IEP guide

SPECIAL EDUCATION IN NORTH DAKOTA
North Dakota Department of Public Instruction
Dr. Wayne G. Sanstead, State Superintendent
Office of Special Education
600 E. Boulevard Ave., Dept. 201
Bismarck ND 58505-0440

701-328-2277 (voice)
701-328-4920 (TDD)
701-328-4149 (Fax)

Guidelines:
Individualized Education Program
Planning Process

Dan Pangbourne/Getty Images

United States Department of Education, Office of Special Education Programs (OSEP))

NOTICE OF NON-DISCRIMINATION
NORTH DAKOTA DEPARTMENT OF PUBLIC INSTRUCTION

The Department of Public Instruction does not discriminate on the basis of race, color, national
origin, sex, disability, or age in its programs and activities. For inquires regarding
nondiscrimination policies, please contact: Robert Marthaller, Director of School District
Support Services, Department of Public Instruction, 600 E Boulevard Avenue, Dept 201,
Bismarck, ND 58505-0440, 701-328-2267.

Guidelines: Individualized Education Program Planning Process was produced by the Office of
Special Education, North Dakota Department of Public Instruction staff.

Lynn Dodge Brenda Oas Doreen Strode
Alison Dollar Robert Rutten Gerry Teevens
LaDawn Eisenbeis Colleen Schneider
Guy McDonald Nancy Skorheim
Mary McCarvel-O’Connor Michelle Souther

Appreciation is extended to the Mountain Plains Regional Resource Center (MPRRC) for technical
support.

“Unless otherwise specified, citations to “section” or “sec.” are citations to federal regulations
implementing IDEA found in the Code of Federal Regulations at 34 CFR Part 300, which
consists of 34 CFR secs. 300.1 through 300.818 and appendices A through E.”

CIVIL RIGHTS STATEMENT: In accordance with all regulations, guidelines and standards adopted by
the US Department of Education, the US Department of Agriculture and the ND Human Rights Act, the
ND Department of Public Instruction prohibits discrimination on the basis of age, gender, race, color,
religion, national origin, status with regard to marriage or public assistance, disability or political
beliefs. All divisions of the Department of Public Instruction will insure that no one is denied
participation in, or denied the benefits of, or subjected to discrimination under any department program
or activity.

Equal education opportunity is a priority of the ND Department of Public Instruction.

Publication Date: June 2007 Cover artwork: National Dissemination Center for Children with
Disabilities (NICHCY).

Guidelines: Individualized Education Program Planning Process

Table of Foreword ........................................................................................................................ 1
Contents Introduction .................................................................................................................... 2
SECTION I:
Purpose and Principles........................................................................................... 4
Children and Youth Who Are Eligible.................................................................... 5
Special Considerations in Eligibility for the IEP Process ................................... 7
Sequence of the IEP Process ................................................................................. 9
IEP Timelines ......................................................................................................... 10
Responsibility of Local School District............................................................... 14
Case Management Responsibilities .................................................................... 17
IEP Meeting Organizer .......................................................................................... 19
IEP Meeting Participants ...................................................................................... 21
IEP Meeting Excusal.............................................................................................. 31
SECTION II:
Components of the IEP Process and Document ................................................ 32
Consideration of Special Factors ........................................................................ 32
Present Levels of Academic Achievement and Functional Performance ....... 34
Secondary Transition Services ............................................................................ 37
Annual Goals ......................................................................................................... 39
Short-term Objectives or Benchmarks................................................................ 42
Characteristics of Services .................................................................................. 45
Periodic Review of Services ................................................................................. 46
Adaptations of Educational Services .................................................................. 46
Participation in District-wide and Statewide Assessments .............................. 48
ND State Assessment Participation Options ...................................................... 48
Description of Activities with Students Who Are Not Disabled ....................... 52
Other Educational Program Options Within the School Setting ...................... 54
Nonacademic and Extracurricular Services and Activities............................... 55
Least Restrictive Environment (LRE) .................................................................. 56
LRE Justification ................................................................................................... 57
LRE Considerations for Students Receiving Early Childhood
Special Education Services ............................................................................... 60
Special Education and Related Services ............................................................ 60
Related Services .................................................................................................... 61
Length of Day......................................................................................................... 63
Extended School Year........................................................................................... 63
SECTION III:
Instructions for Completing IEP Form ................................................................ 66

Guidelines: Individualized Education Program Planning Process 1

Foreword On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was
amended through Public Law (P.L.) 105-17. The guiding premise of the 1997
amendments built on the actions, experiences, information, facts and research
gathered since enactment of the Education of the Handicapped Act in 1975. The
IDEA 2004 emphasizes that an effective education system, now and in the future,
must maintain high academic standards and clear performance goals for children
with disabilities. Further, these standards and performance goals must be
consistent with those required for all students in the educational system. They
provide for appropriate and effective strategies and methods to ensure that
students with disabilities have maximum opportunities to achieve those standards
and goals. Accordingly, the IDEA 2004 provisions relating to evaluation and
individualized education programs place greater emphasis on the involvement and
progress of all children with disabilities in the general education curriculum.

The IDEA 2004 provides the opportunity for the Department of Public Instruction
to review and revise guidelines relating to the education of students with
disabilities in North Dakota schools. Input from personnel from all special
education units, parents, and other organizations and agencies was gathered and
carefully considered to provide a range of perspectives on this guideline
document.

Guidelines: Individualized Education Program Planning Process (June 2007)
was produced by the Office of Special Education, North Dakota Department of
Public Instruction.

2 Guidelines: Individualized Education Program Planning Process

Introduction Of the many acronyms used in special education none is as well known as “IEP.”
Educators and parents as well as many people in the general public know that if a
student has an IEP, an individualized education program, he/she is receiving
The IDEA 2004 special education and related services.
Reauthorization
and the IEP Guidelines: Individualized Education Program Planning Process (June 2007)
were developed by the North Dakota Department of Public Instruction to assist
Process educators who are developing IEPs for students with disabilities. Changes in the
Individuals with Disabilities Education Act (IDEA) resulting from the 2004
reauthorization of the federal special education law, and the publication of
accompanying final regulations in 2006 by the U.S. Department of Education,
prompted the revision of this document.

As defined in federal regulation 300.22 an individualized education program or
IEP means “a written statement for a child with a disability that is developed,
reviewed, and revised in accordance with 300.320 through 300.324.” It sounds
so simple. Yet the IEP process is the focus of intense work by millions of
educators, students and parents across America. A frequent criticism of the IEP
process is that it is unnecessarily detailed. However, because of the unique needs
of each child with a disability, there is a need to thoughtfully consider the special-
--individualized— needs of that child. The IEP is the process for a thoughtful
discussion of those needs and a documentation of the plan for that child to receive
a free and appropriate public education.

Guidelines: The Individualized Education Program Process (June 2007)
incorporates major themes of the 2004 reauthorization of the IDEA. In this
document you will see an increased emphasis on :
• Early intervention;
• Access to the general education curriculum;
• Scientifically based instruction;
• Paperwork reduction;
• Streamlining of the IEP process; and
• Caution related to disproportionality.

Throughout this document, quotes from the IDEA 2004 law, regulations and
other supportive documents are included and in some cases, the description of the
intent of Congress in making changes to the law. A significant effort has been
made at the federal level to make the law and regulations more understandable to
parents and school personnel.

Another feature of the IDEA 2004 and the final regulations is an increased
relationship between special education and the Elementary and Secondary
Education Act (ESEA). Perhaps nowhere is this more evident than in the
heightened accountability that is expected. The North Dakota State Performance
Plan for Special Education (SPP) is our six-year plan for improving the
educational results for all children with disabilities. There are 20 indicators and
each indicator detailed in the State Performance Plan contains information such
as baseline data, measurable and rigorous annual targets, and improvement
activities.


In 2005 the North Dakota Department of Public Instruction (NDDPI) began
collecting these data from each of the state’s school districts and from parent
surveys. This information is used to monitor and continuously improve both state
and school district activities thus improving results for all children with
disabilities. Please see Appendix A for the complete list of special education
performance indicators.

The North Dakota Department of Public Instruction is committed to assisting
educators and parents work together in the best interest of children and youth
who have disabilities. We share a common goal of improving the education of
young people who have disabilities so that they can be better prepared for
postsecondary education, employment, increased independence, and more
fulfilling lives.

Appendices that are attached present additional guidance for IEP teams.

The appendices includes the following materials:

A. State Performance Plan 2005-2010

B. Secondary Transition IEP Process and Forms
• Transition IEP Form (Ages 16-21)
• Instructions for Completing IEP Form
• Sample Parental Consent Form for Agency Invitation to IEP Meeting
• Sample Summary of Performance Form
• Sample Transfer of Rights Form

C. Consideration of Specific Student Needs
• Students who are blind or visually impaired
• Students who are deaf or hearing impaired
• Students with limited English proficiency
• Students who demonstrate behaviors which impede learning
• Students who may need assistive technology
• Students Ages 18-21

D. Use of Standards in the IEP process

E. Part 300 - IDEA Regulations
§ 300.24 Related Services

F. Extended School Year Services

G. OSEP IDEA 2004 Regulations Topical Papers


Section I The individualized education program, or IEP, is the result of a process that is
essential to ensure that individuals with disabilities have appropriate educational
THE planning to accommodate their unique instructional needs, and that these needs
INDIVIDUALIZED are met in an appropriate learning environment. Frequently the term is applied
EDUCATION only to the planning document, with limited emphasis given to the process itself.
PROGRAM (IEP) Yet it is vital that the IEP team members fully understand the process that will
PROCESS result in a plan that will guide the education of a child over the course of a full
school year.

Sec. 300.320 Definitions of individualized education program.
(a) General. As used in this part, the term individualized education program or
IEP means a written statement for each child with a disability that is developed,
reviewed, and revised in a meeting in accordance with §§300.320-300.324.

This section of the Guidelines: Individualized Education Program Process (June
2007) includes five components:
• an explanation of the purposes and principles underlying the IEP process;
• a description of children and youth who are eligible for the IEP process;
• a brief description of the sequence or “flow” of the process;
• identification of timelines that apply to the IEP process and planning
document; and
• a description of the roles and responsibilities of persons who will participate
in development, review, and revision of the IEP document.

Purposes and The IEP process serves multiple purposes. First, the IEP documents a child’s
Principles needs and services and how they affect involvement and progress in the general
Underlying the IEP education curriculum. A simple framework that organizes the IEP process is
Process based on three questions:

• What do we know about the child’s skills? This question is answered through
the present levels of academic achievement and functional performance.
• What are we going to do to help the student receive an appropriate education?
The IEP team addresses this question through the following components:
goals, adaptations, least restrictive environment, and special education and
related services.
• How will we know if we are succeeding? This is ultimately answered through
measurements based on the goals and, when appropriate, short-term
objectives of the IEP and other results of the total education experience.

The IEP should tailor The second purpose underlying the IEP process is its value in providing access to
the education to the procedural safeguards. It ensures that parents are informed active members in
child, not the child to the developing, reviewing and revising the annual educational plan for their child,
education. and in monitoring progress. The third purpose of the IEP process provides a
means of decision-making that is efficient and instructionally useful.


These three purposes are grounded in educational and legal principles. Foremost
among the underlying principles is the requirement that the appropriate
educational placement and the type, amount, and location of services must be
based on the child’s unique individual characteristics and not on the category of
disability. The documentation of the IEP process – the written plan - should be a
child-focused, working document used by all team members throughout the
duration of the year. Therefore, the process must reflect pertinent information on
the child’s present levels of academic achievement and functional performance
which are obtained from multiple sources including: (a) parent reports; (b)
general education-based interventions; (c) the child’s interests and abilities; and
(d) a comprehensive assessment following a special education referral.

In addition, an essential consideration is the extent to which the child’s
instructional needs can be met by general education staff in all environments with
or without assistance from special educators. Finally, children with disabilities are
to be educated with those who do not have disabilities to the maximum extent
appropriate, and should attend general education classes unless it is inappropriate
and otherwise indicated on the IEP.

Children and Youth The Individuals with Disabilities Education Improvement Act (IDEA 2004)
Who Are Eligible for requires that a free appropriate public education (FAPE) be made available to all
the IEP Process children and youth with a disability, ages 3 through 21.

Sec. 300.17 Free appropriate public education.
Free appropriate public education or FAPE means special education and related
services that-
(a) Are provided at public expense, under public supervision and direction, and
without charge;
(b) Meet the standards of the SEA, including the requirements of this part;
(c) Include an appropriate preschool, elementary school, or secondary school
education in the State involved; and
(d) Are provided in conformity with an individualized education program (IEP)
that meets the requirements of §§300.320-300.324

Sec. 300.306 (c) Determination of eligibility and educational need.
(1) In interpreting evaluation data for the purpose of determining if a child is a
child with a disability under §300.8, and the educational needs of the child,
each public agency must-
(i) Draw upon information from a variety of sources, including aptitude and
achievement tests, parent input, teacher recommendations, as well as
information about the child’s physical condition, social or cultural
background, and adaptive behavior; and
(ii) Ensure that information obtained from all of these sources is documented
and carefully considered.
(2) If a determination is made that a child has a disability and needs special
education and related services, an IEP must be developed for the child in
accordance with §§300.320-300.324.


The IDEA 2004 identifies and defines the specific disability categories that make
a child eligible. To be eligible for the IEP process, a child must have been
identified through the evaluation process as having one or more of the disabilities.
This process is described in Guidelines: Evaluation Process (June 2007), North
Dakota Department of Public Instruction.

Sec. 300.8 (a) General. (1) Child with a disability means a child evaluated in accordance
with §§300.304--300.311 as having intellectual disability, a hearing impairment
(including deafness), a speech or language impairment, a visual impairment
(including blindness), serious emotional disturbance (referred to in this part as
“emotional disturbance”), an orthopedic impairment, autism, traumatic brain
injury, an other health impairment, a specific learning disability, deaf-blindness,
or multiple disabilities, and who, by reason thereof, needs special education and
related services.

In addition to the eligibility categories listed above, the IDEA 2004 includes
regulatory language that allows states to identify younger children in need of
special education who are determined to have "developmental delays". In North
Dakota, the term non-categorical delay (NCD) is used, rather than developmental
delay (DD), for the purpose of avoiding confusion with the Developmental
Disabilities (DD) system in the Department of Human Services. Detailed
information regarding the approved state eligibility criteria can be found in the
North Dakota Guidelines: Identification and Evaluation of Students with Non-
categorical Delay for ages 3 through 9 (March 2007).

Sec. 300.8 Child with a disability.
(b) Children aged three through nine experiencing developmental delays. Child
with a disability for children aged three through nine (or any subset of that
age range, including age three through five), may, subject to the conditions
described in § 300.111(b), include a child--
(1) Who is experiencing developmental delays, as defined by the State and as
measured by appropriate diagnostic instruments and procedures, in one or
more of the following areas: physical development, cognitive
development, communication development, social or emotional
development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related services.


Children Turning Three. A child with a disability transitions from early
intervention services to early childhood special education services when the child
turns three. The individualized family services plan (IFSP) that is developed in
accordance with the IEP procedures, may continue to be used in lieu of an IEP if
the services identified in the IFSP continue to be appropriate. Because of the
importance of the IEP as the statutory vehicle for ensuring a free appropriate
public education (FAPE) to a child with a disability, it is important that the
parents give consent to continued use of an IFSP. An explanation of the
differences between an IFSP and an IEP must be provided to parents. The North
Dakota state guidelines document, Understanding Early Childhood Transition: A
Guide for Families and Professionals (August 2006), provides a comprehensive
description of these differences.

Sec. 300.323 When IEPs must be in effect.
(b) IEP or IFSP for children aged three through five.
(1) In the case of a child with a disability aged three through five (or, at the
discretion of the SEA a two-year-old child with a disability who will turn
age three during the school year), the IEP Team must consider an IFSP
that contains the IFSP content (including the natural environments
statement) described in section 636(d) of the Act, and its implementing
regulations (including an educational component that promotes school
readiness and incorporates pre-literacy, language, and at least three years
of age), and that is developed in accordance with the IEP procedures under
this part. The IFSP may serve as the IEP of the child, if using the IFSP as
the IEP is—
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child's parents.
(2) In implementing the requirements of paragraph (b)(1) of this section, the
public agency must—
(i) Provide to the child's parents a detailed explanation of the differences
between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent from
the parents.

Special Youth That Have Exited. Youth with disabilities who are not yet 21 years of age
Considerations in and have not graduated with a regular high school diploma are eligible for the IEP
Eligibility for the IEP process. The school district of residence is responsible for identifying, evaluating,
Process and providing services to eligible children and youth in this age group. The IDEA
2004 (300.102(a)(3) clarifies 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 the General Educational Development credential (G.E.D.).

Students who have exited a public or private school program through graduation
or because they have reached the age of 21 are no longer eligible for services
from school districts. However, community and state agencies such as Vocational
Rehabilitation, the Division of Developmental Disabilities, Job Service North
Dakota, Independent Living Centers, and others may be available to provide adult
services to young people with disabilities.


Children That Attend Private or Special Schools. Children and youth with
disabilities who attend private schools or other special schools, or are served in
residential schools, detention enters, correctional facilities, also remain eligible
for services under the IDEA 2004. For additional information on service provided
to students attending private schools see
http://www.dpi.state.nd.us/speced/guide/policy/1205paper.pdf .

Children who are home educated. Children and youth with disabilities who are
home educated may still be eligible for services under the IDEA 2004. More
information on home education can be found in North Dakota Century Code
Chapter 15.1-23.

Youth Incarcerated as Adults. If a young person is incarcerated in an adult
correctional facility, the school district of residence may not be required to
provide FAPE. That is, FAPE is not required if the person is not identified as
having a disability upon entry into the prison and does not have an IEP in place at
that time. However, this does not relieve the facility from inquiring about
educational services the person was receiving, or contacting school districts to
determine whether that person was identified as having a disability.

Sec. 300.324 FAPE requirements for students with disabilities in adult prisons.
(d) Children with disabilities in adult prisons
(1) Requirements that do not apply. The following requirements do not apply to
children with disabilities who are convicted as adults under State law and
incarcerated in adult prisons:
(i) The requirements contained in Section 612(a)(16) of the Act and §
300.320(a)(6) (relating to participation of children with disabilities in
general assessments).
(ii) The requirements in § 300.320(b) (relating to transition planning and
transition services) do not apply with respect to the children whose
eligibility under Part B of the Act will end, because of their age, before
they will be eligible to be released for early release.
(2) Modifications of IEP or placement.
(i) Subject to paragraph (d)(2)(ii) of this section, the IEP Team of a child
with a disability who is convicted as an adult under State Law and
incarcerated in an adult prison may modify the child’s IEP or placement
if the State has demonstrated a bona fide security or compelling
penological interest that cannot otherwise be accommodated.
(ii) The requirements of § 300.320 (relating to IEPs), and § 300.112 (relating
to LRE), do not apply with respect to the modifications described in
paragraph (d)(2)(i) of this section.


Sequence of the IEP These guidelines provide a logical decision-making sequence for developing the
Process IEP to meet all legal requirements. It is recommended that the process occurs in
the following order and the IEP document should reflect this sequence.

1. Present levels of academic achievement and functional performance are
written from referral, evaluation, achievement information, and progress in
the regular education curriculum. The information should be provided by
parents, teachers, the child, and other relevant contributors.

2. Consideration of special factors resulting from the student’s needs and the
impact these factors have on the student’s involvement and progress in the
general education curriculum.

3. At least one annual goal is stated for each of the needs identified by the IEP
team as a priority for that year. For students participating in the alternate
assessment each goal must also include a description of benchmarks or
short-term objectives.

4. The characteristics of services and adaptations necessary to accomplish each
goal/objective are determined. Accommodations to participate in the state
assessment should be comparable to the adaptations needed to accomplish
each goal.

5. A justification of the placement is written consistent with the principle of
least restrictive environment, including opportunities to participate and
progress in the general education curriculum and other school activities.

6. A description of the special education and related services to be provided.

Secondary Transition IEP sequence:

1. Measurable postsecondary goals based upon age appropriate transition
assessment information and the student’s preferences and interests is
developed or reviewed in relation to:
Education or Training;
Employment; and where appropriate
Independent Living Skills.

2. Present levels of academic achievement and functional performance are
written from referral, evaluation, including age-appropriate transition
assessment information, achievement information, and progress in the
regular education curriculum. The information should be provided by
parents, teachers, the student, and other relevant contributors. The
identification of the skills the student possesses and the skills still needed to
acquire in relation to the student desired postsecondary goals are critical to
the transition planning process.

3. Consideration of special factors resulting from the student’s needs and the
impact these factors have on the student’s involvement and progress in the
general education curriculum.


4. A course of study that directly relates to the student’s anticipated post
school goals and the student’s preferences and interests is developed or
reviewed.

5. For students who are 17, or who are turning 17 in this IEP term, discuss
the Transfer of Rights that will occur at the age of majority. The IEP must
include a statement that the student has been informed of the student’s
rights under IDEA and that the rights will transfer to the student on
reaching the age of majority.

6. A coordinated set of strategies/activities that are needed to help the
student achieve postsecondary goals in each of the following areas:
Instruction, community experiences, employment, adult living, related
services, and when appropriate acquisition of daily living skills and
functional vocational evaluation. Every activity or strategy identified must
directly relate to the student’s anticipated post school goals and the
student’s interests and preferences. Identify primary responsibility for
each activity (identify agencies/persons that will provide and pay for
services) and the timelines that specify the anticipated dates (school year)
for starting and completing each activity.

7. Develop annual IEP goals for special education services. For each
measurable postsecondary goal there must be at least one annual goal that
will help the student make progress towards the stated post-secondary
goal. For students participating in the alternate assessment each goal must
also include a description of benchmarks or short-term objectives.

8. The characteristics of services and adaptations necessary to accomplish
each goal are determined. Accommodations to participate in the state
assessment should be comparable to the adaptations needed to accomplish
each goal.

9. A justification of the placement is written consistent with the principle of
least restrictive environment, including opportunities to participate and
progress in the general education curriculum and other school activities.

10. A description of the special education and related services to be provided.

For more information on the Secondary Transition IEP sequence, please see
Appendix B.

IEP Timelines Specific requirements apply to timelines concerning when and how often an IEP
is to be developed or reviewed, including the IEP for an identified child who has
transferred from another school.

A meeting to develop the initial IEP for a child must be conducted within 30
calendar days from the date of the meeting during which it was determined that
the child has a disability. This determination will be noted in the integrated
written assessment report prepared by the evaluation team at that meeting.


Sec. 300.323 When IEPs must be in effect.
(a) General. At the beginning of each school year, each public agency must have
in effect, for each child with a disability within its jurisdiction, an IEP, as
defined in § 300.320.
(c) Initial IEPs; provision of services. Each public agency must ensure that—
(1) A meeting to develop an IEP for a child is conducted within 30 days of a
determination that the child needs special education and related services;
and
(2) As soon as possible following development of the IEP, special education
and related services are made available to the child in accordance with the
child’s IEP.

Following the special education unit’s policy and procedures, an IEP must be in
effect for each eligible child at the beginning of each school year. The IEP must
be implemented as soon as possible following the meeting at which the IEP was
developed. Exceptions to this are if (1) the meetings occur during the summer or a
vacation period, unless the child requires services during that period, or (2)
circumstances require a short delay (e.g., arranging transportation). However,
there can be no undue delay in providing special education and related services to
the child.

This requirement does not preclude temporarily placing an eligible child with a
disability in a program as part of the evaluation process – before the IEP is
finalized – to assist a school in determining the appropriate placement for the
child. However, it is essential that the temporary placement not become the final
placement before the IEP is finalized. Schools may develop an interim IEP for the
child that sets out the specific conditions and timelines for the trial placement. If
an interim IEP is developed the school should:
• Ensure that the parents agree to the interim placement before it is
carried out, and that they are involved throughout the process of
developing, reviewing, and revising their child’s IEP.
• Set a specific timeline (e.g., 30 days) for completing the evaluation,
finalizing the IEP, and determining the appropriate placement for the
child.
• Conduct an IEP meeting at the end of the trial period in order to
finalize the child’s IEP.

An IEP meeting must be initiated and conducted at least once every twelve
months. For example, if an initial IEP was developed on December 3, the
subsequent IEP must have been reviewed and revised by no later than December
2 of the following year. However, the IEP may be reviewed more frequently than
once every twelve months, if needed.


Sec. 300.324 (b)(1)(i) (b) Review and revision of IEPs—
(1) General. Each public agency must ensure that, subject to paragraphs (b)(2)
and (b)(3) of this section, the IEP Team—
(i) Reviews the child’s IEP periodically, but not less than annually, to
determine whether the annual goals for the child are being achieved;
and
(ii) Revises the IEP as appropriate to address—
(A) Any lack of expected progress toward the annual goals described
in § 300.320(a)(2), and in the general education curriculum, if
appropriate;
(B) The results of any evaluation conducted under § 300.303;
(C) Information about the child provided to, or by, the parents, as
described under § 300.305 (a)(2);
(D) The child’s anticipated needs; or
(E) Other matters.

It is important to note that the school district is responsible for determining when
it is necessary to conduct an IEP meeting. However, the parents of a child with a
disability may request an IEP meeting at any time. For example, if the parents
believe the child is not progressing satisfactorily or there is a problem with the
current IEP, it would be appropriate for the parents to request an IEP meeting. Or
if the parents question the adequacy of services that are provided while their child
is suspended for short periods of time, it would be appropriate to convene an IEP
meeting.

Similarly, if a child’s teacher believes that services are not appropriate for the
child, the teacher should follow the school's procedures with respect to either
calling a meeting with the parents or requesting that the school district hold
another IEP meeting to review the child’s IEP. For example, the child’s teacher
may see a need for increased modification of materials for the child in a specific
academic area. In this situation, it would be appropriate for the teacher to request
an IEP meeting.

IEP meetings may be conducted at any time during the school year. However, if
the IEP meeting is held prior to the beginning of the school year, the team must
ensure that the IEP contains the necessary specially designed instruction and
supplementary aids and services to ensure that the child’s IEP can be
appropriately implemented during the next school year. This is particularly
critical when the child moves from one school building into another, such as from
an elementary school into a middle school.

Sec. 300.324 (a)(6) Amendments. Changes to the IEP may be made either by the entire IEP team at an
IEP meeting, or as provided in paragraph (a)(4) of this section, by amending the
IEP rather than by redrafting the entire IEP. Upon request, a parent must be
provided with a revised copy of the IEP with the amendments incorporated.


Note: The IDEA 2004 allows parents and public agencies to agree to make amendments
The history of IDEA to a student’s IEP without conducting an IEP meeting. It is important that
makes it clear that personnel who are responsible for implementing the IEP are informed of these
there should be as changes as it relates to their responsibilities. Copies of the revised IEP
many meetings a year incorporating the amendments must be provided to the parents at their request.
as any one child should Amendments are not to be considered the annual review/revised IEP.
need.
This section allows a parent and a public agency to agree not to convene an IEP
team meeting to make changes to the child’s IEP, instead, to develop a written
document to amend or modify the child’s current IEP. This act does not place any
restrictions on the types of changes that may be made so long as the parent and
the public agency agree. The act does not require the agreement between the
public agency and the parent to be in writing.
8/14/06 Federal Register, Vol. 71, No. 156, page 46685.

If the goals, objectives, and characteristics of service are not meeting the child’s
needs, the case manager is responsible for reconvening the IEP team for review
and revision of the IEP. The team will identify alternative strategies to assure
achievement of goals by the end of the year.

When a child with an active IEP moves into a school building or school district
through transfer (i.e., the custodial parent becomes a resident in a different school
district or a different catchment area of the same school district) or open
enrollment (either within the same school district or across school district
boundaries), the services delineated in that IEP must be continued. If any
components to that IEP are questionable, such as placement or service delivery,
the school must establish a team and convene a meeting in a timely fashion to
address the questions. Revisions of the IEP as in deleting a related service that
was designated in the IEP cannot be made without the approval of the IEP team.
In other words, a reduction in occupational therapy services from 15 minutes
daily to 15 minutes twice a week would necessitate a team meeting. The existing
IEP cannot be ignored nor its implementation delayed because it was written
elsewhere.

A child with a disability remains eligible for special education:
• until it is determined that a disability no longer exists and/or that the child no
longer needs special education services;
• until the child exits services due to graduation with a diploma, or
• until he or she has attained 21 years of age or has not reached the age of 21
before September first of the year in which the individual turns 21.

If a student with a disability drops out of school and later re-enters, the school
district is obligated to review the IEP in a timely manner and continue services. If
a child with a disability exits special education services through a decision by the
IEP team (i.e., is dismissed from special education services) and later experiences
academic difficulties, the school district must follow requirements consistent with
those of an initial evaluation and initial IEP.


