a Section 504 plan. OCR found that the plan was not being implemented and required that the District adopt a regulation regarding the implementation of Section 504 plans for students assigned to ISS.

2. Discipline when the Behavior is Not a Manifestation of the Child's Disability

If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability:

The interim alternative setting shall be determined by the IEP team. The manifestation meeting must take place within 10 school days of the decision to change the placement.

B. Defining a change of placement.

Section 300.536 states that "a change of placement occurs if - (a) the removal is for more than 10 consecutive school days; or (b) the child has been subjected to a series of removals that constitute a pattern - (1) because the series of removals total more than 10 school days in a school year; (2) because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and (3) because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another." The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change in placement.

C. Protection for children not yet eligible for special education services.

A child who is determined to be ineligible for special education services is generally not entitled to IDEIA protection. However, the IDEIA provides that the parents of the child may assert the protections of the IDEIA if the local education agency had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. The IDEIA goes on to establish standards for when a district has a "basis of knowledge." Section 300.534 of the regulations provides that a public agency "must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred -

The USDOE has opined that "[a] public agency will not be considered to have a basis of knowledge . . . merely because a child receives services under the coordinated, early intervening services . . . [unless] a parent or a teacher of a child receiving early intervening services expresses a concern, in writing, to appropriate agency personnel, that the child may need special education and related services."

A district is not deemed to have knowledge if the parent of the child has:

If a district is deemed not to have knowledge of a child's disability, then it may discipline the child as it disciplines any nondisabled child. The district, however, may not turn a blind eye to a child's needs even if it is determined not to have knowledge of a child's disability. If an evaluation is requested, the evaluation shall be conducted "in an expedited manner," but the child shall remain in the placement (including suspension or expulsion) determined by school authorities pending the results of the evaluation. If the results indicate that the child has an educational disability, then the child shall be offered special education and related services.

Return to Table of Contents

VI. Miscellaneous Provisions

A. Response To Intervention ("RTI")

1. Relevant Regulations

Section 300.307, Specific Learning Disabilities, revamps the criteria for a special learning disability. The new rule requires that a State must adopt consistent with the criterion for determining the existence of a specific learning disability, criteria for determining whether a child has a specific learning disability. The criteria adopted by the State:

(1) Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disabilitiy;

(2) Must permit the use of a process based on the child's response to scientific, research-based intervention; and

(3) May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability.

The LEA is then required to use the State criteria to determine whether a child has a specific learning disability.

Section 300.308, Additional group members, the determination of whether a child suspected of having a specific learning disability is a child with a disability must be made by the child's parents and a team of qualified processionals, which must include -

(1) The child's general education teacher; or if the child does not have a general education teacher, a general education teacher qualified to teach a child of the child's age; or for a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and

(2) At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher.

Section 300.309, Determining the existence of a specific learning disability, articulates three reasons why the "group" may determine that a child has a specific learning disability. They may do such if:

(1) The child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards:

(2) The child fails to make sufficient progress in meeting age or State-approved grade-level standards in one or more of the areas identified above when using a process based on the child's response to scientific, research-based intervention; or the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, and

(3) The group determines that its findings under either 1 or 2 above are not primarily the result of-

To ensure that the underachievement of a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider the following:

(1) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents.

Section 300.311, Specific documentation for the eligibility determination. For children suspected of having specific learning disabilities, the document of the determination of eligibility must contain a statement of the following:

This section also contains a new certification requirement that each group member shall certify in writing whether the report reflects his/her conclusion. When it does not reflect their conclusion, the group member must submit "a separate statement presenting his/her conclusions."

2. Implementing RTI

The National Research Center on Learning Disabilities (NRCLD, 2006) defines RTI as "an assessment and intervention process for systematically monitoring student progress and making decisions about the need for instructional modifications or increasingly intensified services using progress monitoring data." RTI encompasses general, remedial, and special education through a multi-tiered service delivery model.

RTI is used to monitor student progress in the general education curriculum. An RTI model includes high quality general education instruction, instruction that is research-based, continuous progress monitoring of student performance, and educational decision-making that is based on student performance data.

RTI has two goals: delivering evidenced-based interventions and using the students' response to those interventions as a basis for determining instructional needs and intensity. In order to achieve these goals, educators implementing RTI must ensure that the researched-based interventions and curriculum have demonstrated validity. Researched-based interventions and curriculum have demonstrated validity when:

Be wary of studies that claim that the intervention's effect on a sub-group (e.g. a minority group) is different than its effect on the overall population in the study

In addition, the following websites may assist you with finding researched-based interventions:

Documentation that RTI has been implemented should include information about the student's current level of performance (i.e. why RTI will be used), the interventions that were used, the duration of the interventions, the student's response to those interventions (i.e., what worked and what did not). A sample document has been included as Appendix A of these materials.