Responsibility of the
Local School District

Sec. 300.323 IEP Meetings
(d) Accessibility of child’s IEP to teachers and others. Each public agency must ensure
that-
(1) The child’s IEP is accessible to each regular education teacher, special education
teacher, related services provider, and any other service provider who is
responsible for its implementation; and
(2) Each teacher and provider described in paragraph (d)(1) of this section is
informed of-
(i) His or her specific responsibilities related to implementing the child’s IEP;
and
(ii) The specific accommodations, modifications, and supports that must be
provided for the child in accordance with the IEP.
(e) IEPs for children who transfer public agencies in the same State. If a child with a
disability (who had an IEP that was in effect in a previous public agency in the same
State) transfers to a new public agency in the same State, and enrolls in a new
school within the same school year, the new public agency (in consultation with the
parents) must provide FAPE to the child (including services comparable to those
described in the child’s IEP from the previous public agency), until the new public
agency either--
(1) Adopts the child’s IEP from the previous public agency; or
(2) Develops, adopts, and implements a new IEP that meets the applicable
requirements in § 300.320 through § 300.324.
(f) IEPs for children who transfer from another State. If a child with a disability (who
had an IEP that was in effect in a previous public agency in another State) transfers
to a public agency in a new State, and enrolls in a new school within the same
school year, the new public agency (in consultation with the parents) must provide
the child with FAPE (including services comparable to those described in the
child’s IEP from the previous public agency), until the new public agency—
(1) Conducts an evaluation pursuant to § 300.304 through § 300.306 (if
determined to be necessary by the new public agency); and
(2) Develops, adopts, and implements a new IEP, if appropriate, that meets
the applicable requirements in § 300.320 through § 300.324.
(g) Transmittal of records. To facilitate the transition for a child described in
paragraphs (e) and (f) of this section—
(1) The new public agency in which the child enrolls must take reasonable steps to
promptly obtain the child’s records, including the IEP and supporting
documents and any other records relating to the provision of special education
or related services to the child, from the previous public agency in which the
child was enrolled, pursuant to 34 CFR 99.31 (a)(2); and
(2) The previous public agency in which the child was enrolled must take
reasonable steps to promptly respond to the request from the new public
agency.


Sec. 300.112 Individualized education programs (IEP). The State must ensure that an IEP, or an
IFSP that meets the requirements of section 636(d) of the Act, is developed, reviewed,
and revised for each child with a disability in accordance with §§ 300.320 through
300.324, except as provided in § 300.300(b)(3)(ii).

Sec. 300.146 Responsibility of SEA. Each SEA must ensure that a child with a disability who is
placed in or referred to a private school or facility by a public agency— (a) Is provided
special education and related services—
(1) In conformance with an IEP that meets the requirements of §§ 300.320 through
300.325; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to education provided by
the SEA and LEAs including the requirements of this part, except for § 300.18 and §
300.156(c); and
(c) Has all of the rights of a child with a disability who is served by a public agency.

The responsibility of the local education agency, i.e., the school district and/or
special education unit of residence is to ensure that requirements for
development, review, revision, and monitoring of the IEP are met. This also
applies when a child with a disability attends a public or nonpublic school outside
the geographic boundaries of the school district or special education unit of
residence. When a child attends school outside the school district of residence, it
is essential that administrators agree on which entity will carry out specific tasks.
For example, while the school district of residence must ensure that an IEP is
reviewed annually, the serving school may agree to arrange and convene
meetings to develop the IEP and to prepare and distribute final copies of the
document. When a child receives services outside the school district of residence,
the administrator or designee from the school district of residence must be an
active participant in developing, reviewing and revising the IEP for that child.

Sec. 300.325 Private school placements by public agencies.
(a) Developing IEPs.
(1) Before a public agency places a child with a disability in, or refers a child to,
a private school or facility, the agency must initiate and conduct a meeting to
develop an IEP for the child in accordance with §§300.320 and 300.324.
(2) The agency must ensure that a representative of the private school or facility
attends the meeting. If the representative cannot attend, the agency must use
other methods to ensure participation by the private school or facility,
including individual or conference telephone calls.
(b) Reviewing and revising IEPs.
(1) After a child with a disability enters a private school or facility, any meetings
to review and revise the child's IEP may be initiated and conducted by the
private school or facility at the discretion of the public agency.
(2) If the private school or facility initiates and conducts these meetings, the
public agency must ensure that the parents and an agency representative—
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the IEP before those changes are
implemented.
(c) Responsibility. Even if a private school or facility implements a child's IEP,
responsibility for compliance with this part remains with the public agency and the
SEA.


When parents chose to enroll their child in a private school, either nonsectarian or
religiously affiliated, the student does not have the right to receive the special
education and related services the child would receive if enrolled in the public
school. Parentally placed private school students are entitled to some special
education and related services according to a proportionate share of funding based
on a consultative process for allocating that proportionate share. A specific set of
regulations are applied when children with disabilities are enrolled by their
parents in private schools. The term "services plan" is used in place of “IEP” for
parentally-placed children in private schools. IEP is an explicit term used in the
definition of FAPE (Free Appropriate Public Education), and parentally-placed
children with disabilities in religious or other private schools are not entitled to
FAPE in connection with their private school placement.

The services plan must meet the requirements for an IEP, including development,
review and revision, in order to ensure that the services are meaningfully related
to a child’s individual needs. For more information on private school placements
please see IDEA 2004 Students with Disabilities who Attend Private Schools,
December 2005 Policy Paper in Education.
http://www.dpi.state.nd.us/speced/guide/policy/1205paper.pdf

Sec. 300.138 Equitable Services provided.
(b) Services provided in accordance with a services plan.
(1) Each parentally-placed private school child with a disability who has been
designated to receive services under §300.132 must have a services plan that
describes the specific special education and related services that the LEA will
provide to the child in light of the services that the LEA has determined,
through the process described in §§300.134 and 300.137, it will make
available to parentally-placed private school children with disabilities.
(2) The services plan must, to the extent appropriate—
(i) Meet the requirements of §300.320, or for a child ages three through
five, meet the requirements of § 300.323(b) with respect to the
services
provided; and
(ii) Be developed, reviewed, and revised consistent with §§300.321
through 300.324.
(c) Provision of equitable services.
(1) The provision of services pursuant to this section and §§ 300.139 through
300.143 must be provided:
(i) By employees of a public agency; or
(ii) Through contract by the public agency with an individual, association,
agency, organization, or other entity.
(2) Special education and related services provided to parentally-placed private
school children with disabilities, including materials and equipment, must be
secular, neutral, and nonideological.

In addition, the local school district is responsible to initiate and conduct meetings
to develop, review, and revise services plans for private school children with
disabilities. The school district must also ensure that a representative of the
private school attends each meeting.


Sec. 300.137 Equitable Services determined.
a) No individual right to special education and related services. No parentally-placed
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.
(b) Decisions.
(1) Decisions about the services that will be provided to parentally-placed private
school children with disabilities under Sec. Sec. §§ 300.130 through 300.144
must be made in accordance with paragraph (c) of this section and Sec.
300.134(c).

(2) The LEA must make the final decisions with respect to the services to be
provided to eligible parentally-placed private school children with
disabilities.
(c) Services plan for each child served under §§300.130-300.144. If a child with a
disability is enrolled in a religious or other private school by the child’s parents and
will 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, in accordance with §300.138(b); and
(2) Ensure that a representative of the religious or other private school attends each
meeting. If the representative cannot attend, the LEA shall use other methods to
ensure participation by the religious or other private school, including individual or
conference telephone calls

Case Management Local policies and procedures identify the case manager. The case manager
Responsibilities arranges and convenes IEP meetings, maintains contact with parents, gathers
information from team members, and prepares and distributes the finalized
document. Typically, a special education provider is assigned case management
responsibility. However, other persons may fulfill that role, including building
administrators, counselors, general education personnel, or related services
providers. Supervisors are responsible for monitoring to ensure that required tasks
are completed in a timely fashion.

The case manager will inform team members of the upcoming IEP meeting using
the Prior Written Notice form. This form identifies the purpose and details of the
meeting, as well as the names of persons who have been invited to attend. A copy
of the Parental Rights for Public School Students receiving Special Education
Services: Notice of Procedural Safeguards (June 2007) is provided to parents
with this notice as required.

The case manager, or team meeting facilitator, must ensure that the
communication and accessibility needs of all IEP participants are accommodated
so they can be active participants in the process. For example, family members
may not be proficient in English or may use sign language, necessitating
additional services during the IEP meeting. In cases of limited cognitive ability,
assistance from trusted others and conducting the discussion at an appropriate
level will facilitate understanding and increase participation. Care must be taken
to convene meetings in locations that are physically accessible to team members
with mobility limitations.


The IDEA 2004 intends that all persons involved in the IEP process be active
participants. Each person fulfills an important role by bringing and sharing
critical information about the child, thoughtfully planning an effective
educational program with other team members, and implementing assignments.
Special education unit policy and procedures should be followed with regard to
participation in the IEP process, and implemented by the assigned case manager.

It is essential that school personnel on the IEP team participate in the
development of the IEP for a child. If attendance of any required team member is
not possible, the case manager must use alternate methods of ensuring the
consideration of that person’s input including IEP meeting excusal processes as
necessary. This may include receiving written information and/or interviewing
the person prior to the IEP meeting or involvement via conference call during the
meeting. Similarly, it is critical that the absent team member is informed of his or
her responsibilities in implementing the educational program as agreed to by the
team. Not attending the IEP meeting does not relieve the school personnel of
responsibility for implementing portions of the IEP assigned to that person. Each
of the child's teachers must be informed of his or her responsibilities related to
implementing the child's IEP and the specific accommodations, modifications,
and supports that are necessary for the student to participate in the general
education curriculum. The intent of the regulation is for regular education
teachers to fully understand how to help teach a student with disabilities.

NOTE:
Not attending the IEP meeting does not relieve the school personnel of
responsibility for implementing portions of the IEP assigned to that person.

The IEP case manager will serve as the lead team member responsible for
adherence to federal and state regulations while implementing local procedures
within the special education process. In addition, the case manager often fulfills
the role of facilitator during the IEP team meeting.

The IEP process is a mechanism to enhance the connection between instruction
and improved results for children with disabilities. This goal can be achieved if
all members of the IEP team feel a sense of ownership for the process. Merely
convening an IEP team does not ensure that a group of people will collaborate in
order to achieve success for the child. A team must be committed to working
together and also recognize that some procedures are necessary for effective IEP
team operation. (Adapted from IEP Connections, Kukic & Schrag, 1998).

An efficient and well-organized IEP team facilitator, whether it is the assigned
case manager or another member of the team, will assist the team throughout the
IEP process. A suggested IEP Meeting Organizer follows. The IEP Meeting
Organizer includes reminders for:
• completion of procedural safeguard requirements before the meeting;
• steps to be followed during the IEP planning process; and
• continuing case management responsibilities following the meeting.


IEP Meeting Prior to the Meeting
Organizer
‫ـ‬ Contact parents regarding a convenient meeting date.
‫ـ‬ Obtain parental consent to invite representatives from collaborating agencies to
attend IEP meeting.
‫ـ‬ Prior Written Notice of the meeting sent to parent with copy of procedural
safeguards document as necessary.
‫ـ‬ All attempts to contact parent would be documented.
‫ـ‬ IEP excusal processes if necessary
‫ـ‬ Collect all data needed for the planning and decision making process.

Steps During the IEP Meeting

Introduction

Purpose of meeting.
Beliefs about IEPs to reiterate the importance of family involvement in the IEP
process.
Roles and relationships of participants/confidentiality issues.
Introduce secondary transition planning if appropriate.

Present Levels of Academic Achievement and Functional Performance

Describe student strengths, preferences, and needs and how they relate to and
affect the general education program. Include academic achievement, functional
performance, social behaviors, preferences, interests and extracurricular
activities. For students with a transition plan, discuss what academic and
functional skills the student possesses and what skills he or she must acquire to
reach their postsecondary goals. Include information from age appropriate
transition assessments.
Describe how the student's disability affects participation in the general education
program. Include student's participation in state and district assessment programs.
Describe how student's disability affects participation in age appropriate
activities.

Considerations of Special Factors

If appropriate, the following items must also be considered and documented:
Braille instruction training and orientation and mobility training must be
considered for the student with visual impairment.
In the case of a child with limited English proficiency, language needs of the
student must be considered as these needs relate to the IEP.
If the child (other than a child with deafness or hard of hearing) has
communication needs that hinder learning, those needs must be addressed.
If behavior impedes the student's learning, appropriate positive behavior
strategies must be developed and a written plan attached to the IEP.
If the child has a hearing impairment, communication needs must be
considered.


Long Range Planning

Discuss postsecondary goals and transition services needed to assist student in
meeting those goals. Required for students age 16 or older.
Discuss transfer of rights no later than 1 year before student turns 18.

Developing the Annual Plan

Special education is specially designed instruction to meet the unique needs of a
student. To make appropriate decisions regarding services, the IEP team must
have an understanding of the general education curriculum, scope and sequence
of courses, extracurricular activities, teacher expectations and instructional
strategies.
To complete the annual plan, the IEP team must discuss and answer the
question "what supports and program modifications are needed for the student
to participate in the general education curriculum?" The IEP team should
capitalize on the student's strengths while considering changes to the
curriculum and supports the student will need to learn.
Measurable annual goals will be developed to meet the unique needs of the
student.
In addition to measurable annual goals, short term objectives must also be
developed for those students taking alternate assessment
The type and amount for each special education and related service to be
provided to the student must be addressed in the IEP as to be clear to all
participants and persons involved with the student.

The following items must be discussed and documented for all students:

Strengths of the student, concerns of the parents for enhancing the education
of their child, the results of the initial evaluation or most recent evaluation, the
communication needs of the student, and whether the student requires
assistive technology devices and services.
Eligibility for the Extended School Year Services must be determined by the
IEP team.

Reporting Progress

Determine how to measure progress on annual goals and objectives utilizing
such methods as, but not limited to, curriculum based assessment, systematic
observations, general education grades, and performance assessment.
Decide how regular and periodic progress reports will be communicated to the
parent utilizing such methods as, but not limited to, written reports or parent
conferences.
Decide the frequency of the progress reports

Least Restrictive Educational Environment for Student/Placement

Decide the proper placement considering the regular education classroom first
and only then other options.

Give a completed copy of the IEP to the Parents.


IEP Meeting The specific roles and responsibilities of each required participant are detailed in
Participants this section.

Sec. 300.321 IEP Team
(a) General. The public agency must ensure that the IEP Team for each child with a
disability includes-
(1) The parents of the child;
(2) Not less than one regular education teacher of the child (if the child is, or may
be, participating in the regular education environment);
(3) Not less than one special education teacher of the child, or where appropriate,
not less then one special education provider of the child;
(4) A representative of the public agency who--
(i) Is qualified to provide, or supervise the provision of, specially
designed instruction to meet the unique needs of children with
disabilities;
(ii) Is knowledgeable about the general education curriculum; and
(iii) Is knowledgeable about the availability of resources of the public
agency.
(5) An individual who can interpret the instructional implications of evaluation
results, who may be a member of the team described in paragraphs (a)(2)
through (a)(6) of this section;
(6) At the discretion of the parent or the agency, other individuals who have
knowledge or special expertise regarding the child, including related services
personnel as appropriate; and
(7) Whenever appropriate, the child with a disability.
(b) Transition services participants.
(1) In accordance with paragraph (a)(7) of this section, the public agency must
invite a child with a disability to attend the child's IEP Team meeting if a
purpose of the meeting will be the consideration of the postsecondary goals
for the child and the transition services needed to assist the child in reaching
those goals under Sec. 300.320(b).
(2) If the child does not attend the IEP Team meeting, the public agency must
take other steps to ensure that the child's preferences and interests are
considered.
(3) To the extent appropriate, with the consent of the parents or a child who has
reached the age of majority, in implementing the requirements of paragraph
(b)(1) of this section, the public agency must invite a representative of any
participating agency that is likely to be responsible for providing or paying
for transition services.
(c) Determination of knowledge and special expertise. The determination of the
knowledge or special expertise of any individual described in paragraph (a)(6) of this
section must be made by the party (parents or public agency) who invited the
individual to be a member of the IEP Team.
(d) Designating a public agency representative. A public agency may designate a public
agency member of the IEP Team to also serve as the agency representative, if the
criteria in paragraph (a)(4) of this section are satisfied.


Parents The parents of a child with a disability are equal and active participants with
school personnel in developing, reviewing, and revising the IEP. Parents play an
equal, active role in IEP planning by providing critical information about their
child’s abilities, interests, performance, and history.

Sec. 300.30(a) (a) Parent means--
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless State law, regulations, or contractual obligations with
a State or local entity prohibit a foster parent from acting as a parent;
(3) A guardian generally authorized to act as the child's parent, or authorized to
make educational decisions for the child (but not the State if the child is a
ward of the State);
(4) An individual acting in the place of a biological or adoptive parent (including
a grandparent, stepparent, or other relative) with whom the child lives, or an
individual who is legally responsible for the child's welfare; or
(5) A surrogate parent who has been appointed in accordance with Sec. 300.519
or section 639(a)(5) of the Act.
(b) (1) Except as provided in paragraph (b)(2) of this section, the biological or
adoptive parent, when attempting to act as the parent under this part and
when more than one party is qualified under paragraph a of this section to act
as a parent, must be presumed to be the parent for the purpose of this section
unless the biological or adoptive parent does not have legal authority to make
educational decisions for the child.
(2) If a judicial decree or order identifies a specific person or persons under
paragraphs (a)(1) through (4) of this section to act as the “parent” of a child
or to make educational decisions on behalf of a child, then such person or
persons shall be determined to be the “parent” for purposes of this section.

The IEP process serves as a communication vehicle between parents and school
personnel. It enables them, as equal participants, to make joint, informed
decisions regarding:
• the child’s needs and appropriate goals;
• the extent to which the child will be involved in the general curriculum and
participate in the general education environment and in statewide and district-
wide assessments; and
• the services needed to support that involvement and participation and to
achieve agreed-upon goals.

Regulations state that if neither parent can be convinced to attend an IEP meeting,
the school may conduct the meeting without them. However, the school must use
other methods to ensure parent participation and consideration of their input.
Regulations allow for alternative methods of participation such as video
conferencing, conference calls, etc. Special education unit policy and procedures
should be consulted for a description of the nature and number of contacts that
must be attempted before determining that parent attendance is not possible, as
well as the documentation required.


Additional prior written notice requirements apply when secondary transition
planning is a topic to be discussed at an IEP meeting. Parents are to be informed
in advance that transition issues will be discussed at the IEP meeting, thus
providing them with the opportunity to prepare for the discussion. They may also
want to invite individuals who have knowledge or special expertise regarding the
student as he or she transitions into adult life. By knowing that their son or
daughter will be invited, parents have an opportunity to discuss transition goals
and activities with their child, and to ask school personnel to utilize strategies for
maximizing the student’s participation in the IEP meeting.

Sec. 300.322 Parent Participation
(a) Public agency responsibility-general. Each public agency must take steps to ensure that
one or both of the parents of a child with a disability are present at each IEP Team
meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that they will have an
opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents.
(1) The notice required under paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who will be
in attendance; and
(ii) Inform the parents of the provisions in Sec. 300.321(a)(6) and (c)
(relating to the participation of other individuals on the IEP Team who
have knowledge or special expertise about the child), and Sec.
300.321(f) (relating to the participation of the Part C service coordinator
or other representatives of the Part C system at the initial IEP Team
meeting for a child previously served under Part C of the Act).
(2) For a child with a disability beginning not later than the first IEP to be in effect
when the child turns 16, or younger if determined appropriate by the IEP Team,
the notice also must--
(i) Indicate--
(A) That a purpose of the meeting will be the consideration of the
postsecondary goals and transition services for the child, in
accordance with Sec. 300.320(b); and
(B) That the agency will invite the student; and
(ii) Identify any other agency that will be invited to send a representative.
(c) Other methods to ensure parent participation. If neither parent can attend an IEP Team
meeting, the public agency must use other methods to ensure parent participation,
including individual or conference telephone calls, consistent with Sec. 300.328 (related
to alternative means of meeting participation).
(d) Conducting an IEP Team meeting without a parent in attendance. A meeting may be
conducted without a parent in attendance if the public agency is unable to convince the
parents that they should attend. In this case, the public agency must keep a record of its
attempts to arrange a mutually agreed on time and place, such as--
(1) Detailed records of telephone calls made or attempted and the results of those
calls;
(2) Copies of correspondence sent to the parents and any responses received; and
(3) Detailed records of visits made to the parent's home or place of employment and
the results of those visits.
(e) Use of interpreters or other action, as appropriate. The public agency must take
whatever action is necessary to ensure that the parent understands the proceedings of the
IEP Team meeting, including arranging for an interpreter for parents with deafness or
whose native language is other than English.
(f) Parent copy of child's IEP. The public agency must give the parent a copy of the child's
IEP at no cost to the parent.


Regular Education All regular education teachers currently involved or likely to be involved in the
Teachers child’s educational program must be notified of the IEP meeting. All teachers
responsible for implementing the IEP are responsible for participating in
discussions about how best to teach the child.

Not less than one regular education teacher must be in attendance at the IEP
meeting unless appropriate IEP meeting excusal processes have been followed.
This involvement is especially important during the discussion of what and how
the child’s performance in the classroom, the child’s interaction with peers, the
least restrictive environment, and the modifications that would allow the child to
be served in the least restrictive setting.

Sec. 300.324 Development of IEP.
(3) Requirement with respect to regular education teacher. A regular education
teacher of a child with a disability, as a member of the IEP team, must, to the
extent appropriate, participate in the development of the IEP of the child,
including the determination of--
(i) Appropriate positive behavioral interventions and supports and other
strategies for the child; and
(ii) Supplementary aids and services, program modifications, and support
for school personnel consistent with § 300.320(a)(4).

Regular education teachers have expertise in education standards, curriculum and
classroom environment. They share expectations specific to their classrooms, as
well as methods, materials and accommodations currently used. Additionally,
they bring to the IEP team a rich understanding of typical child development and
behavior. Regular educators enrich the IEP process by helping the team maintain
age appropriate expectations. Consideration should be given to developmental,
academic, instructional, emotional, behavioral, and social issues.

In the case of a child whose behavior impedes his/her learning or that of others,
the IEP team must address that behavior by considering appropriate positive
behavioral interventions, strategies, and supports. The regular education
teacher(s) must, to the extent appropriate, participate in discussions about how
best to teach the child with such behavior problems and what supports are needed
in the general education classroom to assist the child.


The regular education teacher serving on the IEP team should be the teacher who
is, or may be, responsible for implementing a portion of the IEP. If a child with a
disability has more than one regular education teacher, one of the teachers is
required to serve as an IEP team member. However, if the participation of more
than one teacher would be beneficial to the child's success in school, it may be
appropriate for those teachers to attend as participating members of the team.

If a child has more than one regular education teacher, the district may designate
The IEP for each child which teacher or teachers will be on the IEP team. In a situation where not all of
with a disability, the child's teachers are IEP team members, the district is strongly encouraged to
regardless of the nature seek input from all teachers who will not be attending the IEP meeting.
and severity of the
disability and the setting The school should consider various alternatives to fulfill the regular education
in which the child is team member requirement in special circumstances. For a child who is not with a
educated, must address regular education teacher for any portion of the school day, a regular education
how the child will be teacher for the appropriate grade and/or subject area must be involved in the
involved and progress in decision-making at the meeting.
the general curriculum.
For a child who is five years of age and served in a preschool or Early Childhood
Special Education (ECSE) program, a kindergarten teacher from the
neighborhood elementary school is expected to be a team member. For a child
who is younger than five years of age and who is served in a preschool or ECSE
program, the team will include a community preschool teacher or childcare
provider, Head Start teacher, or similar early childhood educator.

For students who are 18-21 years of age, the role of the regular education
representative could be assumed by an adult services provider, employer,
guidance counselor, or other persons who are involved in work, community-based
experiences, or career counseling. For example, some students spend a greater
portion of their school day at a work site in the community. In this instance, the
employer or job coach may have more relevant information to share regarding
learning needs and progress than a regular educator. Therefore, that person would
be considered a knowledgeable team member regarding the community setting.
Likewise, depending upon the student's long range goals, a counselor may be the
most appropriate person to address postsecondary opportunities and planning and
should be part of the students’ IEP team.

Special Education Not less than one special education service provider with knowledge of the
and Related Service child’s needs must attend the IEP meeting. When the child has more than one
Providers disability, consideration should be given to including persons with knowledge and
training in each area of disability.


Sec. 300.321 IEP team.
(3) Not less than one special education teacher of the child, or where appropriate,
not less than one special education provider of the child.

Special education and related service providers bring expertise to the team
regarding the specialized instruction, adaptations and accommodations needed to
help the child benefit from his/her education. They help the team focus on the
system of necessary supports that will allow the child to participate in the general
education curriculum as much as possible. Further, these persons will help the
team build on the child’s strengths as compared with the past practice of focusing
on limitations imposed by the disability.

The IDEA 2004 does not expressly require that the IEP team include related
service personnel as members. However, it is appropriate for those persons with
knowledge or expertise regarding the child, including related services personnel,
to be included in the IEP meeting. Regulations provide that the IEP team also
includes at the discretion of the parent or the agency, other individuals who have
personnel as appropriate.

(6) At the discretion of the parent or the agency, other individuals who have
personnel as appropriate; and
knowledge or special expertise of any individual described in paragraph
(a)(6) of this section must be made by the party (parents or public agency)
who invited the individual to be a member of the IEP.

Representative of An LEA representative must attend the IEP meeting or send a designee who is
the Local Education able to act on her or his behalf. Each school district may determine which specific
Agency staff member will serve as the school representative in a particular IEP meeting,
so long as the individual meets the requirements in §300.321. It is important that
the LEA representative have the authority to commit district resources and be
able to ensure that whatever services are set out in the IEP will actually be
provided. In addition, the administrative representative may serve as the team
member who is knowledgeable about the general education curriculum. For a
child with a speech/language disability who requires only a limited amount of
special education, the school representative who is able to commit appropriate
resources could be a speech-language pathologist.


(4) A representative of the public agency who -
(i) Is qualified to provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with disabilities;
(ii) Is knowledgeable about the general education curriculum; and
(iii) Is knowledgeable about the availability of resources of the public
agency;

Evaluation If the team is planning for a child who has been evaluated for the first time,
Personnel evaluation personnel must also be in attendance. This may include (1) a member
of the team who evaluated the child, or (2) an administrator, the child’s teacher,
or some other person who is knowledgeable about the evaluation procedures used
with the child and is familiar with the results. This person must have experience
in interpreting evaluation data for the suspected disability area. If more than one
disability is determined, persons knowledgeable in each disability area should be
included.

(5) An individual who can interpret the instructional implications of evaluation
results, who may be a member of the team described in paragraphs (a)(2)
through (6) of this section;

Other Participants The IEP team may, at the discretion of the parent or school district, include other
individuals who have knowledge or special expertise regarding the child.
Attendance at the IEP meetings should be limited to those who have a legitimate
interest in the child.

In certain situations, the participation of a sibling or peer/friend who can offer
emotional support and share information about interests or the generalization of
skills is appropriate and desirable. In such cases it is important to discuss and
verify confidentiality requirements for the additional person.

knowledge or special expertise of any individual described in paragraph (a)(6) of
this section must be made by the party (parents or public agency) who invited the
individual to be a member of the IEP Team.


Student Student attendance at IEP meetings is encouraged when appropriate. Students
need to be informed of the purpose and role of their IEP team, as well as the
protocol of the meeting. By attending the IEP meeting, student benefits include:
an understanding of the disability and its educational implications; the experience
of teamwork; the opportunity to self-advocate about decisions that affect his or
her future; and developing ownership for activities and goals in his or her IEP.

The student, parents, and other IEP team members should cooperatively
determine the contribution and duration of student participation during the
meeting. The practice of students taking an active role in the IEP meeting
encourages professionals and parents to develop strategies to ensure students are
given an active role in the planning of their educational program and future. In a
student's absence, the team must present, discuss, and document information
regarding interests, preferences, and long range planning.

(7) Whenever appropriate the child with a disability

Secondary Student invitation to the IEP meeting is required when the purpose of the meeting
Transition will be the consideration of the postsecondary goals of the student and the
Participants transition services needed to assist the student in reaching those goals. The
student's preferences and interests must always be considered when designing and
developing transition services. In most instances the most appropriate person to
express those interests and preferences is the student. If the student does not
attend the IEP meeting the school must ensure that the student’s preferences and
interests are considered when the IEP is developed.

(b) Transition services participants.
(1) In accordance with paragraph (a)(7) of this section, the public agency
must invite a child with a disability to attend the child’s IEP Team
meeting if a purpose of the meeting will be the consideration of the
postsecondary goals for the child and the transition services needed to
assist the child in reaching those goals under § 300.320(b).
(2) If the student does not attend the IEP meeting, the public agency shall
take other steps to ensure that the child's preferences and interests are
considered.


Invitation and involvement of representatives from agencies responsible for
providing or paying for transition services reflects an understanding that the
school alone cannot plan for nor provide everything that a student may need as he
or she moves from school into the adult world. Interagency cooperation reinforces
the coordination of services among agencies and provides a sense of shared
responsibilities to help the student make a successful transition and to reach their
desired postsecondary goals. This places responsibility on school personnel to
become knowledgeable about the services and policies of local and regional
community agencies. Students benefit when agencies interact with the students
when they are still in school. Referrals made during the junior year identify the
adult service providers responsible to assist the student following high school and
assures seamless and timely continued services. These agencies may include:
vocational rehabilitation, independent living centers, employment and training,
mental health, developmental disabilities, college or university disability services,
and others relevant to the individual needs and preferences of the student. The
IDEA 2004 requires that parental consent be obtained prior to inviting agency
representatives. If the participating agency fails to provide the services agreed
upon in the IEP the LEA responsible for the student’s education shall, as soon as
possible, initiate a meeting for the purpose of identifying alternative strategies to
meet the transition objectives.

(3) To the extent appropriate, with the consent of the parents or a child who has
reached the age of majority, in implementing the requirements of paragraph (b)(1)
of this section, the public agency must invite a representative of any participating
agency that is likely to be responsible for providing or paying for transition
services.

Development of IEP
(c) Failure to meet transition objectives.
(1) Participating agency failure. If a participating agency, other than the public
agency, fails to provide the transition services described in the IEP in
accordance with § 300.320(b), the public agency must reconvene the IEP
Team to identify alternative strategies to meet the transition objectives for the
child set out in the IEP.
(2) Construction. Nothing in this part relieves any participating agency, including
a State vocational rehabilitation agency, of the responsibility to provide or pay
for any transition service that the agency would otherwise provide to children
with disabilities who meet the eligibility criteria of that agency.

Private school If a child with a disability is enrolled in a private school or facility, the public
placements by school district must ensure that a representative of the nonpublic school attends
public agencies each IEP meeting. If the representative cannot attend, the public school district
must use other methods to ensure participation by the nonpublic school, including
individual or conference telephone calls. For additional information on private
school placements see IDEA 2004 Students with Disabilities who Attend Private
Schools, December 2005 Policy Paper in Education.
http://www.dpi.state.nd.us/speced/guide/policy/1205paper.pdf


Sec. 300.325 Private school placements by public agencies.
(a) Developing IEPs.
(1) Before a public agency places a child with a disability in, or refers a
child to, a private school or facility, the agency must initiate and
conduct a meeting to develop an IEP for the child in accordance with
§§300.320 and 300.324.
(2) The agency must ensure that a representative of the private school or
facility attends the meeting. If the representative cannot attend, the
agency must use other methods to ensure participation by the private
school or facility, including individual or conference telephone calls.
(b) Reviewing and revising IEPs.
(1) After a child with a disability enters a private school or facility, any
meetings to review and revise the child’s IEP may be initiated and
conducted by the private school or facility at the discretion of the
public agency.
(2) If the private school or facility initiates and conducts these meetings,
the public agency must ensure that the parents and an agency
representative-
(i) Are involved in any decision about the child’s IEP; and
(ii) Agree to any proposed changes in the IEP before those changes
are implemented.

IDEA Part C For a child who is transitioning from Part C services for children ages birth to
Participation three, a Part C representative must be invited to the child’s initial IEP meeting.
The parents of the child must request their representation at the meeting.
Participation of a Part C representative will assist in assuring a smooth transition
of services.

(f) Initial IEP Team meeting for child under Part C. In the case of a child who
was previously served under Part C of the Act, an invitation to the initial IEP
Team meeting must, at the request of the parent, be sent to the Part C service
coordinator or other representatives of the Part C system to assist with the smooth
transition of services.


IEP Meeting Excusal The IDEA 2004 defines two situations and processes to follow when a required
IEP team member is unable to attend a student’s IEP meeting. The IDEA 2004
states that the attendance of specific IEP team members is required unless parents
and the local education agency (LEA) agree or consent in writing to the
occasional absence of a team member. The required members of the IEP team
that would necessitate excusal if they were unable to attend are:
• General Education Teacher;
• Special Education Teacher;
• LEA Representative; and
• Individual who can interpret the instructional implications of
evaluation results. The IDEA 2004 defines the two situations
regarding excusal with the following:
1. The parent and school district may agree in writing to excuse an IEP
team member whose area of curriculum or related service is not being
modified or discussed at the meeting.
2. The parent and the school district may consent in writing to excuse an
IEP team member whose area of curriculum or related service is being
modified or discussed at the meeting, if the member submits input in
writing to the IEP team before the meeting.
A flow chart clarifying the process that a case manager would complete to
excuse a member of the IEP team is found in Help Section of Tienet.

Sec. 300.321 IEP Team.
(e) IEP Team attendance.
(1) A member of the IEP Team described in paragraphs (a)(2) through
(a)(5) of this section is not required to attend an IEP Team meeting, in
whole or in part, if the parent of a child with a disability and the public
agency agree, in writing, that the attendance of the member is not
necessary because the member's area of the curriculum or related
services is not being modified or discussed in the meeting.
(2) A member of the IEP Team described in paragraph (e)(1) of this
section may be excused from attending an IEP Team meeting, in
whole or in part, when the meeting involves a modification to or
discussion of the member's area of the curriculum or related services,
if--
(i) The parent, in writing, and the public agency consent to the excusal;
and
(ii)The member submits, in writing to the parent and the IEP Team,
input into the development of the IEP prior to the meeting.


Section II This section of the guidelines describes the components of the IEP, sets out the
purposes of each component, details any special considerations for the
COMPONENTS components, and provides examples of how the component might be addressed in
OF THE IEP an IEP. The organizing questions for the IEP process are repeated here.
PROCESS AND • What do we know about the child?
DOCUMENT • What are we going to do to help the child receive an appropriate
education?
• How will we know if the child is succeeding?

The following concepts that underlie the IEP process are set out in the IDEA
2004.
(1) the involvement and progress of each child with a disability in the general
curriculum including addressing the unique needs that arise out of the
child's disability,
(2) the involvement of parents and students together with general and special
education personnel, in making individual decisions to support each
student's (child's) educational success, and
(3) the preparation of students with disabilities for employment and other
post-school activities.

Taken together, the questions to consider and the concepts in the IDEA 2004
provide the framework for developing IEPs for children with disabilities. The
remainder of this section details how the questions and concepts are implemented
in each component of the North Dakota IEP process.

Consideration of To assist team members in the development of an appropriate IEP, a series of
Special Factors questions to consider regarding specific student needs due to special factors are
included on the IEP form. Please see Appendix C for further information on
Consideration of Specific Student Needs.

• When the student’s behavior impedes his/her learning or the learning
of others, the IEP team must consider the use of positive behavioral
interventions and supports and other strategies to address that
behavior;
• When assessment results indicate the student is a student with limited
English proficiency, the IEP team must consider the language needs
of the student as those needs relate to the student’s IEP;
• When a student is blind or visually impaired the team must provide
for instruction in Braille and the use of Braille unless the IEP team
determines through evaluation that instruction in Braille or the use of
Braille is not appropriate for the student;
• When a student other than a student who is deaf or hard of hearing,
has communication needs that hinder learning, these needs must be
addressed.
• When a student is deaf or hard of hearing the team must consider the
student’s language and communication needs and opportunities for
direct interaction with others in the child’s own language and
communication mode; and
• The IEP team must consider assistive technology devices and services
for all areas related to the student’s academic and functional
performance.


Consideration of these special factors is essential in the discussion of present
levels of academic achievement and functional performance. IEP team members
will be better able to develop meaningful goals and other components of the IEP
if these factors that could impede learning are fully considered.

Sec. 300.324 Development of IEP.
(2) Consideration of special factors. The IEP team must -
(i) In the case of a child whose behavior impedes the child’s learning or that of
others, consider, the use of positive behavioral interventions and supports, and
other strategies, to address that behavior;
(ii) In the case of a child with limited English proficiency, consider the language
needs of the child as those needs relate to the child's IEP;
(iii) In the case of a child who is blind or visually impaired, provide for instruction
in Braille and the use of Braille unless the IEP team determines, after an
evaluation of the child's reading and writing skills, needs, and appropriate
reading and writing media (including an evaluation of the child's future needs
for instruction in Braille or the use of Braille), that instruction in Braille or the
use of Braille is not appropriate for the child;
(iv) Consider the communication needs of the child, and in the case of a child who
is deaf or hard of hearing, consider the child's language and communication
needs, opportunities for direct communications with peers and professional
personnel in the child's language and communication mode, academic level,
and full range of needs, including opportunities for direct instruction in the
child's language and communication mode; and
(v) Consider whether the child needs assistive technology devices and services.

Assistive Technology (AT). The IDEA includes two provisions that define
assistive technology devices and services and strongly reinforce the importance of
both in improving access to the curriculum and other school offerings for children
with disabilities. Consideration should be given to the need for assistive
technology as the IEP team completes Section C of the IEP, Adaptation of
Education Services. The IEP team must consider the student’s needs across all
areas of his or her present levels of academic achievement and functional
performance. Questions the IEP team should consider regarding assistive
technology when planning for the unique needs of a student are contained in
Appendix D. To assist the IEP team in documenting the consideration of AT, the
IEP team may use the suggested worksheet, The WATI Assistive Technology
Consideration Guide, which is provided in Appendix C.

Sec. 300.5 Assistive technology device.
As used in this part, Assistive technology device means any item, piece of
equipment, or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve the
functional capabilities of a child with a disability. The term does not include a
medical device that is surgically implanted, or the replacement of such device.


Sec. 300.6 Assistive technology service.
As used in this part, Assistive technology service means any service that directly
assists a child with a disability in the selection, acquisition, or use of an assistive
technology device.
The term includes—
(a) The evaluation of the needs of a child with a disability, including a
functional evaluation of the child in the child's customary environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition of assistive
technology devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying, maintaining,
repairing, or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or services with
assistive technology devices, such as those associated with existing
education and rehabilitation plans and programs;
(e) Training or technical assistance for a child with a disability or, if
appropriate, that child's family; and
(f) Training or technical assistance for professionals (including individuals
providing education or rehabilitation services), employers, or other
individuals who provide services to, employ, or are otherwise substantially
involved in the major life functions of that child.

Present Levels of Each child has unique patterns of capabilities and interests that underscore the
Academic requirement for individualized evaluation and program planning. The present
Achievement and levels of academic achievement and functional performance (PLAAFP) narrative
Functional provides the summary sketch of that unique and highly individual pattern of
Performance functioning and serves as the foundation upon which to build succeeding
components of the IEP. The PLAAFP narrative answers the question, “What do
we know about the child?”

Sec. 300.320 Content of IEP.
(a) General. As used in this part, the term individualized education program or
IEP means a written statement for each child with a disability that is
developed, reviewed, and revised in a meeting in accordance with §§ 300.320
through 300.324, and that must include—
(1) A statement of the child's present levels of academic achievement and
functional performance, including -
(i) How the child's disability affects the child's involvement and progress in
the general curriculum (i.e., the same curriculum as for nondisabled
children); or
(ii) For preschool children, as appropriate, how the disability affects the
child's participation in appropriate activities;


Sec. 300.324 Development, review, and revision of IEP.
(a) Development of IEP.
(1) General. In developing each child's IEP, the IEP team, must consider -
(i) The strengths of the child;
(ii) The concerns of the parents for enhancing the education of their child;
(iii) The results of the initial or most recent evaluation of the child; and
(iv) The academic, developmental, and functional needs of the child.

REMEMBER TO BUILD ON STUDENT STRENGTHS

The present levels of academic achievement and functional performance section
provides the team an opportunity to consider, not only the child's needs, but also
the unique strengths, values, preferences, interests, cultural identity, and norms of
the child, family, and community. By identifying strengths in an early step of the
IEP process, the team will select interventions most likely to bring success.
Balancing the strengths and needs of the child and not focusing solely on the
disability category will help the IEP team build a meaningful education program
for the child.

The present levels of academic achievement and functional performance
(PLAAFP) include the following essential features.
The PLAAFP:
The term general
• addresses strengths and needs and considers the child's age, ability,
education curriculum:
cultural and educational background.
• refers to the content
• should be understandable by the parents and general educators.
of the general
• gives the reader a clear picture of how the student is functioning in all
education curriculum
relevant areas.
and not to the
• determines unique patterns of functioning across settings.
setting in which it is
• addresses the concerns of the parents for enhancing the education of their
used;
child.
• could be used in any
• includes a meaningful interpretation of the most recent evaluation, linking
educational
these to the child’s typical performance and unique patterns of
environment along a
functioning. It is recommended that standard scores, test names or test
continuum of
scores not be part of the PLAAFP.
alternative
• includes how the child’s disability affects his/her involvement and
placements; and
progress in the general education curriculum. For a preschool child, this
• is the curriculum
means how the disability affects participation in appropriate activities
adopted by the
such as self-care skills, play interactions, etc.
school district that
• must address special considerations that impact the child's learning,
applies to all
including behavior, limited English proficiency, visual impairment,
children.
communication needs, and assistive technology needs.


• must address the academic, developmental, and functional needs.
• must address, for a student 16 and older, the academic and functional
skills the student possesses and the skills needed to achieve his/her
postsecondary goals.

Functional needs refer to activities and skills that are not considered academic or
related to a child’s academic achievement as measured on Statewide
Achievement tests. Functional skills are those which significantly affect the
quality of life of an individual in a community. 8/14/06 Federal Register, Vol.71,
No. 156, page 46661.

The performance levels should be current brief narrative statements that are
developed by all team members during the meeting at which the child’s IEP is
being initiated or updated. Technical terms, professional jargon, acronyms, and
in-depth details should be avoided. The statements should reflect a synthesis of
the team’s knowledge of the student’s total functioning and interest in all
performance areas including the home, school, and the community. Anticipated
needs, such as those likely to result from deteriorating conditions (e.g.,
progressive blindness or progress of a muscular disease) should be addressed.

The academic, developmental, and functional needs of the child must be
considered. These may include the following:
• performance in the general education classroom
• performance on statewide assessment
• progress monitoring data
• cognitive functioning
• communication status
• motor ability
• sensory status
• health/physical status
• behavior skills (including adaptive behavior, if applicable), ecological
factors
• functional skills, community participation
• emotional and social development

Secondary Transition Components
Vocational or occupational potential must be addressed for all students who will
be 16 years of age or older during the effective dates of the IEP (or for younger
students if the IEP team determines it is applicable). Each of the following
aspects of transition listed here must be addressed:
− jobs and job training
− recreation and leisure
− home/independent living
− community participation
− postsecondary training and learning opportunities.
− related services
For more information on these areas please see Appendix B.


When the present levels of academic achievement and functional performance
section is completed as described above, it will ensure that all team members are
communicating what they know about the child’s strengths, needs, abilities, and
interests and how the student is functioning at home, in school, in the community,
and in other relevant environments. When successfully communicated, this
information forms the foundation for identifying the child’s unique needs which
require specialized instructional services, as well as the child’s interests and full
range of capabilities. This complete picture will be the basis for planning a
meaningful educational program.

Secondary Transition services are part of a long-range plan that coordinates the last years of
Transition Services high school and the years immediately following high school. They are an overall
description of the services that are needed for the student to achieve his/her
desired postsecondary goals. The IEP team must include transition services in the
first IEP that will be in effect when the student is 16 years of age. Transition
planning may occur earlier if it is deemed appropriate for the student. The IEP
team must actively involve the student in developing his/her IEP.
The Transition services planning process must include:
• Appropriate measurable postsecondary goals based upon information
from age appropriate transition assessments related to:
o education or training;
o employment; and
o independent living skills (where appropriate).
• The course of study. This multi-year description of coursework and
educational experiences must be updated annually, be meaningful to
the student’s future, motivate the student to complete his or her
education, and support post-school outcomes.
• A coordinated set of needed strategies and activities to assist the
student in reaching postsecondary goals based on the students
strengths, preferences and interests, and includes:
o Instruction;
o Related services;
o Community experiences;
o Employment;
o Post-school adult living;
o Daily living skills (if appropriate); and
o A functional vocational evaluation (if appropriate).
• Agency participation, if the IEP team determines that another agency
other than the LEA, is likely to be responsible for providing or paying
for transition services.
• The anticipated date of exit from secondary school. If the student will
exit with fewer credits than required of all students of the district in
order to receive a diploma, the team must document this and identify
the alternate document the IEP team anticipates the student will
receive.


• Transfer of Rights. Procedural safeguard rights associated with the
IDEA 2004 transfer to the student at the age of majority. In North
Dakota the age of majority is 18. There are two points in time
associated with the transfer of rights:
o No later than one year before the student turns 18: On the IEP
form, the IEP team must document that the discussion with the
student and parent(s) regarding the transfer of rights has occurred.
o When the student reaches the age of majority: The district must
provide written notice of the transfer of rights to both the student
and the parents. This written notice must be provided at the time
the student reaches the age of majority, which may or may not be
at the time of the annual review.
• Summary of Performance: For any student whose eligibility for
special education will terminate due to graduation with a regular
diploma, or due to exceeding the age of eligibility, the local education
agency shall provide the student with a summary of the student’s
academic achievement and functional performance, which shall
include recommendations on how to assist the student in meeting the
student’s postsecondary goals.

Please see Appendix B for additional guidance on the transition planning process.

Sec. 300.43 Transition services.
(a) Transition services means a coordinated set of activities for a child with
disability that—
(1) 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, including postsecondary education, vocational education,
integrated employment (including supported employment), continuing
and adult education, adult services, independent living, or community
participation;
(2) Is based on the individual child’s needs, taking into account the child’s
preferences and interests; and includes--
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult
living objectives; and
(v) If appropriate, acquisition of daily living skills and provision of
a functional vocational evaluation.
(b) Transition services for students with disabilities may be special education, if
provided as specially designed instruction, or related services, if required to
assist a student with a disability to benefit from special education.


Annual Goals, Short- The IDEA 2004 includes a provision that the IEP must include measurable short-
Term Objectives, term objectives for students taking an alternate assessment based on alternate
and Characteristics achievement standards. Short-term objectives are not required for all other
of Services students. The annual goals together with the short-term objectives and
characteristics of services answer the following questions:

• What are we going to do to help the student receive an appropriate
education? The IEP team addresses this question through the following
components: goals, short-term objectives, characteristics of services,
adaptations, and special education and related services.
• How will we know if we are succeeding? This is ultimately answered
through measurements based on the goals and short-term objectives of the
IEP and other results of the total education experience.

Annual goals and short-term objectives are reviewed at least annually. This
review provides a mechanism for determining whether the child is progressing
given the special education services provided, and whether the placement and
services are appropriate to the child’s special learning needs. These requirements
provide a way for the child’s teacher(s) and parents to track the child’s progress
in special education.

Annual Goals
Sec. 300.320 Definition of individualized education program.
(2)(i) A statement of measurable annual goals, including academic and functional
goals designed to
(A) Meet child's needs that result from the child's disability to enable the
child to be involved in and make progress in the general education
curriculum and
(B) Meet each of the child’s other educational needs that result from the
child’s disability;
(ii) For children with disabilities who take alternate assessments aligned to
alternate achievement standards, a description of benchmarks or short-term
objectives;

Essential features of annual goals are provided below.
• Annual goals are based on the needs addressed in the present levels of
academic achievement and functional performance and flow from that
description.
• Annual goals are selected with an awareness of the student’s unique skills,
interests, and strengths.
• Annual goals set expectations for the student; they state what the student
can reasonably accomplish within a 12-month period of time.
• Annual goals are a means of gauging progress and change in knowledge,
skill, or behavior over time.
• Annual goals identify the behavior or skill being addressed, the desired
ending level of achievement, and the intent or purpose for
accomplishment.
• Annual goals describe how the child will be involved in and progress in
the general curriculum.


• When a student has many needs identified in the present levels of
academic achievement and functional performance, the IEP team may
decide to prioritize annual goals and work on a manageable number
during the upcoming 12-month period.
• Annual goals for youth with transition plans must include goals which
support postsecondary plans.

Every goal should be directly related to the child’s present levels of academic
achievement and functional performance. Goals are related to the unique needs of
the child, therefore they should be specific and not applicable to every other
student in the class. For example, “Mary will pass the eighth grade” applies to
every student in the eighth grade and is not unique to Mary’s individual needs.
Therefore, meaningful goals written on an annual basis that are unique to the
student and are reasonably attainable within one year will reflect progress and
change each year. The same goals should not be repeated year after year.

Goals in the IEP should be designed to meet the needs of a student that result
from the student’s disability and enable the student to be involved in and make
progress in the general education curriculum. Teams should consider both
academic and functional goals when appropriate. For example, if a student with a
learning disability is functioning several grades below indicated ability in reading
and has a specific problem with word recognition, the IEP goals would be
directed toward (1) closing the gap between the student's indicated ability and
current level of functioning, and (2) helping the student increase the ability to use
word attack skills effectively or to find some other approach to increase
independence in reading.

In many cases, it is possible to address problem areas by looking to the child's
strengths and using these strengths as a vehicle for addressing concerns. This is
particularly true in addressing behavioral concerns. Such strengths-based
approaches are effective means for dealing with social-emotional or behavioral
problems.

Components Goals must be behavioral, student-based, and lead to a less restrictive
environment.

Four primary components of a goal are:

• the behavior or skill being addressed,
• the desired ending level of achievement,
• the intent or purpose for accomplishment, and
• characteristics of services (only for goals not requiring short term
objectives)


The first component in a goal, the behavior or skill, refers to the specific
instructional needs in terms of the student, e.g.:
• computational skills,
• word recognition skills,
• language skills,
• social skills,
• eating skills,
• functional motor skills, or
• job-related skills.

The second component of a goal, desired ending level of achievement, should be
stated in terms of measurable performance that is an attainable level of
achievement for the child. The goal statement should include the student’s
expected level of growth.

The third component of the goal is the intent or purpose of the behavior. The
intent clarifies why it is important for the child to demonstrate the behavior or
skill. Establishing intent also focuses the team on prioritizing goals most
appropriate to the child’s overall functioning.

The fourth component of the goal is the characteristics of services. Each goal
must also include a description of where, how, and by whom the services will be
delivered, unless the goal includes short term objectives that will include this
information.

Examples of goals illustrating four components:

Megan will improve her written work from a simple sentence structure to writing
a paper on a teacher assigned science topic using compound and complex
sentences. This will allow her to complete her grade level assignments
independently. Megan’s science teacher will evaluate progress through daily
assignments.

In order to improve math skills, Michael will compute math problems in the 5th
grade classroom that require one or two digit regrouping, with 80% accuracy
over 10 consecutive trials. This activity will be evaluated through daily
assignments by Michael’s math teacher. (Mathematics grade 5 standard
Benchmark 4)

Susan will engage in three verbal exchanges with peers during art activities in
Mrs. Anderson's class to improve socialization skills. Progress will be evaluated
weekly by Mrs. Anderson through weekly observation charts.


Examples of goals more relative to postsecondary goals include:

Given a task analysis for bagging groceries, while at the community job site,
Steven will practice the task semi-weekly and complete it (a) without breaking
items, (b) without ripping bags on 90% of occasions by April 2, 2008. This
activity will be monitored and evaluated by the job coach working with Steven.

Jodi will improve her reading comprehension scores by one grade level through
daily instruction in the English classroom, using high-interest reading materials
such as the newspaper, teen magazines, and young adult women’s magazines,
school approved websites, and short stories for adults by April 2, 2008. Jodi’s
English teacher will evaluate progress through daily grades.

Sec. 300.320 (a)(2)(ii) For children with disabilities who take alternate assessments aligned to alternate
achievement standards a description of benchmarks or short term objectives.

Once the IEP team has developed measurable annual goals for a student, the team
can (1) develop measurable, intermediate steps (short-term objectives) that will
enable families, students, and educators to monitor progress during the year, and,
if appropriate, to revise the IEP consistent with the student’s instructional needs,
and (2) develop strategies and services that will be most effective in realizing
those goals.

Short-term The IDEA 2004 includes a provision that the IEP must include a description of
Objectives or benchmarks and short-term objectives for students taking an alternate assessment
Benchmarks based on alternate achievement standards. For information on use of standards
and benchmarks in the IEP process see Appendix E. Short-term objectives are not
required for all other students. Short-term objectives are measurable, intermediate
steps between the student's present levels of educational performance and the
student's goals. They serve as references for measuring progress toward meeting
goals.

Essential features of short-term objectives (STOs) are:
• intermediate steps that describe how progress toward meeting annual
goals will be measured.
• attainable within a year, with most target dates within a shorter time span.
• characteristics of services under which behavior will be performed, the
specific behaviors to be performed, criteria for attainment, evaluation
procedures, and schedules for measuring progress.
• typically sequenced developmentally, incrementally, or by level of
proficiency. Because of the sequencing, STOs associated with a specific
annual goal often begin at different times.

Short-term objectives are not curriculum or daily lesson plans.


An IEP Team may decide it is appropriate to include STOs for a student who is
not taking alternate assessment on an individual student basis. The number of
short-term objectives required for each goal is a decision made by IEP teams.
Typically, each annual goal requires more than one short-term objective.
However, this is not always the case. An exception to this occurs when the goal is
for maintenance of skills. Examples of this include maintaining properly
articulated speech sounds in generalized settings after the child has consistently
demonstrated the skill with the speech-language pathologist, or continuing to
demonstrate appropriate workplace skills after reasonable proficiency has been
shown.

In some respects, short-term objectives are similar to objectives used in daily
classroom lesson plans. For example, both kinds of objectives are used to
describe what a given child is expected to accomplish in a particular area within
some specified time period and to determine the extent to which the child is
progressing toward those accomplishments.

In other respects, however, objectives in IEPs are different from those used in
lesson plans, primarily in the amount of detail they provide. Short-term objectives
provide general milestones for determining progress toward meeting the annual
goals. These IEP objectives should be projected to be accomplished over an
extended period of time (e.g., a school quarter, semester, or a normal reporting
period). On the other hand, the objectives in classroom lesson plans deal with
more specific outcomes that are to be accomplished on a daily, weekly or
monthly basis. Classroom lesson plans generally include details not required in an
IEP, such as the specific methods, activities, and materials (e.g., use of flash
cards) that will be used to accomplish the objectives.

Short-term objectives may be sequenced either (1) developmentally (e.g., grasp
the ball, throw the ball using correct arm movements, step into the throw, achieve
a designated accuracy, reach a designated distance); (2) incrementally in terms of
time (e.g., writing a paragraph of 2-5 word sentences by November, 5-7 word
sentences by February, and full paragraphs by May); or (3) by level of proficiency
(e.g., from 75% to 90%; 4 correct out of 5 attempts). It is important to remember
that because they are sequenced, objectives will not all begin on the date the IEP
becomes effective; some will begin only after other objectives have been
accomplished. For this reason, projected initiation dates and schedules are
included to assist team members in assessing and documenting progress.
Consequently, it is essential to refer to the IEP throughout the school year to
assess and document progress, and note initiation of new objectives.


Components Each short-term objective must have five main components. They are:

1. Conditions or circumstances under which the behavior is to be performed.
These have traditionally been the "Given a 10 word spelling list . . ." type
statements.
2. Performance of specific behaviors, which are simply statements of what
the student is expected to do. These behaviors need to be measurable and
observable.
3. Criteria for attainment or level of performance statements which generally
address how well the student is expected to perform the behavior. Some
measure of accuracy, standard of performance or correctness of the
behavior must be included in the objective.
4. Evaluation procedures for determining whether the short-term objectives
are being met. Examples of procedures include: observation by various
service providers, classroom teachers or parents; tallies or checklists;
tests; or self-report.
5. Schedule for determining whether objectives have been met. Progress
toward short-term objectives or benchmarks must be reviewed on at least
an annual basis. Many schools routinely use a quarterly or semester
progress check, although the nature of the objective should guide the
schedule. For example, it may be necessary in some cases to do daily or
weekly checks because of the behaviors involved.

Some examples of objectives containing the 5 component parts are:

When given a writing assignment of five sentences or more, Amanda will write at
least two compound sentences. This task will be performed in seventh grade
English and social studies, and products will be collected three times during the
fall semester (September, October, and November) by the classroom teachers.

Given a microswitch properly secured to the headrest of her chair, Rachel will
select three activities that she prefers from the school’s work-based curriculum
with 90% accuracy by October 15, 2007. Performance will be evaluated by the
Work Experience Coordinator twice weekly.

Given mathematical terminology, Bill will identify the correct terms when adding,
subtracting, multiplying, and dividing with 80% accuracy in 9 out of 10 trials
beginning September 27, 2007 through December 20, 2007. This skill will be
performed in the 8th grade math classroom. Performance will be evaluated
through weekly grades by the 8th grade math teacher. (Math grade 8 standard,
benchmark 1)


Considerations There are some additional considerations regarding the relationship between goals
Regarding Related and related services. Related services are specially designed developmental,
Services corrective, or supportive services that are necessary for the student to benefit from
special education. Some examples of related services are occupational therapy,
physical therapy, transportation, counseling and medical diagnostic procedures.
Related services can be provided only when necessary to meet an identified
educational need and the goals related to that need.

During adaptive PE class, Ellen will move around in her various environments by
creeping from one room to another on 5 out of 6 trials. This will give her more
independence in moving about the home and is a precursor to walking. Progress
will be evaluated by the physical therapist through daily charting.