B. Who is a Parent?

Section 300.30 defines parent as

The definition also clarifies that when more than one of the above listed individuals is qualified to act as a parent, the biological or adoptive parent "must be presumed to be the parent . . . unless the biological or adoptive parent does not have legal authority to make educational decisions for the child." When a judicial decree or order identifies a specific person or persons to act as the parent or to make educational decisions on behalf of the child, then that person or person is deemed to be the parent.

A separate section of the regulations, Section 300.519, specifically pertains to surrogate parents. This regulation revises the former regulation concerning surrogate parents, and provides that the public agency must ensure that the rights of the child are protected when a parent cannot be identified, the public agency, after making reasonable efforts cannot locate a parent, the child is a ward of the State, or the child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act. The public agency is required to assign an individual to act as a surrogate, and must have a method for determining whether a child needs a surrogate parent and for assigning surrogate parents to children. The SEA must make reasonable efforts to ensure that a surrogate parent is assigned not more than 30 days after the public agency determines that the child needs a surrogate parent.

If the child is a ward of the state, the surrogate may be appointed by the judge overseeing the child's case, provided that the surrogate meets the requirements set forth in the regulations.

The regulations state that a public agency may select a surrogate parent in any way permitted under State law. The person selected as a surrogate must not be an employee of the SEA, the LEA, or any other agency involved in the education or care of the child; have no personal or professional interests that conflict with the interest of the child; and have knowledge and skills that ensure adequate representation of the child.

The USDOE has opined that students in State correctional facilities do not have an automatic right to a surrogate parent solely by reason of their confinement in a correctional facility. The determination as to whether a surrogate is necessary must be made on a case-by-case basis.

While not explicitly set forth in the statute, the Department of Education has relied on the Conference Report to insert a provision which allows a "temporary surrogate" to be provided for an unaccompanied homeless youth. The temporary surrogate may be "appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs. The temporary surrogate may be appointed until such time as a permanent surrogate has been appointed.

The surrogate parent may represent the child in all matters relating to the identification, evaluation, and educational placement of the child and the provision of FAPE to the child.

C. Mapping

Section 300.34 of the regulations defines related services. This definition has been revised in accordance with the IDEIA, and specifically includes interpreting services and school nurse services as related services.

The IDEIA was silent with regard to whether mapping is a related service. The definition in the regulations address this issue as follows: "[R]elated services do not include a medical device that is surgically implanted, the optimization of that device's functioning (e.g., mapping), maintenance of that device, or the replacement of that device." See 34 C.F.R. § 300.34(b)(1). However, "nothing in paragraph (b)(1) . . . [l]imits the right of a child with a surgically implanted device . . . to receive related services [described in section 300.34(a)] that are determined by the IEP team to be necessary for the child to receive FAPE." The public agency must also appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school.

The USDOE stated that "Although the cochlear implant must be properly mapped in order for the child to hear well in school, the mapping does not have to be done in school or during the school day to be effective. The exclusion of mapping from the definition of related services reflects the language in Senate Report (S. Rpt.) No. 108-185, p. 8, which states that the Senate committee did not intend that mapping a cochlear implant, or even the costs associated with mapping, such as transportation costs and insurance co-payments, be the responsibility of a school district. These services are incidental to a particular course of treatment chosen by the child's parents to maximize the child's functioning, and are not necessary to ensure that the child is provided access to education, regardless of the child's disability, including maintaining health and safety while in school."

Section 300.113 of the regulations requires the public agency to ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly. This section also requires that the public agencies ensure that the external components of surgically implanted medical devices are functioning properly.

Return to Table of Contents

Notes

1. Most of the citations in the new regulations are not the same as the citations in the former regulations. In some cases, the text of the new regulation is identical to the text in the former regulation, but the citations have changed. Unless otherwise noted, all citations to the Code of Federal Regulations ("C.F.R.") pertain to the new regulations.

2. Unless otherwise noted, all references to statements made by OSEP/USDOE were made in response to public comments on the regulations.

3. New Hampshire's charter school law, RSA 194-B et. seq., provides that "[t]he teaching staff of a charter school shall consist of a minium of 50 percent of teachers either New Hampshire certified or having at least 3 years of teaching experience." RSA 194-B:14, IV.

4. RSA 189:6 provides that "[t]he local school district shall furnish transportation to all pupils in grade 1 through grade 8 who live more than 2 miles from the school to which they are assigned. The local school board may furnish transportation to kindergarten pupils, pupils in grades above the eighth or to any pupils residing less than 2 miles from the school to which they are assigned, when it finds that this is appropriate, and shall furnish it when so directed by the commissioner of education."

5. Pursuant to RSA 189:8, "pupils entitled to transportation in accordance with RSA 189:6 may be required to walk a distance not to exceed one mile to a school bus stop established by the local school board. Pupils residing in areas which are inaccessible by a local school district's established mode of transportation may be required to walk a distance not to exceed 1- ½ miles to a school bus stop, provided that the vehicle, route and schedule have been approved by the commissioner of education. School districts shall assure that pupils shall not be subject to unsafe conditions while walking the required distance to a school bus stop and that the school bus stop is established in a safe location.."