During scheduled story time in the 1st grade classroom, Tom will sit for five
minutes without physical support to demonstrate improvement of his balance.
This activity will be monitored and charted by the paraprofessional working with
Tom. Progress will be evaluated by the physical therapist.

Characteristics of When a goal (and objective, when required) has been developed, the next step is
Services to determine the characteristics of the services. The discussion regarding
characteristics of services considers where and how the services will be delivered
and by whom (position or relationship to the student). The IEP Team must
consider if that which is being addressed in the goal will carry over to the general
education curriculum. It is helpful for the team to think through a series of
questions regarding each goal. It is important in consideration of the least
restrictive environment that the questions are asked in the following sequence:

1. Can the performance specified in this goal be met in general education
activities without accommodation or modification? If no, why not?
2. Can the performance specified in this goal be met in general classroom
activities if appropriate accommodations or modifications are made? If
the answer is yes, what types of accommodations or modifications are
necessary and what special education services, if any, are needed?
3. Can the performance specified in this goal be met if the content difficulty
is altered OR if specially designed instruction (totally different) is
provided?
4. Can the performance specified in this goal be met if supportive training
related to the disability is provided (e.g. functional communication
training, orientation and mobility, fine/gross motor development, etc.)?

Based on the answer to each of the above questions, a discussion must occur
regarding the description of the services that will best match the student's needs
and characteristics. These summary descriptions of the characteristics of services
when taken together become the basis for establishing the least restrictive
environment(s) in which the student will receive special education and related
services if these services are necessary. Specifics of the services will be
summarized in Section J. on the IEP form, Special Education and Related
Services.


Periodic Review of Parents are involved in decisions regarding their child’s educational progress,
Services including the child’s progress in the general curriculum as well as progress
toward the annual goals. Parents must receive regular reports of the child’s
progress in subjects or curricular areas for which the child is not receiving special
education. In addition, parents must also receive a periodic review of the child’s
progress toward the annual goals and the extent to which that progress is
sufficient to enable the child to achieve the goals by the end of the year. At the
time of the periodic review, the recommended practice is to use a form that
includes the student’s goals and the documented progress related to each goal.
The periodic report schedule is determined by the IEP team and documented in
the IEP.

The periodic review includes a description of the student’s progress toward
meeting each goal. The review must utilize the same measurement criteria
specified in the goals. It should clearly specify how the student’s performance at
the time of the review is different from the performance observed at the time the
IEP was written, addressing any lack of expected progress toward annual goals.
While an IEP team meeting is not required for a periodic review, a meeting may
subsequently be requested by parents to discuss the results.

Sec. 300.320 Definition of individualized education program
(a)(3) A description of:
(i) How the child’s progress toward meeting the annual goals described in
paragraph (2) of this section will be measured; and
(ii) When periodic reports on the progress the child is making toward meeting the
annual goals (such as through the use of quarterly or other periodic reports,
concurrent with the issuance of report cards) will be provided;

Adaptation of Section G of the IEP addresses adaptations of educational services,
Educational accommodations, modifications, supports, and other adjustments that enable the
Services student to participate in the general curriculum and other school offerings as fully
as possible. Some of the information in this section may be related to the
descriptions of the characteristics of services for the goals in Section F of the IEP;
however, the entry here is intended to be a summary of accommodations,
supports and adjustments required across goals. The adaptations listed must be
based on peer reviewed research to the extent practicable. Peer reviewed research
generally refers to research that is reviewed by qualified and independent
reviewers to ensure that the quality of the information meets the standards of the
field before the research is published. Consideration must also be given to the
special factors identified in the IEP section D.


Sec. 300.320 Definition of individualized education program
(4) A statement of the special education and related services and supplementary
aids and services, based on peer-reviewed research to the extent practicable, to
be provided to the child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that will be provided
to enable the child-
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved in and make progress in the general education
curriculum in accordance with paragraph (a)(1) of this section, and to
participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities
and nondisabled children in the activities described in this section;

Sec. 300.42 Supplementary aids and services.
Supplementary aids and services means aids, services, and other supports that are
provided in regular education classes, other education-related settings, and in
extracurricular and nonacademic settings, to enable children with disabilities to be
educated with nondisabled children to the maximum extent appropriate in
accordance with §§ 300.114 through 300.116.

Adaptations that are needed for the student to meet his/her goals are to be
described. In addition, accommodations to permit successful inclusion of the
student in general education settings must be identified. It is also important to
note which staff person(s) will be responsible for implementing each adaptation.
Participation of the regular education teacher is required for determination of
appropriate positive behavioral interventions and strategies for the child, as well
as determination of supplementary aids and services, program modifications, and
supports for school personnel.

Examples of adaptations of educational services statements are listed below.

Susan will have a paraprofessional with her whenever she is in regular classes.
The paraprofessional will encourage Susan’s participation and emphasize
independence whenever possible. Susan needs an electric wheelchair
(transported with her from home), an accessible table with her class in the
lunchroom, a mechanical arm with spoon for eating, and a desk accessible to her
wheelchair in the classroom.

Andrea’s goals in the behavioral areas require a peer tutor for additional support
to take part in regular classroom activities.

Brett uses sign language and requires an interpreter in all classes.

Scott has a reading comprehension level significantly below grade level and
needs classroom materials modified so that the reading material is being
presented at a level Scott can understand.


Emily has a visual impairment and requires a video enlarger to enable her to
read printed material. Copies of classroom handouts need to be in dark black
print, not lighter ink.

Tim has a speech impairment and requires an augmentative communication
device.

Billie needs her total curriculum presented with visual cues and testing needs to
be done orally.

Participation in All students must be included in North Dakota accountability systems. This
District-wide and includes students with disabilities. Increasing the participation of students with
Statewide disabilities provides a measure of their progress in the general education
Assessments curriculum as well as accurate data from which changes in instructional practices
can be made to better meet their needs.

ND State Federal and State law require that all students participate in the State Testing
Assessment System. In North Dakota a student will participate under one of these four general
Participation options:
Options
1. North Dakota State Assessment (NDSA):
Most students will participate in the NDSA under standard conditions and
following instructions read to them by the test administrator from the Test
Directions document. Within standard conditions, students complete the
NDSA as provided.

2. North Dakota State Assessment (NDSA with allowable accommodations):
Some students will participate in the NDSA with the aid of accommodations.
Accommodations are allowed for students who have an IEP Plan, an LEP
Plan, or a 504 Plan.

3. North Dakota Alternate Assessments:
Certain students with either significant cognitive disabilities or with
persistent learning difficulties, who are served under IDEA, will participate
in the state assessment system by using either the North Dakota Alternate
Assessment 1 (NDAA1) or the North Dakota Alternate Assessment 2
(NDAA2).

The NDAA1 is for students with significant cognitive disabilities who are
served under IDEA. It is a performance-based assessment that measures
student performance against grade-level achievement standards, called
alternate achievement standards.

The NDAA2 is for students with persistent learning difficulties, who are
served under IDEA. The NDAA2 is a multiple choice assessment based on
grade level achievement standards, called modified achievement standards.


4. A Combination of the NDSA and an NDAA:
When determined by the student’s IEP planning team, some combination of
the NDSA and the NDAA may be most appropriate for a student. That is, the
student may use one instrument for assessment of reading/language arts, and
the other for assessment of mathematics, and/or science.

IEP Teams must address how students with disabilities will participate in the
state assessment by asking some key questions. The flowchart identified
below is a tool to help teams make these determinations.
See : IEP Flowchart for Decisions on Assessment Options at:
http://www.dpi.state.nd.us/speced/resource/alternate/index.shtm

Assessment Decisions regarding which assessment option a student will participate in, will be
Decisions made annually by the student’s IEP team, and will be based on the student’s
curriculum, present levels of academic achievement, functional performance, and
learning characteristics. Decisions cannot be based on program setting, category
of disability, percentage of time in a particular placement or classroom, or any
considerations regarding a school’s Adequate Yearly Progress (AYP) designation.

Decisions must be based on The North Dakota Alternate Assessment criteria.

The North Dakota Alternate Assessment 1 (NDAA 1) is for students with severe
cognitive disabilities and the criteria are as follows:

The IEP team must ask the following questions:

1. Does the student’s cognitive ability and adaptive behavior prevent
completion of part or all of the general education curriculum; AND

2. Does the student require extensive, frequent and individualized
instruction in multiple settings in order to maintain or generalize skills
necessary to function in school, at home, in the community, and during
recreation/leisure and vocational activities; AND

3. Is the student’s curriculum so individualized that the general assessment
will not reflect what the student is being taught.

In other words, if the NDSA (even with appropriate accommodations) will
not provide an accurate measure of what the student knows and is able to
do, because his/her curriculum is so different, then the IEP Team needs to
consider the NDAA1.


The North Dakota Alternate Assessment 2 (NDAA 2) is for students with
persistent cognitive difficulties and the criteria are as follows:

1. The student has persistent learning difficulties that prohibit him/her from
making grade-level academic achievement in the time frame covered by
the annual IEP; AND

2. The student’s participates in the general education curriculum with
ongoing supports and services from special education; AND

3. The student’s curriculum is so individualized that the general assessment
will not reflect what the student is being taught (even with
accommodations).

In other words, If all three criteria apply to the student and the NDSA (even with
appropriate accommodations) or the NDAA 1, will not provide an accurate
measure of what the student knows and is able to do because his/her curriculum is
so different, then the IEP Team needs to consider the NDAA 2.

(5) An explanation of the extent, if any, to which the child will not participate
with nondisabled children in the regular class and in the activities described in
paragraph (a)(4) of this section;
(6) (i) A statement of any individual appropriate accommodations that are
necessary to measure the academic achievement and functional
performance of the child on State and districtwide assessments consistent
with section 612(a)(16) of the Act; and
(ii) If the IEP Team determines that the child must take an alternate
assessment instead of a particular State or district-wide assessment of
student achievement, a statement of why--
(A) The child cannot participate in the regular assessment; and
(B) The particular alternate assessment selected is appropriate for the child;


Assessment The IEP Team decisions must be documented in the student’s IEP and must be
Documentation specific enough to direct educators in carrying out the intent of these Team
decisions. This information should be documented in Section G of the student’s
annual IEP.

Documentation is required in two particular instances. These are: for specific
assessment accommodations related to each subject, and on why a student cannot
take the general assessment and why a particular alternate assessment is
appropriate (see 300.320).

Additional IEP documentation required for students taking the ND Alternate
Assessment include:
• Annual goals and objectives.
• Documentation of data on student progress on other measures
throughout the year which support the need for an alternate
assessment.

See the NDAA website for additional information and requirements
http://www.dpi.state.nd.us/speced/resource/alternate/index.shtm
Including the following documents:

• IEP Flowchart for Decisions on Assessment Options.
• Students with Disabilities and the North Dakota State and District-
Wide Assessments (updated yearly).
• North Dakota State Testing Coordinators Manual (NDDPI
website).
• North Dakota Alternate Assessment (NDDPI website).
• North Dakota Alternate Assessment Directions Manual (NDDPI
website).

All documents are available at: www.dpi.state.nd.gov

Assessment While the majority of students with disabilities can take the NDSA under
Accommodations standard conditions, some students will need accommodations. The purpose of an
accommodation is to help each student show what he/she knows and can do and
to lessen the impact of the disability. The intent of the accommodation is to
provide equal footing, not to give an unfair advantage over other students.

It is important to identify what assessment will be used for each subject and
whether any accommodations will be used. These accommodations must be
the same accommodations used in the course of the student’s instruction
(i.e. not only used for assessment). Documentation should be specific rather
than general. For example: John will take the NDSA for math with the use
of a calculator; in a quiet location, with no distractions or other students in
the room.

Accommodations used during testing must match those accommodations
identified in Section G of the student’s IEP. These accommodations allow
students to access and complete the NDSA or the NDAA2 in a manner that
provides consistent accessibility and allows these students to demonstrate what
they know and are able to do.


Accommodations used on state assessments must be “allowable”, i.e. these
accommodations must not change the construct of the test item. An example of a
“non-allowable” accommodation is “reading the text on the reading test”.

The use of “non-allowable” accommodations such as this will result in an
invalidated test.

Federal regulations require that IEP teams select only those accommodations for
use with assessments that do not invalidate the assessment results (i.e. the
accommodations must be “allowable”. For purposes of reporting school
accountability in North Dakota, the use of any unapproved accommodation or
modification will result in the designation of the student as a non-participant
in the state’s assessment system and will remove the student’s score from both
the numerator and denominator when calculating the percentage of students who
are proficient. IEP teams are advised to exercise discretion and consider the
consequences of assessing a student with accommodations that invalidate the
NDSA score.

For additional information on approved accommodation please see:
The North Dakota Test Coordinator’s Manual – Appendix E. and/or
http://www.dpi.state.nd.us/testing/assess/AppendE.pdf

Description of Interactions with peers who are not disabled must be specified in Section H of the
Activities With IEP in the areas of physical education, program options, and nonacademic and
Students Who Are extracurricular activities.
Not Disabled
This section describes the IEP team's consideration of a broad range of
educational options that go beyond the core content subjects. These options offer
the student a balanced educational program that includes development in areas
that often have life-long benefits (e.g., social skills, vocations, or physical health).
They are important additions to the content subjects that are the focus of the core
curriculum. The sections that follow describe the issues that the IEP team
members need to consider as they plan the student's participation in physical
education, program options, and nonacademic and extracurricular areas.


Physical Education In Section H, the IEP team will indicate the type of physical education program in
(PE) which the student will participate using the following guidelines.

1. General physical education with students who are not disabled. If a
student with a disability can participate fully in the regular physical
education program without any special modifications to compensate for
the student's disability, it would not be necessary to describe the physical
education program in the IEP. On the other hand, if some modifications to
the general physical education program are necessary for the student to be
able to participate in that program, those modifications must be described
in the IEP.

2. Specially designed physical education. If a student with a disability needs
a specially designed physical education program, that program must be
addressed in all applicable areas of the IEP (e.g., present levels of
academic achievement and functional performance, goals, and services to
be provided).

If a student with a disability is educated in a separate facility, the physical
education program for that student must be described or referenced in the IEP.
Option 1 and 2 apply in that setting as well. For example, if a student is in a
separate facility that has a standard physical education program (e.g., a residential
school for the deaf), and if it is determined on the basis of the student’s most
recent evaluation that the student is able to participate in that program without
any modifications, then the IEP need only note such participation. On the other
hand, if special modifications to the physical education program are needed for
the student to participate, those modifications must be described in the IEP.


Sec. 300.108 Physical education.
(a) General. Physical education services, specially designed if necessary, must be
made available to every child with a disability receiving FAPE, unless the
public agency enrolls children without disabilities and does not provide
physical education to children without disabilities in the same grades.
(b) Regular physical education. Each child with a disability must be afforded the
opportunity to participate in the regular physical education program available
to nondisabled children unless—
(1) The child is enrolled full time in a separate facility; or
(2) The child needs specially designed physical education, as prescribed in
the child's IEP.
(c) Special physical education. If specially designed physical education is
prescribed in a child's IEP, the public agency responsible for the education of
that child shall provide the services directly or make arrangements for those
services to be provided through other public or private programs.
(d) Education in separate facilities. The public agency responsible for the
education of a child with a disability who is enrolled in a separate facility
must ensure that the child receives appropriate physical education services in
compliance with this section.

Other Educational The IEP process helps to ensure that students with disabilities will have
Program Options opportunities to participate with students who are not disabled in educational
Within the School program options, including art, music, trade and industrial arts, family and
Setting consumer science, physical education and vocational education. The list of
program options is not exhaustive and could include any program or activity in
which nondisabled students participate.

This implies that the team will not only discuss current options, but sequentially
plan strategies to make more options available to the student. The deliberations of
the team, including all current options discussed and new options to be developed
must be documented. This documentation should also address the steps the team
will take to make program options available, as well as the necessary
accommodations and modifications needed to ensure accessibility and an equal
opportunity for participation in those activities including specific responsibilities
of team members.

For young children with disabilities who receive early childhood special
education services, additional educational program options might include such
age-appropriate activities such as library or story time.

Sec. 300.110 Program options.
The State must ensure that each public agency takes steps to ensure its children
with disabilities have available to them the variety of educational programs and
services available to nondisabled children in the area served by the agency,
including art, music, industrial arts, consumer and homemaking education, and
vocational education.


Nonacademic and The same planning strategies and documentation used for other educational
Extracurricular program options within the school setting are required for nonacademic and
Services and extracurricular services and activities including supplementary aids and services
Activities determined by the child’s IEP team to be appropriate and necessary. It is
important to note responsibilities of team members. The IEP team must ensure
that each child with a disability participates with nondisabled children in the
extracurricular services and activities to the maximum extent appropriate to the
needs of that child.

Children with disabilities must be provided nonacademic services in as integrated
a setting as possible. This requirement is especially important for children whose
educational needs necessitate their being away from nondisabled children during
most of each day. To the maximum extent appropriate, children in residential
settings are also to be provided opportunities for participation with nondisabled
children.

For young children with disabilities who are participating in early childhood
special education programs, nonacademic and extracurricular activities might
include meals and snack time, motor activities or play groups, or other age-
appropriate special events.

Sec. 300.107 Nonacademic services.
The State must ensure the following:
(a) Each public agency shall take steps, including the provision of supplementary
aids and services determined appropriate and necessary by the child’s IEP
Team, to provide nonacademic and extracurricular services and activities in
the manner necessary to afford children with disabilities an equal opportunity
for participation in those services and activities.
(b) Nonacademic and extracurricular services and activities may include
counseling services, athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the public agency,
referrals to agencies that provide assistance to individuals with disabilities,
and employment of students, including both employment by the public agency
and assistance in making outside employment available.


Least Restrictive The IDEA 2004 provisions for least restrictive environment govern the IEP team's
Environment (LRE) decision regarding which of several educational environments is appropriate for a
specific child with a disability.

LRE In Section I. Least Restrictive Environment Justification of the IEP form, the
• Is mandated team describes the extent to which a child with a disability will be educated with
• Is individualized nondisabled peers. The team will consider the following questions:
• Is a presumption of
education with • What accommodations, modifications, and adaptations does the individual
nondisabled peers student require?
• Why can't these accommodations, modifications, and adaptations be
• Is a continuum of
provided within the general education classroom?
services
• Is there a potential detriment to the individual if served in the general
• May change across
classroom?
time
• How will the individual's participation in the general classroom impact the
other students?

Based on its deliberation over these questions, the IEP team documents the
decisions made regarding:
1. The setting chosen as the least restrictive environment for an individual
student; and
2. The team's justification for that choice.

Sec. 300.114 (2) LRE requirements.
(2)Each public agency must ensure that
(i) To the maximum extent appropriate, children with disabilities, including
children in public and private institutions or other care facilities, are
educated with children who are nondisabled; and
(ii) Special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only if the
nature or severity of the disability is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily

Environmental The IEP team needs to determine the Environmental Setting in which the child
Setting with disabilities will receive the majority of his or her education. The definitions
of these two terms are set by the data collection process prescribed by the U.S.
Department of Education’s policy regarding Child Count. The options are not
intended to hinder the team’s creativity, but to serve as a summary statement
about where the child with a disability spends most of his or her day. Once the
IEP is completed the IEP team would select the Environmental Setting.

Descriptions of Federal Child Count Environmental Settings are provided in
Section III, page 73.


LRE Justification The purpose of the LRE discussion is to consider the continuum of educational
environments and document decisions made by the IEP team regarding the
environment in which the child will receive most of his/her education. The
discussion and statements must be individualized, not derived from a checklist or
a set of generic phrases, and must be based on the specific instructional needs,
and the plan to address these needs, identified in other sections of the IEP. The
IEP team will review and discuss the environment options considered and
compare them as a more or less appropriate means to address the student’s
specific identified needs. The IEP team must document the placement selected
and the reason this placement is the most appropriate to meet the student’s unique
needs.

In the majority of cases, children with disabilities can receive all or most of their
education in the general education classroom. Each child's IEP team must fully
consider ways to remove obstacles to educating the child with disabilities in less
restrictive settings before proceeding to more restrictive options. However, the
IEP team may decide that an individual student cannot be educated satisfactorily
in the general education classroom, even when appropriate aids and services are
provided. The IEP team must then consider other placement options.

Sec. 300.116 Placements.
In determining the educational placement of a child with a disability, including a
preschool child with a disability, each public agency must ensure that—
(a) The placement decision—
(1) Is made by a group of persons, including the parents, and other persons
knowledgeable about the child, the meaning of the evaluation data, and
the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart, including
§§300.114-300.118;
(b) The child's placement—
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(3) Is as close as possible to the child's home;
(c) Unless the IEP of a child with a disability requires some other arrangement,
the child is educated in the school that he or she would attend if nondisabled;
(d) In selecting the LRE, consideration is given to any potential harmful effect on
the child or on the quality of services that he or she needs; and
(e) A child with a disability is not removed from education in age-appropriate
regular classrooms solely because of needed modifications in the general
curriculum.


The school district must have other placements available to the extent necessary
to ensure that the student’s IEP can be implemented. The IEP team decides which
of these other placements is best for the student, given the student’s individual
needs and the importance of being educated, to the maximum extent appropriate,
with students who do not have disabilities. As stated in regulation 300.116(e) "A
child with a disability is not removed from education in age-appropriate regular
classrooms solely because of needed modifications in the general curriculum."

Sec. 300.115 Continuum of alternative placements.
(a) Each public agency shall ensure that a continuum of alternative placements is
available to meet the needs of children with disabilities for special education
and related services.
(b) The continuum required in paragraph (a) of this section must—
(1) Include the alternative placements listed in the definition of special
education under §300.38 (instruction in regular classes, special classes,
special schools, home instruction, and instruction in hospitals and
institutions); and
(2) Make provision for supplementary services (such as resource room or
itinerant instruction) to be provided in conjunction with regular class
placement.

(5) An explanation of the extent, if any, to which the child will not participate
with nondisabled children in the regular class and in the activities described in
paragraph (a)(4) of this section;

Harmful Effect

As a part of the decision making regarding LRE, the team will discuss and
document potential harmful effects of a placement on the child or the quality of
services the child needs. A situation does not have a harmful effect if actions
taken can prevent or diminish the effect.

The following questions can be used to guide the decision regarding potential
harmful effects. These questions are by no means an exhaustive listing of those
that might be considered in the determination of harmful effect. If there is no
harmful effect, the answers to the following questions should always be no.
• Will there be a detrimental effect on the child’s social relationships if he
does not attend his neighborhood school?
• Will this placement be detrimental to the family relationship?
• Will the student be stigmatized or feel excluded from the general
education setting as a result of this placement?
• Will this placement diminish the student’s access to and participation in
the general education curriculum?
• Will this placement result in the loss of instructional time during transition
periods?


• Will this placement significantly reduce the incidental learning
opportunities that occur in the general education setting?
• Will the education of other students be significantly impaired by the
provision of services to the student in the general education setting even if
the necessary supplementary aids and services are provided?

Examples of LRE discussions:

There are no general education programs available in this school district for
preschool children (either public or private). Because of the severity of Tom's
disability, he requires several hours of instructional and related services daily
which are provided in the preschool/early childhood special education
classroom. To enhance opportunities for Tom's socialization and communication,
peers without disabilities will be invited into the special education classroom on a
regularly scheduled basis.

It is expected that Sally will be able to meet all grade-level standards if she is
provided the services included in this IEP. Because these services can be
delivered in the general education setting through small group instruction, there
is no need for Sally to leave her classroom.

Ben can meet his goals in the general second grade curriculum with an additional
six hours per week instruction by a special educator, in addition to the OT, PT,
speech, and health services that he needs. He does not leave his classroom except
for community instruction and adapted physical education classes. The team
agrees that Ben's needs can be met in a general education second grade
classroom with supports and modifications as necessary to the second grade
curriculum.

Jack needs one hour per week of physical therapy outside the general education
classroom to increase flexibility and locomotor skills. The general physical
education class does not meet Jack's needs in this area. Consecutive one-month
trials have shown that Jack can make a successful adjustment to the general
curriculum and that he interacts favorably with his peers. The IEP team feels that
any additional exclusion from the general education classroom setting would be
counter- productive. The amount of services has decreased over the last two years
and it is evident that he does not require specialized sites or settings to maintain
normal progress in the general education curriculum.

John will be 21 years old in April. He receives his special education services in
work and community settings. These settings represent the least restrictive
environment for John, who is employed as a 3/4-time employee at the lumber
yard and who is working on independent living skills the remainder of his school
day at an apartment downtown.


LRE Considerations LRE requirements apply to all preschool children with disabilities who are
for Students entitled to receive free appropriate public education (FAPE). The least restrictive
Receiving Early environment continuum for preschool-aged children with disabilities includes
Childhood Special those early childhood settings designed primarily for children without disabilities.
Education Services These environments allow children with disabilities to participate in appropriate
activities and opportunities that support children achieving age-relevant abilities
and skills.

The school must ensure that each child’s placement is in the LRE in which the
unique needs of that child can be met, based upon the child’s IEP, and that meets
all of the other requirements of the law.

Special Education Section J summarizes the decisions made about direct and indirect services across
and Related all goals into concise descriptions of the services the child will receive. Prior to
Services this point, the team will have discussed and documented the characteristics of the
services along with development of the goals. For example, the IEP may state that
a student with a vision impairment requires advanced Braille instruction including
the use of assistive technology, consultation services regarding the student's
vision impairment, orientation and mobility services, and rehabilitation
counseling to address future vocational options. This example includes both
special education and related services to address the educational needs related to
the student's disability. The IEP team must discuss, determine and document the
specific service, the amount of time the service will be provided, the starting date
for each service, the anticipated duration, the service provider’s job title, and
where the service is to be provided. Breaks in the school year, such as summer
vacation, are not included as part of the normal school year.

Sec. 300.320 The IEP must include.
(4) A statement of the special education and related services and supplementary
aids and services, based on peer-reviewed research to the extent practicable, to
be provided to the child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that will be provided
to enable the child—
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and make progress in the general curriculum in accordance
with paragraph (a)(1) of this section and to participate in extracurricular
and other nonacademic activities; and
(iii)To be educated and participate with other children with disabilities and
nondisabled children in the activities described in this section;

Sec. 300.320 The IEP must include.
(7) The projected date for the beginning of the services and modifications
described in paragraph (a)(4) of this section, and the anticipated frequency,
location, and duration of those services and modifications.


Related Services Some students require related services to achieve their IEP goals. The list of
related services is not exhaustive and may include other developmental,
corrective, or supportive services if they are required to assist a child with a
disability to benefit from special education and receive free appropriate public
education. The complete listing and description of related services identified in
the IDEA 2004 are included in Appendix E.

Service providers may vary. In some cases, services might be provided by
persons from varying professional backgrounds and with a variety of position
titles, depending upon licensure and or certification requirements in North
Dakota. For example, counseling services might be provided by social workers,
psychologists, or guidance counselors. Occupational therapy, however, must be
provided by a licensed occupational therapist or certified occupational therapy
assistant.

Each related service defined under the IDEA 2004 may also include appropriate
administrative and supervisory activities that are necessary for program planning,
management, and evaluation.

The IDEA 2004 added interpreting services and school nurse services.
Interpreting services were added to the examples of related services in recognition
of the critical importance to children who are deaf or hard of hearing. Interpreting
services are based on the individual language needs of the child and include oral
transliteration services, cued language transliteration services, sign language
transliteration and interpreting services, and transcription services, such as
communication access real-time translation (CART), C-Print, and TypeWell; and
special interpreting services for children who are deaf-blind.

School health services and school nurse services mean health services that are
designed to enable a child with a disability to receive FAPE as described in the
child's IEP. School nurse services are services provided by a qualified school
nurse. School health services are services that may be provided by either a
qualified school nurse or other qualified person.

Related services do not include a medical device that is surgically implanted (e.g.
cochlear implants), the optimization of that devices’s functioning (e.g., mapping),
or the maintenance or replacement of that device. In the case of a cochlear
implant, “mapping” and “optimization” refer to adjusting the electrical
stimulation levels provided by the cochlear implant that is necessary for long-
term post surgical follow-up of a cochlear implant. Mapping a cochlear implant
and the costs associated with mapping, such as transportation costs and insurance
copayments, are not the responsibility of the school district. These services (and
costs) 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.


However, the school must provide any related services that the IEP team
determines is appropriate and is responsible for monitoring and maintaining
medical devices that are needed to maintain the health and safety of the child
(including breathing, nutrition, or operation of other bodily functions) while a
student is transported to and from school or is at school. This means that the
school is responsible for providing routine checks of the external components of a
surgically implanted device to make sure it is functioning properly. The exclusion
of mapping as a related service is not intended to deny a student with a disability
assistive technology (e.g., FM system), proper classroom acoustical
modifications, educational support services or routine checking to determine if
the external component of a surgically implanted device is working. The
exclusion of mapping as a related service does not exclude the student from
related services (e.g. speech and language services) that are necessary for the
child to benefit from special education services. (Source: CFR § 300.34(b); CFR
Analysis of Comments and Changes, pages 46569 and 46570)

Sec. 300.34 Related services
(a) General. As used in this part, the term related services means
transportation and such developmental, corrective, and other supportive
services as are required to assist a child with a disability to benefit from
special education, and includes speech-language pathology and audiology
services, interpreting services, psychological services, physical and
occupational therapy, recreation, including therapeutic recreation, early
identification and assessment of disabilities in children, counseling
services, including rehabilitation counseling, orientation and mobility
services, and medical services for diagnostic or evaluation purposes.
Related services also include school health services and school nurse
services, social work services in schools, and parent counseling and
training.
(b) Exception; services that apply to children with surgically implanted
devices, including cochlear implants.
(1) Related services do not include a medical device that is surgically
implanted, the optimization of that device's functioning (e.g.,
mapping), maintenance of that device, or the replacement of that
device.
(2) Nothing in paragraph (b)(1) of this section—
(i) Limits the right of a child with a surgically implanted device (e.g.,
cochlear implant) to receive related services (as listed in paragraph
(a) of this section) that are determined by the IEP Team to be
necessary for the child to receive FAPE.
(ii) Limits the responsibility of a public agency to appropriately
monitor and maintain medical devices that are needed to maintain
the health and safety of the child, including breathing, nutrition, or
operation of other bodily functions, while the child is transported
to and from school or is at school; or
(iii) Prevents the routine checking of an external component of a
surgically-implanted device to make sure it is functioning properly,
as required in Sec. 300.113(b).


Transportation

Typically, children with disabilities receive the same transportation services as
nondisabled children. A school must provide transportation as a related service if
it is required to assist the child with a disability to benefit from special education.
This includes transporting a preschool-aged child to the site at which the school
provides special education and related services to the child, if that site is different
from the site at which the child receives other preschool or childcare services. In
determining whether to include transportation in a child’s IEP, the IEP team must
consider how the child’s disability affects the child’s need for transportation,
including determining whether the child’s disability prevents the child from using
the same transportation provided to nondisabled children, or from getting to
school in the same manner as nondisabled children. The school must ensure that
any service is provided at public expense with no cost to the parent and that the
child’s IEP describes the transportation arrangement.

Even if a child’s IEP team determines that the child does not require
transportation as a related service, Section 504 of the Rehabilitation Act of 1973
requires that the child receive the same transportation provided to nondisabled
children. If a school transports nondisabled children, it must transport children
with disabilities under the same terms and conditions. For some children with
disabilities, transportation may be achieved by providing needed accommodations
such as lifts and other equipment adaptations on regular school transportation
vehicles. However, if a child’s IEP team determines that a student does not need
transportation as a related service, and the school transports only those children
whose IEPs specify transportation as a related service, and does not transport
nondisabled children, the school would not be required to provide transportation
to a child with a disability.

Sec. 300.34 (16) Transportation includes—
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses, lifts, and
ramps), if required to provide special transportation for a child with a
disability.

Length of Day An explanation or justification is required when it is determined by the team that
a student's needs dictate a school day that deviates from the normal school day for
peers who are not disabled. For example, some children will require a shortened
school day because they have health conditions that result in poor stamina. In
these cases, there may be legitimate reasons for allowing something other than the
school day required for nondisabled children. A school day could also be
lengthened to provide support services beyond the regular school day.

Extended School Under federal law, three basic principles apply to the provision of extended
Year school year services (ESY):
1) All children who are eligible for special education and related services are to
be considered for an extended year program.
2) All relevant information relating to the individual needs of the child must be
considered in determining whether ESY should be part of the child’s program.


3) The parents or guardians are entitled to full participation in the ESY decision
as part of the development of their child’s IEP.

To ensure free appropriate public education, the IEP team must consider and
document whether extended school year services are needed for each child. A
school district may not limit ESY services to particular categories of disability, or
unilaterally limit the type, amount, or duration of those services.

For some students, it is not possible to maintain skills that allow continued
placement in the least restrictive environment without extended school year
services. A program restricted to the standard number of school days per year
may cause severe losses of social, communication, behavioral, or academic skills
during the break in instruction.

The intent of extended school year (ESY) is to prevent regression of previously
learned skills that cannot be recouped in a reasonable length of time. An extended
school year provides services for the student to maintain his/her IEP goals. It is
not intended to introduce new skills; it means specialized instruction that assists
in preventing serious regression of previously learned skills.

The primary elements to be used in determining the need for extended school year
should include the likelihood of significant regression and the rate of probable
recoupment of skills. The IEP team should use regression/recoupment criteria for
determining the need for ESY services but a broad range of ESY factors must be
considered. The factors to be considered in making ESY placement decisions
should include but are not limited to the following:
• the type and severity of the student’s needs;
• parents’ ability to provide an educational structure at home;
• the age of the student;
• behavioral and physical problems;
• student’s ability to interact with nondisabled peers;
• curriculum areas that need continued attention;
• the student’s vocational needs;
• the potential of significant regression/recoupment loss in a skill or
behavior which is particularly crucial to reaching the goal of self-
sufficiency and independence from caretakers; and
• the extent to which data indicate the child has mastered and consolidated
an important skill or behavior at the completion of the standard school
year. A child is more likely to regress in a skill or behavior area if his/her
programming is interrupted before mastery and consolidation have been
achieved.


Sec. 300.106 Extended school year services.
(a) General.
(1) Each public agency shall ensure that extended school year services are
available as necessary to provide FAPE, consistent with paragraph (a)(2)
of this section.
(2) Extended school year services must be provided only if a child's IEP team
determines, on an individual basis, in accordance with §§300.320-
300.324, that the services are necessary for the provision of FAPE to the
child.
(3) In implementing the requirements of this section, a public agency may
not—
(i) Limit extended school year services to particular categories of
disability; or
(ii) Unilaterally limit the type, amount, or duration of those services.
(b) Definition. As used in this section, the term extended school year services
means special education and related services that—
(1) Are provided to a child with a disability—
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii)At no cost to the parents of the child; and
(2) Meet the standards of the SEA.

After the team has completed the discussion regarding ESY, the final part of
Section J on the IEP form should be completed. This will document the
justification for the decision that has been made by the team. Additional
information regarding Extended School Year Services is provided in Appendix F.

Summary on the For a brief summary of the changes in the IEP process as a result of IDEA 2004,
IDEA changes please refer to Appendix G to review the OSEP Topical Briefs.
regarding the IEP
Process


The Department of Public Instruction developed three separate IEP forms for use
Section III with students of different ages. The forms are as follows:
Instructions for • Individualized Education Program (Ages 6-15)
Completing the • Individualized Education Program – Early Childhood Special Education
IEP Form (Ages 3-5)
• Individualized Education Program – Secondary Transition (Ages 16 and
older)

The following instructions are intended to be a quick reference guide for filling out
the school age and early childhood IEP form. The underlying principles that guide
the IEP process are explained in greater detail in Section 1 of these guidelines.

This section does not include instructions and explanations for those items on the
form that are assumed to be self-explanatory.

A. Student Date of IEP Meeting. Enter the date when the planning meeting actually took place.
Information This should be the date to which parents mutually agreed and of which they were
notified. If more than one planning conference took place, enter the date of the latest
meeting. The meeting must be within 12 months of the previous annual review or, if
the meeting is for initial planning, it must be within 30 calendar days from the date it
is determined the child has a disability.
*For the Early Childhood IEP, this is the IEP starting date.

Grade. Select the grade in which the student is enrolled. For students who receive
services outside the general education classroom for the majority of their day, enter
the grade in which they will be interacting with peers of the same chronological age
who are not disabled. If there is a discrepancy in age between the student and peers,
explain this in Section I. Least Restrictive Environment.

For students age 5 and under, enter "PK (preschool/kindergarten)."

For students whose same age peers have typically graduated, continue to enter Grade
12 until this student graduates or exits the school program.

Age. Student age will automatically be calculated and entered by the TIENET
system.

Race/Ethnicity. The Race/Ethnicity categories are populated in TIENET from
District Enrollment data on STARS. If there are changes to the race at the annual IEP
meeting, changes must be made by the district in STARS.

Hispanic/Latino - A person of Cuban, Mexican, Puerto Rican, South or Central
American, or other Spanish culture or origin, regardless of race. Refers to Hispanic
and/or Latino.
American Indian or Alaska Native - A person having origins in any of the original
peoples of North and South America (including Central America) and who maintains
tribal affiliation or community attachment. (Does not include persons of
Hispanic/Latino ethnicity.)
Asian - A person having origins in any of the original peoples of the Far East,
Southeast Asia, or the Indian subcontinent. This includes, for example, Cambodia,
China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and
Vietnam.
(Does not include persons of Hispanic/Latino ethnicity.)


Black or African American - A person having origins in any of the Black racial groups
of Africa. (Does not include persons of Hispanic/Latino ethnicity.)
Native Hawaiian or Other Pacific Islander - A person having origins in any of the
original peoples of Hawaii, Guam, Samoa, or the Pacific Islands. (Does not include
persons of Hispanic/Latino ethnicity.)
White - A person having origins in any of the original peoples of Europe, the Middle
East, or North Africa. (Does not include persons of Hispanic/Latino ethnicity.)
Two or more races - A person having origins in two or more of the five race categories
listed immediately above. (Does not include persons of Hispanic/Latino ethnicity.)

Student's Primary Language and Communication Mode. Enter the communication
mode and primary language the student uses for communication. The purpose of
gathering this information is two-fold: (1) to determine whether assessment measures
need to be conducted in a language other than English or otherwise adapted; and (2) to
alert members of the IEP team to a possible language difference that may affect the
student's achievement and which should be considered in planning any instructional
intervention. Consider the student's age and how long English has been spoken.

A student whose primary language is not English may or may not currently be receiving
English Language Learner (ELL) services. A student's native language might also be
entered here as sign language if the student's mode of communication is signing.

Primary Language Spoken at Home. Enter the language spoken by the primary
caregivers in the home in which the student resides. Any discrepancy between the native
language of the student and the native language of the home should be noted and
considered in completing the IEP (e.g., an adopted child from another country; a student
who uses sign language and parents who do not).

Current Address. Enter the address where the student lives.

Serving School, School District of Residence, Resident School Building, Transferred
within district, Open Enrolled, Agency Placed, and Home Education. These terms
are included to clarify the responsibilities of the school of residence (e.g., for covering
the costs of a student's education) and issues that have arisen regarding the least
restrictive environment. In some cases, the student is not attending the school that he/she
would attend if the student did not have a disability. These items provide the information
necessary to determine if there is an LRE issue or not. For example, if the student is
being served at Washington School, but is a resident of the Jefferson School catchment
area, LRE may be a concern. If however, the student was open enrolled at Washington
School by his/her parents, LRE is not a concern for the student.

• Transferred within district refers to child transferring to another school building
(plant) within the district.
• Open-enrolled refers to a choice made by the child's parents.
• Agency-placed means that a decision has been made by an agency other than the
school district to place the child in a foster home, residential facility, or some other
setting for a purpose other than education.
• Home education refers to the parents' decision to educate their child in their own
home.


B. Parent/Guardian Name of Parent. Enter each parent in a separate parent section. This information
Information will automatically be transferred to the team member section. In this way the user
will be able to identify the attendance status of each individual parent.

Home Telephone Number. Enter the telephone number(s) for the home of the
parent(s).

Other Telephone Number. Enter another telephone number where at least one
of the parents can be reached during the day.

Email address (Optional). Enter the email address for the parent(s).

Other. It is necessary to differentiate between a guardian, a surrogate parent, and
a foster parent. At times there may be another individual attending the IEP in the
parent’s place. That individual is identified here. On TIENET a dropdown box is
provided to select the individual attending as parent.

Further information regarding surrogate parents, guardians, and foster parents is
included in North Dakota Guidelines: Surrogate Parent.

C. IEP Information IEP Case Manager. Enter the name of the person who has the responsibility to
coordinate the instructional related and/or support services specified in the
student's IEP.

Email Address (Optional). Enter the email address for the case manager.

Telephone Number. Enter the number where the IEP Case Manager can be
reached or a message left during the working day.

IEP Type. Check whether the IEP is initial or annual review/revision. An initial
IEP is the first IEP written for a student. It is differentiated here from annual
review/revised IEPs for the purpose of highlighting the required differences in
due process procedures.

Primary/Secondary Disabilities. Identify the student's primary disability, that
which most interferes with education.

Secondary disabilities should be indicated to assure that all appropriate personnel
attend the team meeting and that all unique needs are addressed.

The 12 disability categories used in North Dakota are: Autism, Deaf-Blindness,
Emotional Disturbance, Hearing Impairment (including Deafness), Intellectual
Disability, Non-Categorical Delay, Other Health Impairment, Orthopedic
Impairment, Speech-Language Impairment, Specific Learning Disability,
Traumatic Brain Injury, and Visual Impairment (including Blindness).

“Preschool” is not considered to be a disability. A more detailed explanation for
the use of non-categorical delay (NCD) as a reporting option for a primary
disability for children ages 3 – 9 is given in Section I, page 7.


Date of Last Comprehensive Individual Evaluation. Enter the date the last
evaluation was completed in which all areas of possible special education need
were evaluated and eligibility determined and documented on the most current
Integrated Written Assessment Report. This is the date from which the need for
the next comprehensive three year reevaluation is determined. Other forms of
evaluation may occur more frequently, depending on the needs and age of the
student.
List Names of All Team Members. List all team members who are involved
with the planning or provision of the services to the student, along with their
titles, even if they did not attend the meeting. For example, a teacher should
indicate grade level or content area; an administrator should indicate principal,
director of special education, etc. For those required participants that were not in
attendance, an IEP excusal form must be completed. The IEP excusal process is
explained in Section 1 of these guidelines.

In situations in which the student is the resident of another district, teams are
reminded that they must invite a representative of the resident district to
participate in the IEP decision making regarding the child.

A detailed discussion of IEP team members, including their roles and
responsibilities, is included in Section I of these guidelines. A listing of IEP
meeting participants can be found beginning on page 21.

D. Present Levels of The team will write a summary of the student's unique patterns of functioning.
Academic This summary of present levels of academic achievement and functional
Achievement and performance (PLAAFP) will lay a foundation for the subsequent components of
Functional the IEP. The performance levels should be brief narrative statements that
Performance summarize the discussion of the student's total functioning. These statements
should (a) address significant strengths and deficits, (b) be understandable by the
parents and general educators, and (c) give the reader a clear picture of how the
student is functioning in all relevant areas at the time the IEP is being initiated or
updated.

For this section of the IEP it is necessary to provide only narrative summary
information. Avoid technical terms, professional jargon and in-depth detail. Do
not write a laundry list of standard scores and test names or acronyms. Detailed
information from formal assessments will be reported elsewhere (i.e., the
Integrated Written Assessment Report).

Prepare the PLAAFP based on the following considerations:
• The strengths of the child and the concerns of the parents for enhancing
the education of their child;
• The results of the initial or most recent evaluation of the child; and
• As appropriate, the results of the child’s performance on the ND State
Assessment or district-wide assessments.

A more detailed description of the process for developing the present levels of
academic achievement and functional performance part of the IEP is given in
Section II of these guidelines.


E. Considerations The IEP team must consider the special factors resulting from the student’s needs
of Special Factors and the impact these factors have on the student’s involvement and progress in
the general education curriculum.

F. Annual Goals, Content Standards Reference (Optional): The team has the option to select
Short-Term information from the NDCAS North Dakota Content Standards. The general
Objectives, curriculum is derived from the standards, and the state assessments measure
Characteristics of a child’s performance on those standards. In using standards as the basis of
Services, and IEP decision making, teams target their efforts to providing the needed
Periodic Review of instruction and supports so that the student with a disability is able to
Services achieve the same expectations that schools hold for all students. ) The grade
or course standards and benchmarks, along with a district or schools general
curriculum expectations, serve as a guiding framework for constructing
goals in the IEP. The ND content and achievement Standards serve as a tool
for identifying the expectations for a given student. Additional information
on the use of standards in the IEP process is provided in Appendix E

Annual Goals
Using the present levels of academic achievement and functional performance as
the basis, select and develop one or more annual goals. For each goal, include
four components:

• the behavior or skill being addressed;
• the desired ending level of achievement;
• the intent or purpose for accomplishment; and
• characteristics of services (only for goals not requiring short-term
objectives)

Characteristics of Services. For each goal or objective, describe the
characteristics of services. Use the following questions to assist in developing this
description. For students who are participating in the alternate assessment,
characteristics of services are included in the objectives. An IEP team may decide
it is appropriate to include STOs for a student who is not taking alternate
assessment.
• Can the performance specified in this goal/objective be met in general
education activities without modification or adaptation? If no, why not?
• Can the performance specified in this goal/objective be met in general
classroom activities if appropriate modifications are made? If yes, what
types of modifications are necessary and what special education services
are needed?


• Can the performance specified in this goal/objective be met if the content
difficulty is altered or if specially designed instruction (totally different) is
provided?
• Can the performance specified in this goal/objective be met if supportive
training related to the disability is provided (e.g., functional
communication training, orientation and mobility, fine/gross motor
development, etc.)?

Periodic Review of Services. State how frequently the student’s progress will be
reported to parents. The progress reports must include information on progress in
the general curriculum as well as progress toward the annual goals.

Progress Toward Goal: The periodic review includes a description of the
student’s progress toward meeting each goal. The review must utilize the
same measurement criteria specified in the goals. It should clearly specify
how the student’s performance at the time of the review is different from the
performance observed at the time the IEP was written, addressing any lack
of expected progress toward annual goals.

Short-Term Objectives. For those children taking the alternate assessment,
prepare two or more objectives. For each objective, include five components:

• conditions or circumstances under which the behavior is to be performed;
• specific behaviors to be performed;
• criteria for attainment or level of performance statements which generally
address how well the student is expected to perform the behavior;
• evaluation procedures;
• schedule for determining whether objectives have been met; and
• characteristics of services.

Sequence short-term objectives, as appropriate.

Refer to Section II for more information.

G. Adaptation of Summarize the accommodations, supports and adjustments required across goals.
Educational Items that should be included in this section are: use of paraprofessionals to assist
Services the student; modification of curriculum, grading, test taking (including district-
wide or statewide assessment), note-taking; assistive technology devices; care and
monitoring of auditory aids; and other appropriate matters. NIMAS is a new
provision in IDEA 2004 that was designed to maximize access to the general education
curriculum for students who are blind or visually impaired, or who have other print
disabilities.

The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004)
requires states to address the critical difficulty in obtaining accessible textbooks for
students with print disabilities by adopting a new digital format, the National
Instructional Materials Accessibility Standard (NIMAS). For more information refer to
NDDPI for additional information.

Participation in District-wide and Statewide Assessment. Check the
appropriate box to indicate how the student will participate in district-wide and
statewide assessments. The team should consider the next testing window when


making this determination on the current IEP. The team must provide justification
for not participating in district or statewide assessments and why the alternate
assessment is appropriate. Please see page 48 in this guideline for more
information on State Assessment options.

H. Activities with Interactions with peers who are not disabled must be specified on the IEP in the
Students who are areas of physical education, nonacademic and extracurricular activities, and
not Disabled and program options.
Participation in
Academic and Physical Education (PE). Indicate the type of PE program in which the student
Nonacademic will participate using the following guidelines.
Activities
1. Regular Physical Education (PE) with students who are not disabled. If a
student with a disability can participate fully in the regular PE program
without any special modifications to compensate for the student's
disability, it would not be necessary to describe the PE program in the
IEP. On the other hand, if some modifications to the regular PE program
are necessary for the student to be able to participate in that program,
those modifications must be described in the IEP.
2. Adaptive/Specially Designed Physical Education (PE). If a student with a
disability needs a specially designed PE program, that program must be
addressed in all applicable areas of the IEP (e.g., PLAAFP, goals and
objectives, and services to be provided). However, these statements would
not have to be presented in any more detail than the other special
education services included in the student's IEP.

A thorough explanation of physical education considerations for students in
residential schools and separate facilities is provided in Section II of this
guideline.

Program Options. Indicate the educational program options in which the
student will be participating with nondisabled peers. The deliberations of the IEP
team, including current options discussed and new options to be developed, must
be documented. Examples of educational program options include art, music,
industrial arts, consumer education, family and consumer science, physical
education and vocational education. Options for early childhood special education
programs may include library or story time.

Nonacademic and Extracurricular Services and Activities. Indicate other
program options in which the student will be participating with students who are
nondisabled in the school setting for nonacademic and extracurricular services
and activities. Some examples of these include athletics, school sponsored clubs,
school plays, school yearbook or newspaper staff. Each IEP team may consider
other activities unique to the school also. Options for early childhood special
educational programs, nonacademic and extracurricular services and activities
may include play groups or snack time.


Program Options. Indicate the educational program options in which the
student will be participating with nondisabled peers. The deliberations of the IEP
team, including current options discussed and new options to be developed, must
be documented. Examples of educational program options include art, music,
industrial arts, consumer education, family and consumer science, physical
education and vocational education. Options for early childhood special education
programs may include library or story time.

Nonacademic and Extracurricular Services and Activities. Indicate other
program options in which the student will be participating with students who are
nondisabled in the school setting for nonacademic and extracurricular services
and activities. Some examples of these include athletics, school sponsored clubs,
school plays, school yearbook or newspaper staff. Each IEP team may consider
other activities unique to the school also. Options for early childhood special
educational programs, nonacademic and extracurricular services and activities
may include play groups or snack time.

I. Least Restrictive Complete this section indicating team decisions regarding setting, justification for
Environment (LRE) options selected, and harmful effect.

Environmental Setting. Check the appropriate Environmental Setting.
Definitions of Educational Environments for Children Ages 6-21:

• Inside the regular class 80 percent or more of the day. Unduplicated total who
were inside the regular classroom for 80 percent or more of the school day.
(These are children who received special education and related services
outside the regular classroom for less than 21 percent of the school day). This
may include children with disabilities placed in
regular class with special education/related services provided within
regular classes;
regular class with special education/related services provided outside
regular classes;
regular class with special education services provided in resource
rooms.
• Inside the regular class no more than 79 percent of the day and no less than 40
percent of the day. Unduplicated total who were inside the regular classroom
between 40 and 79% of the day. (These are children who received special
education and related services outside the regular classroom for at least 21
percent but no more than 60 percent of the school day.) Do not include
children who are reported as receiving education programs in public or private
separate school or residential facilities. This may include children placed in:
resource rooms with special education/related services provided within
the resource room; or
resource room with part-time instruction in a regular class.


• Inside the regular class for less than 40 percent of the day. Unduplicated total
who were inside the regular classroom less than 40 percent of the day. (These
are children who received special education and related services outside the
regular classroom for more than 60 percent of the school day). Do not include
children who are reported who are reported as receiving education programs
in public or private separate school or residential facilities. This category may
include children placed in:
self-contained special classrooms with part-time instruction in a
regular class; or
self-contained special classrooms with full-time special education
instruction on a regular school campus.

• Separate School. Unduplicated total who received education programs in
public or private separate day school facilities. This includes children with
disabilities receiving special education and related services, at public expense,
for greater than 50 percent of the school day in public or private separate
school. This may include children placed in:
public and private day schools for students with disabilities;
public and private day schools for students with disabilities for a
portion of the school day (greater than 50 percent) and in regular
school buildings for the remainder of the school day; or
public and private residential facilities if the student does not live at
the facility.

• Residential Facility. Unduplicated total who received education programs and
lived in public or private residential facilities during the school week. This
includes children with disabilities receiving special education and related
services, at public expense, for greater than 50 percent of the school day in
public or private residential facilities. This may include children placed in:
public and private residential schools for students with disabilities; or
public and private residential schools for students with disabilities for
a portion of the school day (greater than 50 percent) and in separate
day schools or regular school buildings for the remainder of the school
day.

Do not include students who received education programs at the facility, but
do not live there.

• Homebound/hospital. Unduplicated total who received education programs in
homebound/hospital environment includes children with disabilities placed in
and receiving special education and related services in:
hospital programs, or
homebound programs.

Do not include children with disabilities whose parents have opted to home-
school them and who receive special education at the public expense.


• Correctional facilities. Unduplicated total who received special education in
correctional facilities. These data are intended to be a count of all children
receiving special education in:
short-term detention facilities (community-based or residential), or
correctional facilities.

• Parentally Placed in Private Schools. Unduplicated total who have been
enrolled by their parents or guardians in regular parochial or other private
schools and whose basic education is paid through private resources and who
receiving special education and related services at public expense from a local
educational agency or intermediate educational unit under a service plan.
Include children whose parents chose to home-school them, but who receive
special education and related services at the public expense. Do not include
children who are placed in private schools by the LEA.

Environmental Setting. Check the appropriate Environmental Setting.

Definitions of Educational Environments for Children Ages 3-5:

The educational environment categories below distinguish between children
participating in regular early childhood programs (A & B), in special education
programs (C), or in neither a regular early childhood program nor a special
education program (D). In addition, the reporting categories distinguish where
children receive the majority of their special education and related services.

Use the following decision rules to determine the appropriate educational
environment category for reporting each 3 through 5-year old. Please note that
the order of the categories as listed on the table for reporting children with
disabilities ages 3-5 does not reflect a continuum from least to most restrictive.
Selection of the appropriate reporting category involves a multi-stage process, as
follows.

1. The first factor to consider is whether the child is attending a Regular Early
Childhood Program, as defined below.

Regular Early Childhood Program. A Regular Early Childhood Program
is a program that includes a majority (at least 50 percent) of nondisabled
children (i.e., children not on IEP’s). This category may include, but is
not limited to:

• Head Start;
• kindergartens;
• preschool classes offered to an eligible pre-kindergarten
population by the public school system;
• private kindergartens or preschools; and
• group child development center or child care.


If the child is attending a Regular Early Childhood Program, s/he is to be
reported within either Row Set A (A1 or A2) or Row Set B (B1 or B2), as
directed below. If the child does not attend a Regular Early Childhood
Program at all, skip to instruction #2, below.

Row set A is for reporting children attending a Regular Early Childhood Program
at least 10 hours per week.

If the child attends a Regular Early Childhood Program at least 10 hours
per week, refer to the criteria listed under instruction #3 below, titled
‘Reporting Special Education and Related Services Environment,’ to
identify which of categories A1 or A2 best represents the environment in
which the child receives the majority of hours of special education and
related services.

Row set B is for reporting children attending a Regular Early Childhood Program
less than 10 hours per week.

If the child attends a Regular Early Childhood Program less than 10 hours
per week, refer to the criteria listed in instruction #3 below, titled
‘Reporting Special Education and Related Services Environment,’ to
identify which of categories B1 or B2 best represents the environment in
which the child receives the majority of hours of special education and
related services.

2. If the child is NOT at all attending a Regular Early Childhood Program as
defined above, the child is to be reported within either Row Set C or Row Set
D. Such children would be either ‘Attending a Special Education Program
(row C1, C2, or C3), OR ‘Attending Neither a Regular Early Childhood
Education Program Nor a Special Education Program’ of any kind, in which
case the child would be receiving special education and related services either
at Home (row D1) or in a Service Provider Location or some Other Location
(row D2).

If the child attends a Special Education Program, as defined below, report
the child in row C1, C2, or C3.

Special education program. A Special Education Program includes less
than 50 percent nondisabled children (i.e., children not on IEP’s). Special
education programs include, but are not limited to:

• special education classrooms in
o regular school buildings;
o trailers or portables outside regular school buildings;
o child care facilities;
o hospital facilities on an outpatient basis;
o other community-based settings;

• separate schools; and
• residential facilities.
Report the child in one of the three bulleted environments listed just
above, even if the child also receives special education services in the
home (row D1) or in the service provider location or some other location
(row D2).

If the child attends neither a Regular Early Childhood Program nor a
Special Education Program as defined above, the child is to be reported in
either row D1 or D2, dependent upon whether the child receives special
education and related services at home (row D1) or in the service provider
location or some other location (row D2), as respectively described below:

• (D1) Home. If the child attends neither a Regular Early
Childhood Program nor a Special Education Program, the next
factor to consider is whether the child receives some or all of
his/her special education and related services in the home. Report
the child in this category (D1), even if the child also receives
special education and related services in a service provider
location or some other location that is not in any other category
(D2).

• (D2) Service Provider location or some other location not in any
other category. If the child attends neither a Regular Early
Childhood Program nor a Special Education Program and does not
receive any special education and related services in the home,
report the child in row D2.

3. Reporting Special Education and Related Services Environment

If you report that a child attends a Regular Early Childhood Program, you must
also select the category that best represents the environment in which the child
receives the majority of hours of special education and related services and the
number of hours that the child spends in the Regular Early Childhood Program
each week.

The educational environment categories are as follows:

Row A1. The child is receiving the majority of hours of special education
and related services in the Regular Early Childhood Program
(and the child attends a Regular Early Childhood Program at least
10 hours per week).

Row A2. The child is receiving the majority of hours of special education
and related services in some other location (and the child attends
a Regular Early Childhood Program at least 10 hours per week).


Row B1. The child is receiving the majority of hours of special education
and related services in the Regular Early Childhood Program (and
the child attends a Regular Early Childhood Program less than 10
hours per week).

Row B2. The child is receiving the majority of hours of special education
and related services in some other location (and the child attends
a Regular Early Childhood Program less than 10 hours per week).

If you report that a child attends a Special Education Program, you must also
select the category that best represents the specific type of special education
program that the child attends. These programs include:

Row C1. Separate class. A child who receives special education program in a
class with less than 50% nondisabled children. (Do not include
children who also attended a regular early childhood program. These
children should be reported in columns A1, A2, or A3.)

Row C2. Separate school. A child who receives education programs in public
or private day schools designed specifically for children with
disabilities. (Do not include children who also attended a regular early
childhood program. These children should be reported in columns A1,
A2, or A3.)

If you report that a child attends neither a Regular Early Childhood Program nor a
Special Education Program, you must select the category that best represents the
specific environment in which the child receives the majority of hours of special
education and related services. These environments include:

Row D1. Home. A child who receives special education and related services in
the principal residence of the child's family or caregivers, and who
attended neither a Regular Early Childhood Program nor a Special
Education Program provided in a separate class, separate school, or
residential facility. Include children who receive special education
both at home and in a service provider location or some other location
that is not in any other category (row D2). The term caregiver
includes babysitters.

Row D2. Service provider location or some other location that is not in any
other category. A child who receives all of their special education and
related services from a service provider or some other location that is
not in any other category, and who attended neither a Regular Early
Childhood Program nor a Special Education Program provided in a
separate class, separate school, or residential facility. For example,
speech instruction provided in:

• private clinicians’ offices,
• clinicians’ offices located in school buildings, and hospital
facilities on an outpatient basis.


LRE Justification. In Section I the IEP team must document why the options
selected in determining the environmental setting are the most appropriate and
least restrictive. The statements must be individualized and based on the needs of
the student.

Harmful Effect. Check either "Yes" or "No" to document the team's decision
regarding whether there is potential harmful effect to the student in the placement
selected by the team. If the team answers "yes" it must document the concern on
the IEP form and explain what will be done to minimize the harmful effect.

J. Special Enter the specifics of services to be provided, including what service, when, for
Education, Related what duration, by whom (job title), and where. It is imperative to provide accurate
Services and/or information, particularly for students who are served under contract to another
Agency Transition school district. This information is the basis for calculating charges and is subject
Services to audit.

Service. Enter the specific service that will be provided. This may include special
education instructional services (directly provided to the student, or indirectly
provided to the student via consultation or training to other personnel), or related
services.

Related services means transportation and such developmental, corrective, and
other supportive services as are required to assist a child with a disability to
benefit from special education. It includes speech-language pathology and
audiology services, interpreting services, psychological services, physical and
occupational therapy, recreation, including therapeutic recreation, early
identification and assessment of disabilities in children, counseling services,
including rehabilitation counseling, orientation and mobility services, medical
services for diagnostic or evaluation purposes, school health and school nurse
services, social work services in schools, and parent counseling and training. For
detailed definitions of related services see Appendix F Federal Regulations
Section 300.34 Related Services.

Minutes/Week. State the actual minutes per week of all indirect as well as direct
services that will be provided. For example, if a special education teacher works
directly with a student for ten hours per week and consults with the classroom
teachers one hour each week, the amount of service shown on the IEP is ten hours
of direct SLD services and one hour of consultation per week.

When services are provided on less than a weekly basis, they must be reported in
a manner that clearly conveys the intent of the schedule. For example, if services
are to be provided for 60 minutes every other week, this should be clearly stated
on the IEP; do not calculate a weekly average of 30 minutes per week in this case.
To further clarify services in this example, “every other week” is preferable to
“the first and third Monday of the month”, since some months have more than
four Mondays.

Starting Date. Enter the specific date (month, day and year) on which the service
will begin. It is possible that some services may be initiated after others.

Duration. Enter the amount of time needed for the identified service.


Service Provider. Identify the job title for each separate service, e.g., speech-
language pathologist, LD Teacher.

Location of Services. Identify the building name and room (as a room number or
environment, such as general education classroom, lunchroom, gymnasium,
vocational center, etc.)

Length of School Day. When it is determined by the team that a student's needs
dictate a school day that deviates from the normal school day for peers who are
not disabled, an explanation or justification is required. On the IEP form, check
the sentence that best describes the length of the student's school day. If the team
determines that the student will attend for a shorter or longer school day than
his/her peers, it must explain why this is necessary.

For children who are eligible for kindergarten, an explanation or justification is
required if the amount of time varies from the school district's kindergarten
policy.

Extended School Year. An annual IEP applies to the normal school year (as
defined by individual school district calendars) and typically does not include
breaks and summer vacation. If individual needs of the student require
programming during school holidays, for an entire twelve-month period, or an
extended school year, the IEP must state specifically those additional time
periods. Check the sentence in this section of the IEP form that reflects the team's
decision about extended school year services. If the team determines that
additional data must be collected before a decision is made, a date for the next
team meeting must be recorded on the form. The team's justification for its
decision regarding ESY must also be written.

An extended school year must be considered for every student for whom an IEP is
written, regardless of the disability.

Appendix A

State Performance Plan 2005-2010

State Performance plan 2005 – 2010 Indicators

The Three Monitoring Priorities:
• Free appropriate public education in the least restrictive environment (FAPE in
the LRE).
• Disproportionality by race/ethnicity.
• Effective general supervision.

FAPE in the LRE:
The Individualized Education Program (IEP) describes the specific services provided by
special education and related services staff that a child with a disability requires to meet
his or her individual needs. These services are provided in the least restrictive
environment (LRE). This means children with disabilities are educated to the greatest
extent appropriate in the same settings that are offered to all students. Services
appropriate for children with disabilities to achieve educational success through the
public education system are offered without extra fees to the parent. This is free
appropriate public education, otherwise known as FAPE.

Monitoring for FAPE in the LRE allows NDDPI, school districts, and parents to ensure
that, as appropriate, children with disabilities are educated in the general education
setting while receiving the services necessary for positive educational results. Indicators 1
through 8 monitor FAPE in the LRE. These include increasing the graduation rate with a
regular diploma, reducing the dropout rate, mastery of state grade-level content standards
in mathematics and reading, suspension and expulsion rates as compared to children
without disabilities, and the percentage of students with disabilities who are educated in
various settings outside the general classroom. Indicators 6 and 7 are specific to the
placement of preschool children and positive early childhood outcomes. Indicator 8 is the
final indicator in this priority. Indicator 8 measures the percentage of parents who report
their school facilitated parent involvement as a means of improving services and results
for students with disabilities.

Indicator 1: Percent of youth with IEPs graduating from high school with a regular
diploma compared to percent of all youth in the State graduating with a regular diploma.

Indicator 2: Percent of youth with IEPs dropping out of high school compared to the
percent of all youth in the State dropping out of high school.

Indicator 3: Participation and performance of children with disabilities on statewide
assessment:
a. Percent of districts meeting the State’s AYP objectives for progress for
disability subgroup
b. Participation rate for children with IEPs in a regular assessment with no
accommodations; regular assessment with accommodations; alternate
assessment against grade level standards; alternate assessment against

Appendix A
Page 1 of 3

c. Proficiency rate for children with IEPs against grade level standards and

Indicator 4: Rate of suspension and expulsion:
a. Percent of districts identified by the State as having a significant discrepancy
on the rates of suspensions and expulsions of children with disabilities for
greater than 10 days in a school year; and
b. Percent of districts identified by the State as having a significant discrepancy
in the rates of suspensions and expulsions of greater than 10 days in a school
year of children with disabilities by race and ethnicity.

Indicator 5: Percent of children with IEPs aged 6 through 21:
a. Removed from regular class less than 21% of the day;
b. Removed from the regular class greater than 60% of the day; or
c. Served in public or private separate schools, residential placements, or
homebound or hospital.

Indicator 6: Percent of preschool children with IEPs who received special education and
related services in settings with typically developing peers (e.g., early childhood settings,
home and part time early childhood/part time early childhood special education services.

Indicator 7: Percent of preschool children with IEPs who demonstrate improved:
a. Positive social-emotional skills (including social relationships);
b. Acquisition and use of knowledge and skills (including early language
/communication and early literacy); and
c. Use of appropriate behaviors to meet their needs.

Indicator 8: Percent of parents with a child receiving special education services who
report that schools facilitated parent involvement as a means of improving services and
results for children with disabilities.

Disproportionality
Disproportionality refers to comparisons made between groups of students by race or
ethnicity or language who are identified for special education services. Where students
from particular ethnic or linguistic groups are identified either at a greater or lesser rate
than all other students then that group may be said to be disproportionately represented in
special education. Indicators 9 and 10 monitor disproportionality in ND schools

Indicator 9: Percent of districts with disproportionate representation of racial and ethnic
groups in special education and related services that is the result of inappropriate
identification.

Indicator 10: Percent of districts with disproportionate representation of racial and ethnic
groups in specific disability categories that is the result of inappropriate identification.

Appendix A
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General Supervision
General supervision monitors and ranks districts and schools based on achievement and
indicators that are descriptive of the learning environment, professional environment,
parent and community involvement as well as program compliance to determine the areas
in greatest need of technical assistance. The ranking system is based on local and state
targets based on the state performance plan. The NDDPI monitors for compliance,
assesses school needs, assists in the development of the school improvement plan, and
provides guidance and resources for the corresponding professional development plans.
Although the entire SPP indicators are included in the data required for general
supervision, the balance of the indicators are specific to this priority.

Indicator 11: Percent of children with parental consent to evaluate, who were evaluated
and eligibility determined within 60 days (or State established timeline).

Indicator 12: Percent of children referred by Part C prior to age 3, who are found eligible
for Part B, and who have an IEP developed and implemented by their third birthdays.

Indicator 13: Percent of youth aged 16 and above with an IEP that includes coordinated,
measurable, annual IEP goals and transition services that will reasonably enable the
student to meet the post-secondary goals.

Indicator 14: Percent of youth who had IEPs, are no longer in secondary school and who
have been competitively employed, enrolled in some type of post-secondary school, or
both, within one year of leaving high school.

Indicator 15: General supervision systems (including monitoring, complaints, hearings,
etc) identifies and corrects noncompliance as soon as possible but in no case late than one
year from identification.

Indicator 16: Percent of signed written complaints with reports issued that were resolved
within 60 day timeline or a timeline extended for exceptional circumstances with respect
to a particular complaint.

Indicator 17: Percent of fully adjudicated due process hearing requests that were fully
adjudicated within the 45 day timeline or a timeline that is properly extended by the
hearing officer at the request of either party.

Indicator 18: Percent of hearing requests that went to resolution sessions that were
resolved through resolution session settlement agreements.

Indicator 19: Percent of mediations held that resulted in mediation agreements.

Indicator 20: State reported data (618 and State Performance Plan and Annual
Performance Report) are timely and accurate.

Appendix A
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Appendix B

Secondary Transition IEP Process

The IEP Process for Secondary Transition
IDEA 2004 regulations require that transition services be incorporated into the Individualized
Education Program (IEP) for a student with disabilities no later than the first IEP to be in effect
by the time the student turns 16. However, transition planning may occur for a student at a
younger age if it is deemed appropriate by the IEP team.

Transition planning is an ongoing and results-oriented process that promotes relevant
instructional experiences within the least restrictive environment, with community based
experiences.

Transition drives the IEP process to prepare the student for the changes and demands of life after
high school and is directed by the postsecondary goals of the student.
Transition planning also allows the entire community, especially the family, the school, and the
adult service agencies to share responsibility in the transition of the student.

Transition services are defined in IDEA 2004 as a coordinated set of activities for a student with
a disability, designed within a result-oriented process, and focused on improving the academic
and functional achievement of the student. This coordinated set of activities should facilitate the
student’s movement from school to post-school activities. These post-school activities may
include postsecondary education, vocational education, integrated employment (including
supported employment), continuing and adult education, adult services, independent living,
and/or community participation.

Transition services are based on the individual student’s needs, taking into account the student’s
strengths, preferences, and interests. Students’ success will depend on their active participation
in the setting of postsecondary goals and planning a coordinated set of services to achieve those
goals. The IEP team must develop an educational program plan designed to prepare the student
for whatever he/she desires to do after high school. It must be updated annually thereafter, and
include:

• Measurable postsecondary goals based upon age appropriate transition assessments related
to education or training, employment, and if appropriate, independent living.
• The course of study (multi-year description of the courses and educational experiences
needed to assist the student in reaching their postsecondary goals).
o This includes identification of graduation requirements of the district and anticipated
month and year of graduation of the student. If the student will not exit secondary
school with a regular high school diploma, the team must identify the anticipated
alternative document approved by the district that the student will receive upon
completion of high school.
o No later than the one year before the student turns 18 a discussion and documentation
of the Transfer of Rights.
• The coordinated set of strategies and activities needed to assist the student in reaching those
postsecondary goals, including interagency responsibilities, and linkages, if appropriate.
These strategies and activities should encompass: instruction, related services, community
experiences, the development of employment and other post-school adult living objectives,

Appendix B
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and when appropriate, the acquisition of daily living skills and functional vocational
evaluation.

Prior to students exiting: For students who are finishing high school due to graduation with
a regular diploma or due to exceeding the age of eligibility, the school must provide the
student with a summary of the student’s academic achievement and functional performance.
This summary of performance must also include recommendations on how to assist the
student in meeting his/her postsecondary goals.

Transition IEP Sequence
If transition planning is to be effective, all of the discussion and decision making in the IEP must
be based on the postsecondary goals of the student. In other words, all of the components of the
IEP must be reviewed – that is, the present levels of academic achievement and functional
performance, consideration of special factors, transition services statements, annual goals, least
restrictive environment, related services, and participation in regular education as interrelated
components.

This rational and sequence is a shift from the previous
Transition IEP Sequence
process of using a three page attachment to document
transition services.
• Page 1 of the IEP
• Review or revise Measurable For transition to be discussed and documented
Postsecondary Goals accurately and logically, it is critical to understand the
• Present Levels of Academic flow of the process as described in the Transition
Achievement and Functional IEP Sequence. Following the recommended
Performance sequence allows the IEP team to address long term
• Consideration of Special Factors plans and identify services to be provided by both the
• Review or develop Transition school district and other agencies, without duplication
Services of topical discussions.
o Course of Study & graduation
requirements The team should discuss in sequence, the student’s
o Transfer of Rights (at age 17) post secondary goals, the present levels of academic
o Coordinated Set of Strategies achievement and functional performance, courses to
and Activities/Agency be taken, strategies and activities needed to assist the
Collaboration & student in reaching his/her post secondary goals, the
Responsibilities unmet needs of the student, and then finally develop
• Annual Goals & Objectives, when and prioritize appropriate annual goals.
appropriate.
• Adaptations of Educational Services Postsecondary Goals
• Description of activities with The team should begin its discussion surrounding a
students who are not disabled transition IEP by considering the student’s long range
• Least Restrictive Environment plans after high school and to what extent supports
Justification will be necessary in the areas of education or training,
• Special Education & Related employment and, independent living skills, when
Appendix B
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appropriate for the student. This section differs from the Present Levels of Academic
Achievement and Functional Performance (PLAAFP). Measurable postsecondary goals are
defined as observable outcomes that a student wishes to attain after exiting high school or is no
longer eligible for services. A measurable postsecondary goal is not the process of pursuing or
moving toward a desired outcome.
The PLAAFP identifies a student’s current status. As a student gains skills and knowledge and
moves towards graduation, there should be less variance between the two sections.
Postsecondary goals are required in the following areas: Education or training; Employment,
and where appropriate for the student, Independent Living.

Section 300.320 (b)(1)-
Appropriate measurable postsecondary goals based upon age appropriate transition
assessments, related to training, education, employment, and where appropriate,
independent living skills…

Definitions:

Education/Training is defined as enrollment in (a) community or technical college (2-year
program), (b) college/university (4-year program), (c) compensatory education program, (d) a
high school completion document or certificate class (e.g., Adult Basic Education, General
Education Development [GED]), (e) short-term education or employment training program (e.g.,
Workforce Investment Act [WIA], Job Corps, Vocational Rehabilitation), or (f) vocational
technical school, which is less than a two year program.

• Employment is defined as (a) competitive, (b) supported, or (c) sheltered.

Competitive employment is work (a) in the competitive labor market that is performed on a full
or part-time basis in an integrated setting and (b) is compensated at or above the minimum wage,
but not less than the customary wage and level of benefits paid by the employer for the same or
similar work performed by individuals who are not disabled.

Supported employment is competitive work in integrated work settings, or employment in
integrated work settings in which individuals are working toward competitive work consistent
with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed
choice of the individuals, for individuals with the most significant disabilities for whom
competitive employment has not traditionally occurred; or for whom competitive employment
has been interrupted or intermittent as a result of a significant disability; and who, because of the
nature and severity of their disability, need intensive supported employment services.

Sheltered employment refers to “an accredited occupationally-oriented facility, including a work
activities center, operated by a private nonprofit agency, which, except for its administrative and
support staff, employs disabled persons certified under special provisions of federal minimum
wage laws.”

• Independent Living or life skills are defined as “those skills or tasks that contribute to the
successful independent functioning of an individual in adulthood” (Cronin, 1996) in the
Appendix B
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following domains: leisure / recreation, maintain home and personal care, community
participation.

Examples of Measurable Postsecondary Goals

Example 1:
Education/Training:
Upon completion of high school, Jane will enroll in courses at the Pacific Community College.
Participation in postsecondary education is the focus of this goal.
Enrollment in a community college can be observed, as Jane enrolls in courses or does not.
Enrollment at a community college occurs after graduation.

Employment:
Jane will work in an on-campus part-time job while in college.
Obtaining employment is the focus of this statement.
Working part-time is an explicit outcome that can be observed.
The phrase, “while in college” indicates that the goal will occur after Jane has graduated
from high school.

Example 2:
Education/Training:
After graduation, Lisa will complete the non-degree program at Wilmer College.
Completing a postsecondary education program is the focus of this goal.
The goal is stated as occurring after Lisa is no longer receiving services in high school.
The education goal is consistent with Lisa’s postsecondary goals (PSG) of employment and
independent living.

Employment:
After graduation, and through the assistance of VR and the staff of the non-degree program, Lisa
will obtain part-time employment on the campus of Wilmer College.
Obtaining part-time employment is observable.
This employment goal is consistent with Lisa’s PSGs of education and independent living.

Independent Living:
Upon completion of high school, Lisa will learn to utilize the public bus system.
Participation in independent living skill development, specifically community participation,
is the focus of this goal.
Use of the bus can be measured, as in Lisa performs the necessary activities or does not
perform the activities.

*The above examples are adapted from the National Secondary Transition Technical Assistance
Center document: Examples & Nonexamples for Web-Based Indicator 13

Appendix B
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It is not necessary to specify a student’s major for a goal to be measurable. However, increased
specificity in postsecondary goal statements (when the student articulates this information) can
improve the relevance of services provided during high school. Students may be uncertain of
their vocational future at the time transition planning is initiated. It is therefore important to
begin early the dialogue regarding opportunities and early planning.
Age appropriate transition assessments and other opportunities for career awareness and
exploration, will assist the student in gaining a better sense of his/her strengths, preferences, and
interests, as the student develops postsecondary plans.

Annual revisions of the Transition IEP when the postsecondary goals of the student have not
changed from the previous annual IEP:

Scenario 1: The student identifies at the IEP meeting, that after graduation from high school,
he/she wants to pursue training in the area of welding. Throughout the next school year the
student takes coursework in welding and at the next annual IEP meeting, proclaims that he/she is
still interested in pursuing a career in welding. The team then would review the IEP plan
identifying progress and continued needs, updating the transition services and annual goals
needed for the next year to continue to assist the student in reaching his postsecondary goals.

Annual revisions of Transition IEP when the postsecondary goals of the student have
changed from the previous annual IEP:

Scenario 2: Circumstances may change to the extent that at the next annual IEP meeting, the
student reports that after taking a welding course at the high school, he/she is no longer
interested in welding as a career. The student is now interested in computers. The team would
then revise the postsecondary goals section to reflect the change. Keeping this new information
in mind, the team would continue through the Transition IEP sequence with the new
postsecondary goals as the focus throughout the revision of the annual IEP plan.

When a student is unrealistic in a vocational choice (i.e., a student identified with intellectual
disability expressing an interest in becoming a physician), the team should question the student
further to identify ‘why’ the student is interested in that particular job. It may be that the student
does not know exactly what a physician does or the training that is required for the job. It may be
that working in a hospital and wearing the uniform of hospital personnel is what interests the
student most. In that event, the team can explore a number of jobs performed in a hospital and
one that may be suitable for the student. Thus, the IEP should address appropriate planning to
include job shadowing or further career exploration.

Age Appropriate Transition Assessments

The Division on Career Development and Transition (DCTC) of the Council for Exceptional
Children defines transition assessment as an “ …ongoing process of collecting data on the
individual’s [strengths] needs, preferences, and interests as they relate to the demands of current
and future working, educational, living, and personal and social environments”. “Age
appropriate” means a student’s chronological, rather than developmental age (Wehmeyer,
2002).While the specific transition assessments used to determine appropriate measurable
Appendix B
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postsecondary goals will depend on the individual needs of the student, the broad purposes
include the following:

• To determine the skill levels the student has achieved.
• To assist the student in identifying interests, preferences, strengths, and abilities in
relation to postsecondary goals.
• To develop and write practical and achievable postsecondary goals.
• To provide information to develop annual IEP goals for the transition component of the
IEP
• To determine appropriate placements within educational, vocational, and community
settings that may facilitate the attainment of the post-secondary goals.
• To determine the accommodations, supports, and services necessary to attain and
maintain postsecondary goals.
• To determine and facilitate self-determination skills.

The results of transition assessments should be used in making recommendations for
instructional strategies, accommodations in instruction, and environments to meet the students’
strengths and needs. The results also should help students make a connection between their
individual academic program and their post-school ambitions.

Transition assessment results should become a part of the following:
• Integrated Written Assessment Report
• Present Levels of Academic Achievement & Functional Performance in the IEP

Transition assessment information should be reviewed and updated each year.

For more information on transition assessments and examples of types of formal and informal
transition assessments, please see the NDDPI Transition website located at:
http://www.dpi.state.nd.us

Present Levels of Academic Achievement and Functional Performance
(PLAAFP)
The Present Levels of Academic Achievement and Functional Performance must address the
academic and functional skills the student possesses and the skills the student must acquire to
achieve his/her postsecondary goals. Student input into the IEP process is guaranteed by the
PLAAFP requirements for documentation of the student’s strengths, needs, preferences, and
interests, and identification of how this information was obtained. The PLAAFP must also
include a current summary of relevant data on the student in the following six domains:

Jobs and Job Training: the acquisition of skills for work or other meaningful adult activities,
such as work habits, career exploration, community work experience and training.

Appendix B
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Questions to ask:
• If holding a part time job, describe where s/he works, what s/he does, # hrs/week working,
any reported difficulties, does s/he like the job, personal accomplishments of job (friendships,
abilities, new tasks, money, etc)?
• Will s/he continue with job, has it led to any vocational interests, has this employment overall
enhanced student’s life?
• Does the student have any employment needs?
• If not holding a part time job, state why/why not, does s/he want to work?
• What are the parental expectations regarding employment during high school?
• Is there any related assessment information relevant to this area?
• Is there any disability related interference to employment?

Recreation and Leisure: the initiation and development of group and/or individual recreational
and social skills and activities (e.g. hobbies, socialization, etc.).

Questions to ask:
• What does s/he do? List both recreation and leisure activities, both group and individual, in
and away from school, and with whom the activities are done with (friends, family, relative,
alone, etc).
• Is s/he satisfied with these activities and his/her proficiency?
• What are some of the student’s accomplishments?
• If not involved, is it by personal choice?
• Is that ok with her/him and parents?
• Is there any activity s/he would like to do that they are not doing?
• Is there any pertinent related information relevant to her/his status (PE class, therapies)?

Home/Independent Living: the skills necessary to fully participate in life in the home, including
cooking, money management, personal grooming, etc.

Questions to ask:
• What are her/his living arrangements, role and responsibilities in that environment?
• Strengths or weaknesses?
• Is s/he satisfied with current status?
• Parental expectations?
• Is there any impact as a result of the disability?
• Is there any relevant coursework available (Family and consumer science classes, etc.) or of
interest?
• Are there things s/he should be doing (age/peer appropriate) that s/he is not doing in the
current living situation?

Community Participation: the skills needed to access community resources including people,
public places and activities such as transportation and government agencies, activities or
organizations the student may want to incorporate into his or her adult life.

Appendix B
Page 7 of 19

Questions to ask:
• What type of activities does s/he do to access community (i.e., banking, errands, mall,
entertainment, church…)?
• What activities outside of school is s/he involved in – what does s/he contribute to the
community (church, volunteer activities, etc)?
• To what extent is s/he independent in local community?
• What method of transportation does s/he use?
• Does s/he want to do more?

Postsecondary Training & Learning Opportunities: education and/or training that occurs over
a lifetime (e.g., preparation for and application to technical institutes, community colleges,
universities, adult and community education).

Questions to ask:
• Address if her/his current post secondary goals include additional training – what work has
been done to prepare or investigate that need?
• Parental goal for planning or outcome?
• What has or what will be done to provide her/him with career planning and exploration tools
if this is a possible area of need in this year?
• Will s/he need any post-secondary education or is employment possible without at this time?
• Has s/he prepared for ACT/SAT?
• Visited any college?
• Talked with any other students?
• Visited with Guidance counselor?
• Is there any assessment information?
• Does an assessment need to be completed?

Related Services: transportation and such developmental, corrective and other supportive
services as are required to assist a student with a disability to benefit from special education.

Questions to ask:
• Are there developmental, corrective, and other supportive services that are required to
assist the student with a disability to benefit from special education and to fully
participate in the regular curriculum?
o Include transportation, speech/language, audiology, interpreting, psychological,
physical and occupational therapy, recreational therapy, social work, counseling,
health services, orientation and mobility, etc.

Definition of related services –
300.34(a) … transportation and such developmental, corrective, and other supportive services as are
required to assist a child with a disability to benefit from special education and includes speech-
language pathology and audiology services, interpreting services services, psychological services,
physical and occupational therapy, recreation, including therapeutic recreation, counseling…..
Related services also include school health services and school nurse services, social work services in
schools, and parent counseling and training.

Appendix B
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Keeping in mind the desired postsecondary outcomes, the team should discuss and summarize
the student’s present levels of academic achievement and functional performance in each of the
areas previously described. Additionally, the team should consider also the relationship between
the six transition domains and the student’s skills and abilities in the eight areas described below.

Communication: What communication skills does the student have that would allow him/her to
interact in various settings, such as a recreational or job training site?

Emotional: What are the emotional issues that might affect this student in personal or public
interactions?

Academics: How does the student presently use math, reading or other academic skills in each
of the domains?

Technology: What is the student’s past and present use of, or need for, assistive technology as it
applies to the domains?

Transportation: What does the student presently use or know how to use, and/or need to use, in
the future?

Interpersonal/Social: How does the student use these skills? What needs exist to develop these
skills?

Medical/Physical: Are there medical or physical concerns that impact the level of performance?

Advocacy/Legal: What are the student’s abilities to know and exercise his or her rights in each
of the transition domains?

If the IEP team determines no needs within any of the transition areas, a statement describing
the current level of functioning and the basis upon which that decision was made (including
measurements) must be included in the IEP as illustrated in the following example. The term
“NA” is not an appropriate response nor is it appropriate to leave this section of the IEP form
blank. In this way, the team assures that the planning process addressed all areas that are critical
to successful post-school outcomes for an individual student and does not make false
assumptions based on disability.

Example:
The team, including Josh and his parents, agree that specific skill training in the areas of
JOB/JOB TRAINING is not needed. Josh works independently part time after school and on
Saturdays at a local garden shop/nursery, receives positive evaluations from his employer,
completes job related paperwork (time sheets, order forms, etc.), demonstrates appropriate
social skills with co-workers and customers, and arranges his own transportation to/from work.
Prior to this, Josh was involved in two summer jobs through JTPA and has had four community
job shadow experiences. His postsecondary goal is to work in the field of horticulture. He plans
to continue his present work on a part time basis while attending college next year. This was
determined by employer/work evaluations and student report.
Appendix B
Page 9 of 19

Section 300.320(b)
…beginning not later than the first IEP to be in effect when the child turns 16, or younger if
deemed appropriate by the IEP Team, and updated annually, thereafter, the IEP must include –
the transition services (including courses of study) needed to assist the child in reaching those
postsecondary goals.

Transition Services
The definition of transition services in the IDEA 2004 explains how improving a student’s
academic and functional achievement will improve the transition from school to adult living.

300.43 Transition services means a coordinated set of activities for a child with a disability
that--
(1) 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, including postsecondary education, vocational
education, integrated employment (including supported employment), continuing and adult
education, adult services, independent living, or community participation;

Course of Study

Once the postsecondary goals have been developed and the present levels of academic
achievement and functional performance discussed, the team should have an understanding of
the student’s vision for the future. The purpose of this requirement (Course of Study) is to
identify courses and educational experiences that will lead to graduation and student desired
post- school outcomes.

All anticipated coursework for the remaining high school years is to be identified as thoroughly
as possible. That is, the IEP team will enter its best estimate of anticipated coursework for grades
9-12 for a ninth grade student. For a junior, the team will enter anticipated coursework for both
11th and 12th grades, and so on. It is recommended, but not necessary, to identify coursework
taken during previous years, if that coursework had not previously been recorded. However, an
up-to-date accounting of the number of credits the student has earned at the time of the IEP
meeting is essential.

This information is reviewed and updated each year, as changes are made and the postsecondary
plans of the student become more refined. The documentation of credits earned by the student
should equal or exceed the number of credits required for graduation.

Many schools currently utilize a course plan or program of study for all students to identify
which classes must be taken to complete high school. It is appropriate to use this as an
attachment to the IEP rather than duplicating the information in this section, as long as the
information identifies the school year, grade level, courses, and credits.

Appendix B
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Before the IEP team identifies classes for any student, the team should discuss:
• What knowledge, skills, and behaviors do we want the student to obtain?
• What instructional strategies will the teacher use to make sure the student acquires the
knowledge, skills, and behaviors?
• After the class, how will the student demonstrate the acquired knowledge, skill, and
behavior?

The IEP team should see a correlation between the postsecondary goals and the Course of Study.
For example, if a student expresses interest in employment and a post-secondary program that
will require a liberal arts focus, the curriculum for high school should identify those classes
required to enter a liberal arts program (i.e., two years of language, four credits of math, science,
etc.).

When the regular curriculum offerings are inappropriate for a student, individualized
programming may be designed through an individual education planning process. Specific
course offerings should address the unique learning needs of each individual student. Under
such circumstances, The Functional and Community-Based Curriculum may be appropriate.
This curriculum designed particularly, for students who participate in the North Dakota Alternate
Assessment, is most appropriate for those students with intellectual disability, significant learning
or emotional disabilities. In some individual student situations, the courses may also be
appropriate for students with autism, hearing impairments or deafness (HI), or visual
impairments (VI). The intent of the Functional and Community-Based Curriculum is twofold:
1) provide standard credit and instruction for completion of applicable functional course work
using the foundation of the local school community partnership; and 2) promote collaboration of
general and special educators working together to meet the individual needs of the students.
More information about the Functional and Community-Based Curriculum and a list of course
topics may be found at http://www.dpi.state.nd.us/transitn/FCB.pdf

Focusing on the course of study as described above promotes the concept that the high school
program focuses on post-school results. Consequently, the courses taken by the student may be
more meaningful to the student and at the same time, may motivate the student to complete
his/her education.

Documentation of Graduation requirements:
The right to a free appropriate public education (FAPE) applies until a student successfully
completes a secondary education program and graduates with a signed standard high school
diploma, or when a student exceeds the age of eligibility at 21. The right to FAPE continues to
apply to students with disabilities who have been awarded a certificate of completion or
attendance or a General Educational Development (G.E.D.) credential instead of a standard high
school diploma unless they have exceeded the age of eligibility.

The IEP needs to address the following questions about the student’s ability to meet graduation
requirements.

1. What is the total number of credits required by the district for graduation? What is the
student’s anticipated month and year of graduation?
Appendix B
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Identification of this information allows the team to plan accordingly for graduation within an
identified timeframe while accommodating the student’s educational needs. Addressing these
questions leaves no doubt about if and when a student will be graduating with his/her class.

2. Will the student exit high school with fewer credits than required by the district for a high
school diploma?

3. If yes, identify the alternate document approved by the district the IEP team anticipates
the student will receive.

If the student will not be receiving a regular high school diploma, the IEP team must identify any
alternate document approved by the district that the student will earn.

For some students earning course credits through either the regular curriculum course offerings
and/or the Functional and Community-Based Curriculum may not be appropriate. The IEP team
must discuss the programming and services best suited to the student’s needs based on the
student’s postsecondary goals.

Transfer of Rights

In North Dakota, state law considers a person to be an adult on the 18th birthday; that is, the
person is of “legal age” and assumes the role of an adult. This means the student is no longer
under the natural guardianship, or custody and supervision, of parents. It also means that a
person who is 18 years old is responsible for making his or her own decisions, including those
about school.

The guaranteed rights previously afforded to parents to make decisions, review records, and
attend meetings, become the responsibility of the student at age 18 unless parents or other adults
become guardians. The exception to this occurs if parents petition the state district court for legal
guardianship. Parents often seek the assistance of an attorney to accomplish this. If guardianship
is awarded, the parents continue to make decisions regarding their child.

The IDEA states that no later than one year before the age of majority the IEP must include a
statement that the student has been informed of the rights that will transfer to the student upon
reaching the age of majority. Having this information at age 17 allows the team, especially the
student and parents, to discuss the implications of educational guardianship and initiate the
process in a timely manner. Court schedules and associated costs to the family are important
issues that may need to be considered over a period of time.

At the age of 18, the school must notify the parent and student of the transfer of rights. This
notification may occur on the Parent Prior Written Notice Form. Upon meeting with the student
and assuring that the student understands his/her rights, the student shall be asked to sign the
Student Transfer of Rights form.

Appendix B
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Section 300.320(c)….Beginning not later than one year before the child reaches the age of
majority under state law, the IEP must include a statement that the child has been informed of the
child’s rights, under part B of the Act, if any, that will transfer to the child on reaching the age
of majority under section 300.520.

Coordinated set of Strategies & Activities Needed to assist the Student in
Reaching the Postsecondary Goals
This section of the IEP is formatted to serve as a worksheet for addressing student needs in the
areas of instruction, employment, community experiences, independent living, related services,
and if necessary, daily living and functional vocational assessment.
The team will identify at least one strategy or activity for each postsecondary goal of the student.
For each strategy or activity needed the team will also identify the agency responsible, the
agency’s responsibility and the timeline for these responsibilities.

*Definitions:

Instruction: The use of formal techniques and qualified instructors to impart knowledge;
typically what is provided in the classroom or other sites to relay instruction or the application of
instructional materials. The strategies and activities can include, but are not limited to, such
things as: a) Broad curricular areas of needed coursework, educational experiences, and skill
training; b) Activities and strategies that are necessary to prepare for and take part in college,
continuing education, adult living, etc.

Examples: Learn about time management, enroll in parenting classes in __ grade, visit
college campuses and meet with student support services, enroll in Self-Advocacy/Self
Awareness classes.

Community Experience: Activities provided outside the school building in natural community
settings that prepare the student for participation in community life. These experiences should
encourage the student to participate in the community, including social, recreational,
government, transportation, shopping, or other opportunities.

Examples: Obtain a driver’s license, explore volunteer experiences, register with
selective service, learn to use public transportation, shopping or apartment living
experiences, banking, use of public services.

Employment: Instructional objectives, activities, techniques and services that lead to a job or
career; can be provided by school or other entities to include student interest, relevancy of
disability and nature of job interests, supports, necessary skills and abilities to succeed, emerging
or missing skills, employee behaviors, academic, social and vocational needs, and
accommodations.

Appendix B
Page 13 of 19

Examples: career awareness program, take the ASVAB, JTPA, co-op program, work-
study, apprenticeship, Job Corp, participate in job shadowing, explore supported
employment options.

Related Services: Developmental, corrective and other supportive services that may be required
for the upcoming school year are addressed in another section of the IEP. Related services in
this section has to do with determining if the related service needs will continue beyond school,
identifying any agency that might provide those services, identifying how the student and parent
can access those services, and connecting the student and parent to whomever will provide those
services before the student leaves the school system.

Examples: learn about postschool providers for speech therapy, complete an assistive
technology evaluation, apply for a mentor through a local, non-profit agency for
counseling of substance abuse and delinquency.

Adult Living & Post School: Activities and strategies that focus on important adult
responsibilities such as voting, paying taxes, renting a home, accessing medical services, raising
children, etc. which prepare students to live as independently as possible.

Examples: Self advocate at work, maintain checking/savings account, select community
club, pass drivers test, communicate appropriately in social and/or work settings,
complete forms. Post-secondary educational activities could include learning effective
study habits, job shadowing, ACT/SAT accommodations, college applications, etc.

Daily Living: Activities adults do every day to have access to society, provided by schools or
other entities.

Examples: Utilize community resources, medical/medication management, meal
preparation, housekeeping, use of personal care attendant, use/maintenance of adaptive
technology, developing personal relationships.

Functional Vocational Assessment: Assessment process that provides information about job or
career interests, aptitudes and skills. This can include observations, formal or informal measures
and should be practical. Information gathered through a functional vocational assessment can be
used to refine educational experiences, courses of study, and employment strategies.

Examples: Contact agencies that provide functional vocational assessments in the
community, conduct formal aptitude tests such as VALPAR and WRIOT

*Source: O’Leary and Collision, February 2002. Transition Services: Helping Educators,
Parents and Others Understand Post School Outcomes, Course of Study and Coordinated Set of
Activities.

Student needs, interests, and preferences are the basis for developing this coordinated set of
strategies and activities as a long-range multi-year plan that identifies and specifies what must be
done to prepare the student for adult life. Using this section as a worksheet, the team

Appendix B
Page 14 of 19

“brainstorms” and categorizes all identified needs from the PLAAFP (into the appropriate
category in the column titled “Needs & Activities”. The identification of who is fiscally
responsible creates clear planning opportunities. Education alone can not provide everything
needed to prepare each student for adult life, but a coordinated and collaborative effort with all
necessary partners may be successful. The IEP team will identify the strategy or service needed,
make decisions about agency responsibility (provider/payer) and document accountability
including timelines. Priority is given to the most critical needs, but planning for future years is
also included.

If the team concurs that no needs exist in any one of the required areas, the team must document
the rationale. For example, if the team concludes employment services are not necessary because
the student has successfully maintained part time employment with no impact as a result of the
disability, and no future needs are identified, the team should make a statement to that effect.

When this section is completed, the team should be able to identify the school’s responsibilities,
including those specific to special education, that are then prioritized as the IEP goals. It should
be kept in mind, however, that not every need that is the responsibility of the school
automatically becomes an annual goal on the IEP. The team must make a decision about whether
a particular activity constitutes a need for special education services or supports which would
then become an annual goal.
This section should be a comprehensive “snapshot” of what is required for the duration of a
student’s education to assist the student in reaching his or her postsecondary goals.

Although the evaluation of daily living skills and functional vocational assessments are to be
considered only as appropriate, information from the evaluation process becomes critical for
transition age students This information enhances the development of goals and objectives for
the student’s IEP.

Section 300.43(a)(2)
Is based on the individuals child’s needs, taking into account the child’s strengths, preferences,
and interests; and includes— instruction, related services, community experiences, the
development of employment and other post-school adult living objectives, and if appropriate;
acquisition of daily living skills and provisions of a functional vocational evaluation.

Agency Collaboration & Responsibilities

The student’s IEP should contain a statement of interagency responsibilities or any linkages
required to ensure that the student has the transition services needed from outside agencies and
that representatives from those agencies are invited to attend the IEP meeting. The IDEA 2004
requires the school to ensure designated agency participation at the IEP meeting. Written
parental consent is also now required, before the school invites representatives from other
participating agencies to attend an IEP Team meeting.

Appendix B
Page 15 of 19

Documentation of other agency responsibilities and timelines should be documented in the
transition services section, “Coordinated Set of Strategies & Activities Needed to Assist the
Student in Reaching Postsecondary Goals. If an agency identified by the IEP team fails to
provide the services designated in the IEP, the IEP team must reconvene as soon as possible to
identify alternate strategies and amend the IEP as necessary. The school must document the dates
of reconvened IEP meetings and results.

Section 300.321(b)(3) To the extent appropriate, with the consent of the parents or the child who
has reached the age of majority, the public agency must invite a representative of any
participating agency that is likely to be responsible for providing or paying for transition
services.

Section 300.324(c)
If a participating agency, other than the public agency fails to provide the transition services
described in the IEP, the public agency must reconvene the IEP Team to identify alternative
strategies to meet transition objectives for the child set out in the IEP.

Annual Goals
Annual Goals are “statements that describe what a student with a disability can reasonably be
expected to accomplish (e.g., master some skill or knowledge [not an activity]) within a twelve
month period in the student’s education program.

For each postsecondary goal in the students IEP, there must be at least one annual goal included
that will help the student make progress towards the stated postsecondary goal.
One annual goal may link to more than one measurable postsecondary goal.

Annual Goal examples that directly relate to the Postsecondary goal examples on page 4 of this
appendix:

Example 1A: Given the Pacific Community College information, Jane will demonstrate
knowledge of the college’s admission requirements by verbally describing those requirements
and identifying admission deadlines with 90% accuracy by November, 2010.

Example 2A: Given a bus schedule adapted with pictures, Lisa will select the correct start time
and stop time for five scenarios of activities presented to her with 80% accuracy.

• Study skill goals may logically lead to education/training, employment, and
independent living goals.
• Behavioral skills goals may logically lead to education/training, employment and
• Academic skills goals may logically lead to education/training, employment and

Appendix B
Page 16 of 19

When the Transition IEP is completed in the above suggested sequence it becomes reflective of
both the annual and the long-term educational needs, which forms a plan for seamless services
after high school. The suggested Transition IEP form and instructions for completing the form
are included on this website.

Summary of Performance

An additional new requirement of the IDEA 2004 for providing transition services to students
with disabilities is the “Summary of Performance” (SOP). When a student exits special
education services due to graduation with a regular diploma or due to exceeding the age of
eligibility, a comprehensive evaluation is no longer required. The local education agency must
now give the student a summary of his/her academic achievement and functional performance
as it relates to the student’s measurable postsecondary goals. The SOP is not a new set of
evaluation and the student’s assessment data. It is, as it’s name implies, a summary of existing
data and of performance in the academic and functional areas. These are two critical areas of
student performance. As the team addresses each area it is vital to include the specially designed
instruction, accommodations, modifications, and assistive technology that were utilized in high
school to assist the student in making progress. This information can be invaluable to enhance a
student’s self-knowledge and self advocacy as he/she transitions into new environments with
new requirements and demands.

The SOP must also include recommendations on how to assist the student in achieving the
student’s measurable postsecondary goals. These recommendations should answer the
following questions, “what do I do next?’ and “whom should I call?” after the student leaves the
school setting. When the team is completing the Recommendations section, the following
should be considered:
• The supports and accommodations the student has benefited from in school and in the
community.
• The supports and accommodations that are recommended in post-school life to assist the
student in achieving his/her postsecondary goals.
• The specific skills/abilities necessary for the student to achieve the intended goal(s) (e.g.,
level of support and/or academic adjustments for reading required for college coursework
versus those required for employment).
• The intended goal and the students needs/functional limitations(e.g., plans to go to
college but needs to continue developing self-advocacy skills needed to obtain supports
and services).
• The adult agencies and individuals supportive of the student that may have a role in
supporting student achievement of post school goals (e.g., College Disability Support
Services). Provide specific contact information for individuals and agencies if available.

Section 300.305(e)(3) For a child whose eligibility terminates under circumstances described in
paragraph (e)(2) of this section, a public agency must provide the child with a summary of
performance of the child’s academic achievement and functional performance, which shall
include recommendations on how to assist the child in meeting the child’s postsecondary goals

Appendix B
Page 17 of 19

Student Input in the SOP: The student should actively participate in developing the SOP in
collaboration with school professionals. Asking the student what supports and services have
helped him/her to be successful in high school and about what services or supports will be
needed in the future, can help promote self advocacy. In addition, involving the student in the
development of the SOP may enable the student to gain a clearer understanding of his/her
disability and how it will impact postsecondary activities. The information gained from the
student may be included as an optional section on the SOP form.

The Summary of Performance must be completed during the last year of high school. The
specific timing during that last year is based on the individual needs of the student as specified in
the transition plan. This will vary depending on the student’s postsecondary goals.

Does the student need the information in the SOP to apply for college?
Then the SOP may be done in the fall.
Will the information be needed to provide the employer with the most current information?
Then the SOP may be done in the spring.

Appendix B
Page 18 of 19

Secondary Transition and the North Dakota State Performance Plan:
The IDEA 2004 places greater emphasis on accountability of the state and local education
agencies for improving the educational and functional outcomes for youth with disabilities. All
states are now required to develop a six year special education State Performance Plan (SPP).
The purpose of the SPP is to plan for the improvement of outcomes for youth with disabilities.
Each year the state must also submit an Annual Performance Report (APR) to show how a state
is progressing toward the targets established in the SPP. Appendix A of the Guidelines:
Individualized Education Program Planning Process for Special education in North Dakota
summarizes the three monitoring priorities of the SPP and the twenty indicators for which states
must provide baseline data, projected targets, and activities to achieve those targets.

Although all twenty indicators impact the outcomes for youth with disabilities, Indicators 1, 2,
13, and 14 directly measure outcomes or services that influence results for high school aged
youth.

Indicator 1: Percent of youth with IEPs graduating from high school with a regular diploma
compared to percent of all youth in the State graduating with a regular diploma.

Indicator 2: Percent of youth with IEPs dropping out of high school compared to the percent of
all youth in the State dropping out of high school.

Indicator 13: Percent of youth aged 16 and above with an IEP that includes appropriate
measurable postsecondary goals that are annually updated and based upon age appropriate
transition assessment, transition services, including courses of study, that will reasonably enable
the student to meet the post-secondary goals, and annual IEP goals realted to the student’s
transition services needs. There must also be evidence that the student was invited to the IEP
meeting where transition services are to be discussed and evidence that, if appropriate, a
representative of any participating agency was invited to the IEP Team meeting with the prior
consent of the parent or student who has reached the age of majority

Indicator 14: Percent of youth who are no longer in secondary school, had IEPs in effect at the
time they left school, and were:
A. Enrolled in higher educationwithin one year of leaving high school.
B. Enrolled in higher education or competitively employed within one year of leaving high
school.
C. Enrolled in higher education or in some other postsecondary education or training; or
competitively employed or in some other employment within one year of leaving high
school.

Each year school districts will be asked to submit data regarding each of these four indicators.
For indicators 1 and 2, this will be the number of youth that graduated with regular high school
diploma and the number of youth that dropped out of high school from each district in the state.
For Indicator 13, district internal monitoring teams will review the IEP files of youth 16 -21
using the North Dakota Internal Monitoring Transition Requirement Checklist.

Appendix B
Page 19 of 20

Indicator 14 data will be obtained though the North Dakota Follow-Up Study Interview Process.
Because Indicator 14 requires states to follow up with all students who had IEPs while in
secondary school, up-to-date contact information for the student will be vital. The State
Education agency will need to rely on this up-to-date contact information students provide to the
school district at the time of exit. This contact information will be accessed through TIENET.

Appendix B
Page 20 of 20

Appendix C

Consideration of Specific Student Needs

Consideration of Specific Student Needs
The purpose of the IEP is to tailor the education to the needs of the student. The student's
abilities and needs determine the program modifications and supports that are provided. A
number of considerations are essential to the process of creating a student's IEP. In developing
each student's IEP, the team must consider:

• the strengths of the child and the concerns of the parents for enhancing the education of their
child; and
• the results of the initial evaluation or most recent reevaluation of the student.

The IEP team must consider how the student's needs affect his/her involvement and progress in
the general curriculum as well as in extracurricular and nonacademic activities. The following
information is provided to guide the team in determining the unique needs of a student, when
appropriate:

Students who are blind or visually impaired

When a student is blind or visually impaired, the team must provide instruction in Braille and the
use of Braille unless the team determines, after an evaluation of the student's reading and writing
skills, needs, and appropriate reading and writing media, that instruction in Braille or the use of
Braille is not appropriate for this student. The student's future needs for instruction in Braille or
the use of Braille must also be considered.

The IEP team should consider the following questions:

1. Does the student have a disability in addition to blindness that would make it difficult for
him/her to use his or her hands?
2. Does the student have residual vision?
3. Does the student use or need to learn to use assistive technology for reading and writing?
4. Is the student's academic progress impeded by the current method of reading?
5. Does the student use Braille, large print or regular print?
6. Will the student need to use Braille in the future?
7. Have provisions been made to obtain in Braille the printed materials used by sighted
students?
8. Does the student need instruction in orientation and mobility?
9. Does the student have appropriate listening skills?
10. Does the student have age-appropriate social skills?
11. What skills does the student need to enable him or her to learn effectively?
12. What accommodations are necessary for instruction and testing?

Students who are deaf or hearing impaired

For students who are deaf or hard of hearing, the team must consider the communication and
language needs of the student and the student's opportunities for direct communication with
peers and professional personnel in the student's own language and communication mode. The

Appendix C
Page 1 of 5

IEP team must also consider the student’s academic level and full range of needs including
opportunities for direct instruction in the student’s own language and communication mode.

1. Does the student use American Sign Language?
2. What mode of communication does the student use?
3. What mode of communication does the family prefer?
4. Is an interpreter or translator needed for the student to participate in and benefit from
classroom instruction and/or interaction with peers and educational personnel?
5. Does the student require assistive devices to facilitate the development and use of
meaningful language and/or a mode of communication?
6. Are there opportunities for the student to participate in direct communication with peers
and educational personnel?
7. What opportunities exist for direct instruction (without an interpreter) in the student's
language and/or mode of communication?
8. Does the student use or need to learn to use assistive technology to help him or her in
developing social skills?

Students with Communication Needs

For students (other than those who are deaf or hard of hearing) whose communication needs
hinder learning, the team must consider the student’s needs related to the IEP.

1. Does the student have communication needs that hinder learning?
2. Does the student need to learn or use special language or communication skills and
strategies?
3. If special education services are needed to address the student’s communication needs, are
the needs addressed in the IEP (e.g. in PLAAFP, goals and services as appropriate).

Students with limited English proficiency

Limited English Proficiency (LEP) determination for students 6 and older are determined by the
school district and reported in STARS. The LEP status from STARS, when available, populates
the first question in section E, “Consideration of Special Factors” of the student’s IEP. When the
LEP status is “yes” the IEP team must consider the language needs of the child as those needs
related to the child’s IEP. When yes, the IEP team should include or consult with an educator
who has extensive experience with ELs or holds an ELL Endorsement on their ND teaching
license to assist in responding to the child’s curricular needs.

In North Dakota, it is up to the IEP team to determine whether or not a student, ages 3 through 5,
is LEP according to the federal definition (see below). The IEP team should include or consult
with an educator who has extensive experience with ELs or holds an ELL Endorsement on their
ND teaching license to determine if a student fits the LEP definition.

Appendix C
Page 2 of 5

Limited English Proficient Student:
Students must meet a part of the criteria in each of the sections (A-D)

The term “limited English proficient”, which is defined in section 9101 of Title IX when used with respect to an individual,
means an individual:
(A) who is aged 3 through 21;
(B) who is enrolled or preparing to enroll in an elementary school or secondary school;
(C) (i) who was not born in the United States or whose native language is a
language other than English;
(ii) (I) who is a Native American or Alaska Native, or a native resident of the
outlying areas; and If part (ii) then must meet
(II) who comes from an environment where a language other than English both pieces I and II
Must meet either part i, ii or has had a significant impact on the individual’s level of English language
iii proficiency; or
(iii) who is migratory, whose native language is a language other than English,
and who comes from an environment where a language other than English is dominant; and
(D) whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to
deny the individual -
(i) the ability to meet the State’s proficient level of achievement on State assessments described in section
1111(b)(3);
Must meet either part i, ii or (ii) the ability to successfully achieve in classrooms where the language of instruction is English: or
iii (iii) the opportunity to participate fully in society.

For all students with limited English proficiency, the team must consider how the student's language needs relate to the IEP.


1. Has the student been assessed in his/her native language?
2. Is the disability present when the student is assessed in his/her native language?
3. Does the disability impact on the student's involvement and progress in the bilingual education or English Language Learner (ELL)
program of the general curriculum?
4. What language will be used for this student's instruction?
5. What language or mode of communication will be used to address parents or family members of the student?
Appendix C
Page 3 of 5

Students who demonstrate behaviors which impede learning

When a student's behavior impedes learning, the IEP team must consider strategies, including
positive behavioral interventions, strategies and supports, to address those behaviors.


1. What behaviors does the student exhibit that are different from those of same-age peers?
2. When is the student most likely to engage in the problem or inappropriate behavior?
3. What specific events appear to be contributing to the student's problem behavior?
4. What function(s) does the problem behavior serve for the student?
5. What might the student be communicating through problem behavior?
6. When is the student less likely to engage in the problem behavior?
7. Does the student's behavior problem persist despite consistently implemented behavioral
management strategies?
8. Does the student's behavior place him/her or others at risk of harm or injury?
9. Have the student's cultural norms been considered relative to the behavior(s) in question?
10. Do medication or other interventions affect the behavior?
11. Does the student's disability affect his/her ability to control the behavior?
12. Does the student's disability affect his/her understanding of the consequences of the
behavior?

A functional behavioral assessment should be conducted for all students with behaviors that may
impede learning. Functional behavioral assessments provide information on why a student
engages in a behavior, when the student is most likely to demonstrate the behavior and situations
in which the behavior is least likely to occur. Behavioral needs should be integrated throughout
the IEP as an integral part of planning for the student.

Students who may need assistive technology

Some students may require assistive technology devices and services to benefit from a free and
appropriate public education.


1. What can the student do now with and without assistive technology devices and services?
2. What does the student need to be able to do?
3. Can assistive technology devices and services facilitate student success in a less
restrictive environment?
4. Does the student need assistive technology devices and services to access the general
curriculum or to participate in nonacademic and extracurricular activities?
5. What assistive technology services would help the student access the general curriculum
or classes?
6. Does the student need assistive technology devices and services to benefit from
educational/printed materials?
Appendix C
Page 4 of 5

7. Does the student need assistive technology devices and services to access auditory
information?
8. Does the student need assistive technology devices and services for written
communication/computer access?
9. Does the student need assistive technology devices and services for augmentative
communication technology?
10. Does the student need assistive technology devices to participate in State and districtwide
testing?
11. Will the student and/or staff need training to facilitate the student's use of the assistive
technology devices?
12. How can assistive technology devices and services be integrated into the student's
program across settings such as work placements and for homework?

Further information regarding Assistive Technology can be found in North Dakota Guidelines:
Assistive Technology for Students with Disabilities.

(Adapted from New York, Office of Vocational and Educational Services for Individuals with
Disabilities.)

Students Ages 18 – 21

Some students who remain in school beyond age 18 generally require community-based
instruction and support within a functional environment.


1. What type of setting is necessary to enable the student to acquire the skills needed to
achieve his/her postsecondary goals?
2. What are the preferences and interests of the student?
3. Has the team considered age appropriate settings within the community?
4. What supports will the student require in the community?
5. Are those supports readily available?
6. Does a community placement apply academic concepts in a functional setting that is most
appropriate for the student?
7. Will transportation be an issue?

Appendix C
Page 5 of 5

WATI Assessment Forms

WATI Assistive Technology Consideration Guide
Student’s Name School

1. What task is it that we want this student to do, that s/he is unable to do at a level that reflects his/her skills/abilities (writing, reading,
communicating, seeing, hearing)? Document by checking each relevant task below. Please leave blank any tasks that are not relevant to the
student’s IEP.
2. Is the student currently able to complete tasks with special strategies or accommodations? If yes, describe in Column A for each checked task.
3. Is there available assistive technology (either devices, tools, hardware, of software) that could be used to address this task? (If none are known,
review WATI’s AT Checklist.) If any assistive technology tools are currently being used (or were tried in the past), describe in Column B.
4. Would the use of assistive technology help the student perform this skill more easily or efficiently, in the least restrictive environment, or
perform successfully with less personal assistance? If yes, complete Column C.
Task A. If currently completes task with B. If currently completes task with C. Describe new or additional
special strategies / assistive technology tools, describe. assistive technology to be tried.
accommodations, describe.
Motor
Aspects
of Writing
Computer
Access
Composing
Written
Material

Communication

Reading

Learning/
Studying

WATI Assessment Forms Copyright (2004) Wisconsin Assistive Technology Initiative 1

WATI Assessment Forms

Task A. If currently completes task with B. If currently completes task with C. Describe new or additional
special strategies / assistive technology tools, describe. assistive technology to be tried.
accommodations, describe.
Math

Recreation
and Leisure

Activities of
Daily Living
ADLs)
Mobility

Environmental
Control
Positioning
and Seating

Vision

Hearing

5. Are there assistive technology services (more specific evaluation of need for assistive technology, adapting or modifying the assistive
technology, technical assistance on its operation or use, or training of student, staff, or family) that this student needs? If yes, describe what will be
provided, the initiation and duration.

Persons Present: Date:

WATI Assessment Forms Copyright (2004) Wisconsin Assistive Technology Initiative 2

APPENDIX D

Use of Standards in
the IEP Process

Acknowledgement:

The NDDPI Office of Special Education wishes to thank Dr. Carol Massanari, Co-
Director of the Mountain Plains Regional Resource Center, for her significant
contributions to this guidance.

A generally accepted goal of special education has been to have students with disabilities
participate in the general classroom. In reality, many students, once placed, have remained in special
education classes the remainder of the time they are in school. Goals and objectives for students have
most often been based on some standardized achievement test used in the process of evaluation (e.g., the
Woodcock Johnson) and may or may not be correlated with the content being taught in the general
education setting. The net result has been that students with disabilities often have not had opportunities
to learn the content of the general curriculum and many have left school without the necessary
knowledge and skills to move into successful employment.
Recognizing that too many students with disabilities were often excluded from statewide
accountability systems and possibly from opportunities to learn subjects that are required of other
students in the general curriculum, Congress first included language in the reauthorization of IDEA in
1997 that makes it imperative to make connections between IEP goals and objectives and the general
curriculum. The Senate and House Committee report explains the intent as follows:
The committee wishes to emphasize that, once a child has been identified as being eligible for
special education, the connection between special education and related services and the child’s
opportunity to experience and benefit from the general education curriculum should be strengthened.
The majority of children identified as eligible for special education and related services are capable
of participating in the general education curriculum to varying degrees with some adaptations and
modifications. This provision is intended to ensure that children’s special education and related
services are in addition to, and are affected by, the general education curriculum, not separate from
it. (S. Rep. No. 105-17, p. 20 (1997))
On January 2, 2002, the No Child Left Behind Act (NCLB) (Pub. L. 107-110) was enacted. In
developing the NCLB Act, Congress aligned the accountability requirements with those of IDEA. That
is, they emphasized the need to include students with disabilities in the overall accountability system and
strengthened the alignment between the expectations for what students with disabilities should know and
be able to do with the expectations for students without disabilities. Subsequent regulations for alternate
achievement standards and guidance on modified achievement standards have reinforced the idea that all
students are expected to achieve proficiency on a single set of state standards.
The intent of Congress that students with disabilities be included in statewide accountability
systems, the measure of learning for all students including those with disabilities is based on state
standards, and that students with disabilities have access to the general curriculum is further reinforced
in IDEA 2004. First, IDEA 2004 requires that students with disabilities are to be included in statewide
accountability systems in accordance with NCLB. Second, IDEA 2004 emphasizes the importance of
accessing and progressing in the general curriculum as a focus for special education. Both of these
factors lead to the need for using standards as a core piece of information for developing IEPs.

North Dakota Content and Achievement Standards

State standards generally inform state citizens about the expectations for what students should know and
be able to do at various grades within various disciplines. The ND standards are organized as follows:

Content standard. A description of what students should know and be able to do within a particular
discipline or content domain, e.g. reading, mathematics, science, etc.

Topic. A category within a content standard that associates or aids in the organization of related
benchmark expectations. Topics may carry across grade levels, but topics may be revised or added as
expectations are increased from grade to grade.

Grade-level benchmark expectation. A translation of a standard into what the students should know and
be able to do at specified grade levels. Benchmarks specify and itemize the content of a standard at a
specific grade level.
Appendix D
Page 2 of 10

Achievement standard. A description of what a student knows and can do to demonstrate a level of
achievement on a content standard. Descriptors for achievement are set at four levels of proficiency and
are defined as follows:
• Advanced proficient: Demonstrates exemplary understanding of skill and exceeds expected level
of performance.
• Proficient: Demonstrates understanding of skill and meets expected level of performance.
• Partially proficient: Demonstrates an emerging or developing level of understanding and
performance.
• Novice: Attempt made; however, lack of understanding and performance is evident.
Proficiency descriptors for each level are provided for each standard at each grade level (See NDDPI
website at www.dpi.state.nd.us/).

The Content Standards describe what all students are expected to know and be able to do. However,
IDEA and NCLB recognize that some students with significant or persistent cognitive disabilities will
require an alternative way of demonstrating their learning. Thus, ND has developed an alternate
assessment for these students. The North Dakota Alternate Assessment (NDAA) includes alternate
achievement standards that are linked to state content standards for students with significant cognitive
disabilities, and modified achievement standards that are aligned to state content standards for students
with persistent cognitive disabilities. Proficiency descriptors for each level (linked and aligned) are
written for each grade and are available on the NDDPI website at www.dpi.state.nd.us/ ). NOTE:
Beginning with the 2007 fall testing there will be two separate alternate assessments. One will address
the modified achievement standards (“Aligned” or 2%), and the other will address the alternate
achievement standards (“Linked” or 1%).

It is important to know the organizational structure of a state’s standards because terminology and
structure varies from state to state. In ND the statement that is associated with the term “content
standard” is the same for all grade levels. When using the standards in ND, it is important to consider
the content standard statement, the topic, and the grade level benchmark expectations. Therefore, in this
document the term “standards” or “grade-level standards” is intended to include the content standard
statement and the benchmarks.

Standards Related to General Curriculum

Standards are generally broad statements. Curriculum is the more specific information that is taught in
order for standards or benchmarks to be met. Local districts and schools are expected to use the
standards to develop the specific curriculum that is used in the classroom. It is important to note that
curriculum is not a set of materials or strategies. Rather it is the information that is needed in order for
students to meet the standards (i.e., content standard and grade-level benchmark expectations). Materials
and teaching strategies support the delivery of the curriculum.

The general curriculum is the curriculum taught to students without disabilities. This also is referred to
as the regular education curriculum.

Standards-based IEPs

IDEA does not talk about standards-based IEPs. However, it does set forth an expectation that special
education will support the child’s ability to function and progress in the general curriculum. Because the
general curriculum is derived from the standards and state assessments measure a child’s performance
on those standards, the State Content and Achievement Standards serve as a tool for identifying the
expectations for a given student.

Appendix D
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In writing standards-based IEPs, “all instructional activities are aimed specifically toward a student's
achievement (against those) standards. Because a standards framework tends to be broad and
comprehensive, the IEP team will need to be sensitive to not overlooking the priority needs of the
student" (Kukic and Schrag, 1998, p. 20-21). For example, the team might determine that all grade level
standards are appropriate for a student with blindness. His/her IEP would then address any
accommodations necessary for the student to achieve proficient performance on the benchmarks and
his/her need for Braille instruction so that he/she can complete assignments as independently as
possible.

It is important to note that standards-based IEPs remain individualized to the unique needs of the
student. Standards or benchmarks should not be the student’s goal. Rather they are used to set goals by
comparing what the student knows now with what they are expected to know and do according to
age/grade level followed by identifying the critical skills needed in order to get to that age/grade level
expectation.

"The IEP team begins by identifying the student's unique needs and challenges, using a variety of
information sources, and then identifies the standards to which the needs and challenges relate. Keeping
in mind that most standards frameworks are broad and comprehensive, very few needs and challenges of
students with disabilities will fail to have a reference to the standards used by a given state or school
district" (Kukic and Schrag, 1998, p. 21). For some students, (i.e., those with significant or persistent
cognitive disabilities) the specific skills or knowledge for the individual student may only link or align
to the standards. For example, a sixteen year old student with a cognitive disability might be expected to
demonstrate skills on three of six grade level benchmarks in English-Language Arts, two of the five
possible benchmarks in math and three in health. However, the Proficiency Descriptors (see NDDPI
Alternate Assessment website) for linked or aligned standards will define the way in which the student
will demonstrate the standards and benchmarks. Goals will be established using this information. Other
elements of the student's IEP would likely focus on work skills and community participation.

Specific use of standards in the IEP process

Knowing what is in the standards and understanding the expectations of the general curriculum is
critical to writing an effective and quality IEP. This is why Congress added a requirement that not less
than one regular education teacher be included in the IEP team. In addition, the representative of the
public agency (i.e., local school district) is expected to be knowledgeable about the general education
curriculum.

The IEP team first considers standards when identifying and writing a statement of the child’s present
levels of academic achievement and functional performance. This statement must include a description
of how the disability affects the student’s involvement and progress in the general education curriculum.
This implies the need to discuss grade and course standards as well as other expectations of the general
curriculum compared with the results of the student’s assessment against those standards.

This discussion should result in a description of the student's previous achievement relative to the
standards and an identification of the supports or accommodations that have helped the student achieve
success. The team should then review the standards and benchmarks for the current school year and
discuss generally which ones will require supplementary aids and services if the student with disabilities
is going to meet them. For some students for whom the current assessment levels are significantly
different from the grade level expectations, this discussion also needs to focus on identifying the most
critical skills needed to be able to close the gap between the current achievement and the desired
achievement.

Appendix D
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The discussion and development of the statement of present levels of academic achievement and
functional performance is critical to identifying the annual goals and objectives. Additionally, it is used
to identify the expected performance or achievement standard for the student. Also from this discussion
an identification of needed accommodations should emerge.

Using standards to write goals and objectives

In considering goals and objectives, it is important to recognize that IDEA 2004 requires IEP teams to
write objectives only in cases where students will be participating in the Alternate Assessment based on
alternate achievement standards. For all other students, including those who would participate in the
Alternate Assessment based on modified achievement standards, only an annual measurable goal is
required. However, it is important to note that IEP teams will make decisions on which state assessment
(including the Alternate Assessment) the student will participate in on an annual basis. It is also
important to note that a student may participate in a different option from one year to the next. Because
of this, it is recommended that both goals and objectives be written, based on state standards for all
students who are likely to participate in the Alternate Assessment in any content area. From a practice
stand point, objectives can be useful for communicating with parents about what to expect throughout a
given year and for meeting the progress reporting requirements specified in IDEA.

In using standards as the basis of IEP decision making, teams target their efforts to providing the needed
instruction and supports so that the student with a disability is able to achieve the same expectations that
schools hold for all students. The grade or course standards and benchmarks, along with a district or
schools general curriculum expectations, serve as a guiding framework for constructing goals in the IEP.
The IEP objectives then become the steps needed to assure that the student with a disability is able to
achieve the performance set out in the standards and benchmarks.

The IEP team will need to first decide if use of the student’s current grade/course standards and
benchmarks is appropriate for the student. In making this determination, it may be helpful to consider
the following question:
• Can the performance specified in the standards and benchmarks be achieved without
accommodations?

If the question is answered "no", the discussion then shifts to consideration of supports the student with
disabilities will need to succeed:
• If the specified performance cannot be met without supports, what accommodations or
supplementary aids and services are necessary for the student to achieve the performance level
specified in the standards and benchmarks?

If the student’s current achievement is significantly different from the expectations of the current
grade/course, the discussion will need to identify the most critical skills that are essential if the gap
between current achievement and expected achievement is to be closed. In some instances it may be
critical to revise the performance level expected in the standards and benchmarks or revise the number
of key concepts. In other cases it may be necessary to re-define the core content that the student must
learn in order to reach the expected level of achievement. For example, a seventh grade student whose
reading ability and skills are aligned with the reading expectations of the third grade may need to receive
an intensive targeted course to teach the fundamentals of reading while maintaining performance in
other content areas through the use of accommodations or instructional supports.

In other cases, the expected performance on a standard or benchmark may vary markedly from that
expected of the child's peers. In these instances, the student’s expected achievement will be aligned to
the content standards that will be taught using a different classroom curriculum.
Appendix D
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For example, a student with significant disabilities might be expected to read picture symbols rather than
words in demonstrating performance on a reading standard. In a small number of cases, it may be
necessary to develop goals and objectives that address essential underlying skills that are necessary
before the student is able to perform the contents of the standards or benchmarks. These essential
underlying skills are in essence linked prerequisites for the performance expected in the benchmarks.
For example, a student with significant disabilities might be working on attending skills and eye gaze,
both essential prerequisite skills that are linked to work on speaking and listening skills. One question
that can be used to guide this discussion is:
• Can the performance specified in the standards and benchmarks be met if the content difficulty is
altered or expanded OR if specially designed instruction that focuses on prerequisite skills is
provided?

In some situations, the student with a disability may require supportive training related to his or her
disability. The supportive training is frequently needed before the student is able to efficiently use an
accommodation. For example, if the student requires use of assistive technology that is new to the
student or instruction in Braille before he or she will be able to perform the skills in the standards and
benchmarks, acquisition of these skills will become a priority. Where supportive training enables a child
to participate in the general curriculum, the supportive training becomes part of the goals of the IEP.

Completing the IEP

The other parts of the IEP will be completed in the same manner as in the past. The impact on the
discussion regarding least restrictive environment is significant to mention, however. This is due to the
strong presumption that the grade or course standards and benchmarks will be the expectations that the
student is held to unless it is clearly not feasible to hold the student accountable for these expectations.
The discussion of least restrictive environment is changed to a degree because of this strong
presumption. It is a simple shift to answering the following questions for each student:
• What sites and settings enable greater involvement and progress in the general education
curriculum?
• How might the services be adapted to promote increased access to the general education classroom?

Beyond the basic questions about the content of the goals and objectives for the student with disabilities
it is important to ask the following questions that address the student's overall progress in the general
education curriculum:
• Does the performance specified in these objectives promote the child's involvement and progress in
the general education curriculum?
• How might the services be modified to enable greater involvement and progress in the curriculum?

Taken together, the answers to these questions are particularly important to consideration of the least
restrictive environment later in the IEP process. Keep in mind that the IEP team must provide a clear
explanation of why the student will not participate with non-disabled students in the general education
classroom or in other activities. This documentation should be provided in the LRE Justification section
to address the site and setting decisions made across all sections of the IEP.

Some Related Questions and Answers

1. How do I write a measurable annual goal?

2. Do the short-term objectives have to be measurable as well?

3. What does "enable the child to be involved in and progress in the general curriculum" mean?
Appendix D
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4. Do annual goals (and/or objectives) have to be written for every area of the curriculum?

5. How do I know if I need to write goals or objectives or both?

Question 1: How do I write a measurable annual goal?
Annual goals set a general direction for the specially designed instruction that the child needs because of
his or her disability. As a part of the discussion in determining these annual goals, the team needs to
consider specific courses, experiences, and skills that will be appropriate to the long-term goals for the
child, or the post-school outcomes for students beginning at age fourteen. There is a direct relationship
between the needs identified in the present levels of academic achievement and functional performance
description and these annual goals. Goals are statements of what a student can reasonably be expected to
accomplish within a twelve-month period. Goals should be written with the intent to increase the
student's successful participation in general education, include appropriate activities, and allow for
inclusion in the general education environment to the maximum extent appropriate.

There are four characteristics of a well-written measurable annual goal: it is meaningful, has a clearly
defined criteria, is able to be measured, and useful in making decisions.

• When a measurable annual goal is written it must be stated so it is meaningful. The "meaningful
determination" is made by considering a number of factors:
The skill the goal represents is necessary for success in current and future environments.
The student's family believes accomplishment of the goal is important.
The measurable annual goal specifies the level of performance and an expectation that is
reasonable.
The goal's accomplishment is related and significant to the behavior.
• The clearly defined criteria means the expected behavior or skill to be learned has a clearly defined
level for measuring whether success or skill acquisition has occurred, or not.
• A measurable annual goal can be measured. There are multiple increments of performance between
the present levels of performance and the criteria stated in the goal. The goal should be written so it
can be monitored frequently and repeatedly.
• A measurable annual goal is written to enhance decision making. Measuring the results of a goal
using data is an effective way to determine the overall effectiveness of the student's educational
services. Appropriate changes may need to be made to the student's IEP to help him/her achieve the
goal based on the data.

Factors to consider in selecting measurable annual goals. The IEP team must establish challenging goals
that can reasonably be achieved within a year and enable the child to be involved in and progress in the
general curriculum. To do so, the IEP team discusses the information from the range of sources,
including information from the student's parents, that contributed to developing the present levels of
academic achievement and functional performance. The number of measurable annual goals depends on
the student's needs. Prerequisite skills, immediate needs, and broad applicability of skills are all factors
to consider when establishing priorities. General education teachers are essential sources for setting
priorities regarding the student's involvement in the general education curriculum. Parents and
representatives of other agencies provide important information about generalization of skills into home
and community settings. Students themselves often provide critical input when establishing appropriate
annual goals.

The elements of a measurable annual goal. Measurable annual goals should include the following:
• Conditions that specify the manner in which progress toward the goal is measured.
• Conditions that are dependent on the behavior being measured and involve the application of skills
and knowledge.
Appendix D
Page 7 of 10

• A behavioral statement that clearly identifies the performance being monitored through action (e.g.,
completion of a written task) or by direct observation and is measurable.
• A criterion that identifies how much, how often, or to what standards the behavior must occur in
order to demonstrate that the goal has been reached. The goal criterion specifies the amount of
growth the student is expected to make by the end of the annual goal period.
• A timeframe that specifies the amount of time in the goal period.

Question 2: Do the short-term objectives have to be measurable as well?
Short term objectives are required only for students with severe cognitive disabilities who will be
assessed using the Alternate Assessment based on alternate achievement standards, however, writing
short term objectives is recommended for any student who might be assessed with the Alternate
Assessment in one or more subjects. Objectives are intended to assist parents and educators to monitor
progress toward meeting the annual goal(s). As such, IEP teams may choose to continue using short-
term objectives whenever it is deemed to facilitate communication. Whenever used, short-term
objectives are arranged in sequence and always include the conditions under which the skill is to be
performed, the observable behavior, and the criteria for success. In short, yes, short-term objectives must
be measurable.

Question 3: What does "enable the child to be involved in and progress in the general curriculum"
mean?
This statement means that to the extent appropriate and for most students with disabilities, the goals on
their IEP and their special educational services should support the students' access to the same
curriculum and standards that are in place for all other children.

The House Committee Report on P.L. 105-17 (the reauthorization of IDEA, 1997) includes the
following intent language:
The committee wishes to emphasize that, once a child has been identified as being
eligible for special education, the connection between special education and
related services and the child's opportunity to experience and benefit from the
general education curriculum should be strengthened. The majority of
children…are capable of participating in the general education curriculum to
varying degrees with some adaptations and modifications. This provision is
intended to ensure that children's special education and related services are in
addition to and are affected by the general education curriculum, not separate
from it.

It should be noted that the regulations define the "general curriculum" as relating to the content of the
curriculum and not to the setting in which it is used. Thus, to the extent applicable to an individual child
with a disability and consistent with LRE, the general curriculum could be used in any educational
environment.

Question 4: Do annual goals (and/or objectives) have to be written for every area of the curriculum?
IEP goals and objectives/benchmarks will not address all curricular areas or all activities in which a
child will participate. In response to comments to the initial draft of the 2004 IDEA regulations, OSEP
clarifies that IDEA does not require goals to be written for each specific discipline (Federal Register,
August 14, 2006, p 4662). Goals are written only for those areas for which special education is needed.
When the goals have been developed, then the services needed for meeting those goals are identified,
keeping in mind that related services are services to assist to benefit from special education. Several
examples illustrate how this might occur.

Appendix D
Page 8 of 10

Example number 1: a child who does not have fine motor delays will not need any "fine motor"
goals, but he/she would, of course, participate in any cutting or fine motor activities that occurred
during the normal classroom activities.

Example number 2: a child who has a writing goal may require some fine motor interventions
from the occupational therapist. The annual goal is specific to writing expectations related to the
standards. There is no need to write a separate goal for OT. Rather the OT is a service that
supports meeting the annual writing goal.

Example number 3: a child has an annual goal in reading and needs special education only for
reading. Goals in math and science are not required for the IEP, even if the child receives some
reading support in order to meet classroom expectations in math and science. Such support might
be included as an accommodation or as part of the reading goal.

It will be important to prioritize what is addressed in the goals (and/or objectives) based on the student’s
needs and important core curriculum areas such as reading, mathematics, and science, etc.)
Things to consider when writing goals:
1. Goals are measurable, meaningful, able to be monitored, and useful in making decisions.
2. Goals are statements related to needs identified in the Present Levels of Academic Achievement
and Functional Performance.
3. Goals are statements of anticipated results to be achieved in a year.
4. Progress indicators (short-term objectives) are written for each goal for any student who
participates (or has the potential to participate at some time) in the ND Alternate Assessment.
5. Short-term objectives are links for accomplishing the goal.
6. Goals and short-term objectives must be written so they can pass the "Stranger Test". In other
words, they must be written so someone who did not write it could use it to develop appropriate
instructional plans and assess student progress.
7. Goals also must pass the "So What Test" meaning that the IEP team considers how valid the goal
or short-term objective is. In conducting the "So What Test" the IEP team must answer the
following question, "Is the skill indicated in this goal, short-term objective really an important
skill for the student to learn?"

Question 5: How do I know if I need to write goals or objectives or both?

Due to the fact that the IEP team is required to make the determination as to which State Assessment
option the student will participate in, on an annual basis, it will be difficult to know whether the student
requires only goals or objectives or both. It is recommended that if the team feels that there is a
possibility that the student will participate in the ND Alternate Assessment for any content area, it is
advisable to write both goals and objectives specific to any applicable content area(s).

Appendix D
Page 9 of 10

References

34 CFR Parts 300 and 301. Assistance to States for the Education of Children with Disabilities and the
Early Intervention Program for Infants and Toddler with Disabilities: Final Regulations (April 14,
2006)

Kukic, S. and Schrag, J. (1998). IEP Connections for a Dynamic, Living and Practical Process.
Longmont, CO: Sopris West.

P.L. 105-17. Individuals with Disabilities Education Act, 1997.

P.L. 108-446. Amendments to the Individuals with Disabilities Education Act, December, 3, 2004.

Appendix D
Page 10 of 10

Appendix E

Federal Register
Part II 34 CFR Parts 300 and 301

Monday,
August 14, 2006

Part II

Department of
Education
34 CFR Parts 300 and 301
Assistance to States for the Education of
Children With Disabilities and Preschool
Grants for Children With Disabilities;
Final Rule
sroberts on PROD1PC70 with RULES

VerDate Aug<31>2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM14AUR2.SGM 14AUR2

46540 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations

DEPARTMENT OF EDUCATION Special Education Personnel (2) A new § 300.18(e), regarding
Development to Improve Services and separate ‘‘high objective uniform State
34 CFR Parts 300 and 301 Results for Children with Disabilities. In standards of evaluation’’ (HOUSSE), has
RIN 1820–AB57 the preamble to the NPRM, the been added to provide that a State may
Secretary discussed, on pages 35783 develop a separate HOUSSE for special
Assistance to States for the Education through 35819, the changes proposed to education teachers, provided that any
of Children With Disabilities and the regulations for these programs; adaptations of the State’s HOUSSE
Preschool Grants for Children With specifically, the amendments to 34 CFR would not establish a lower standard for
Disabilities part 300, the removal of 34 CFR part 301 the content knowledge requirements for
and relocation of those provisions to special education teachers and meets all
AGENCY: Office of Special Education and subpart H of 34 CFR part 300, and the the requirements for a HOUSSE for
Rehabilitative Services, Department of amendments to 34 CFR part 304. regular education teachers. This
Education. Final regulations for 34 CFR Part provision also clarifies that a State may
ACTION: Final regulations. 304—Special Education-Personnel develop a separate HOUSSE for special
Development to Improve Services and education teachers, which may include
SUMMARY: The Secretary issues final Results for Children with Disabilities single HOUSSE evaluations that cover
regulations governing the Assistance to were published in the Federal Register multiple subjects.
States for Education of Children with (71 FR 32396) on June 5, 2006, and (3) Section 300.18(g) (proposed
Disabilities Program and the Preschool became effective July 5, 2006. § 300.18(f)) (‘‘Applicability of definition
Grants for Children with Disabilities to ESEA requirements; and clarification
Program. These regulations are needed Major Changes in the Regulations
of new special education teacher’’) has
to implement changes made to the The following is a summary of the been revised as follows: (1) The heading
Individuals with Disabilities Education major substantive changes in these final has been revised, and (2) the language
Act, as amended by the Individuals with regulations from the regulations changed to clarify when a special
Disabilities Education Improvement Act proposed in the NPRM (the rationale for education teacher is considered ‘‘new’’
of 2004 (Act or IDEA). each of these changes is discussed in the for some purposes.
DATES: These regulations take effect on Analysis of Comments and Changes (4) Section 300.18(h) (proposed
October 13, 2006. section of this preamble): § 300.18(g)) has been modified to clarify
FOR FURTHER INFORMATION CONTACT: Subpart A—General that the highly qualified special
Alexa Posny, U.S. Department of education teacher requirements also do
Definitions not apply to private school teachers
Education, Potomac Center Plaza, 550
12th Street, SW., Washington, DC • The definition of child with a hired or contracted by LEAs to provide
20202–2641. Telephone: (202) 245– disability in § 300.8 has been revised as equitable services to parentally-placed
7459, ext. 3. follows: private school children with disabilities
If you use a telecommunications (1) Section 300.8(b) (Children aged under § 300.138.
three through nine experiencing • The definition of Indian and Indian
device for the deaf (TDD), you may call
developmental delays) has been tribe in § 300.21 has been changed to
the Federal Relay System (FRS) at 1–
changed to clarify that the use of the clarify that nothing in the definition is
800–877–8339.
Individuals with disabilities may term ‘‘developmental delay’’ is subject intended to indicate that the Secretary
obtain this document in an alternate to the conditions described in of the Interior is required to provide
format (e.g., Braille, large print, § 300.111(b). services or funding to a State Indian
audiotape, or computer diskette) on (2) The definition of other health tribe that is not listed in the Federal
request to the contact person listed impairment in § 300.8(c)(9)(i) has been Register list of Indian entities
under FOR FURTHER INFORMATION changed to add ‘‘Tourette Syndrome’’ to recognized as eligible to receive services
CONTACT. the list of chronic or acute health from the United States, published
problems. pursuant to Section 104 of the Federally
SUPPLEMENTARY INFORMATION: These • The definition of excess costs in Recognized Indian Tribe List Act of
regulations implement changes in the § 300.16 has been revised to clarify that 1994, 25 U.S.C. 479a–1.
regulations governing the Assistance to the computation of excess costs may not • The definition of parent in § 300.30
States for Education of Children with include capital outlay and debt service. has been revised to substitute
Disabilities Program and the Preschool In addition, a new ‘‘Appendix A to Part ‘‘biological’’ for ‘‘natural’’ each time it
Grants for Children with Disabilities 300—Excess Cost Calculation’’ has been appears in the definition, and to add
Program necessitated by the added to provide a description (and an language clarifying that to be considered
reauthorization of the IDEA. With the example) of how to calculate excess a parent under this definition a
issuance of these final regulations, part costs under the Act and these ‘‘guardian’’ must be a person generally
301 has been removed and the regulations. authorized to act as the child’s parent,
regulations implementing the Preschool • The definition of highly qualified or authorized to make educational
Grants for Children with Disabilities special education teacher in § 300.18 decisions for the child.
Program are included under subpart H has been revised, as follows: • The definition of related services in
of these final regulations. (1) Section 300.18(b), regarding § 300.34 has been revised as follows:
On June 21, 2005, the Secretary requirements for highly qualified (1) Section 300.34(a) (General) has
published a notice of proposed special education teachers in general, been modified to (A) add the statutory
rulemaking in the Federal Register (70 has been modified to clarify that, when term ‘‘early identification and
FR 35782) (NPRM) to amend the used with respect to any special assessment of disabilities in children,’’

regulations governing the Assistance to education teacher teaching in a charter which was inadvertently omitted from
States for Education of Children with school, highly qualified means that the the NPRM, (B) combine ‘‘school health
Disabilities Program, the Preschool teacher meets the certification or services’’ and ‘‘school nurse services,’’
Grants for Children with Disabilities licensing requirements, if any, set forth and (C) remove the clause relating to a
Program, and Service Obligations under in the State’s public charter school law. free appropriate public education under


Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46541

‘‘school nurse services’’ because it With the addition of the new children without disabilities in the same
duplicates the clause in § 300.34(c)(13). definition in § 300.35, the definitions in grades.
(2) Section 300.34(b) has been subpart A, beginning with the definition • A new § 300.113, regarding routine
changed to (A) expand the title to read of secondary school, have been checking of hearing aids and external
‘‘Exception; services that apply to renumbered. components of surgically implanted
children with surgically implanted • The definition of special education medical devices, has been added, as
devices, including cochlear implants,’’ in § 300.39 (proposed § 300.38) has been follows:
and (B) clarify, in new paragraph (b)(1), revised to remove the definition of (1) Paragraph (a) of § 300.113 requires
that related services do not include a vocational and technical education that each public agency to ensure that
medical device that is surgically was included in proposed hearing aids worn in school by children
implanted, the optimization of that § 300.38(b)(6). with hearing impairments, including
device’s functioning (e.g., mapping), • The definition of supplementary deafness, are functioning properly.
maintenance of that device, or the (2) A new § 300.113(b)(1) requires
aids and services in § 300.42 (proposed
replacement of that device. each public agency to ensure that the
§ 300.41) has been modified to specify
(3) A new § 300.34(b)(2) has been external components of surgically
that aids, services, and other supports
added to make clear that nothing in implanted medical devices are
are also provided to enable children
paragraph (b)(1) of § 300.34 (A) limits functioning properly. However, new
with disabilities to participate in
the right of a child with a surgically § 300.113(b)(2) has been added to make
implanted device (e.g., a cochlear extracurricular and nonacademic
it clear that, for a child with a surgically
implant) to receive related services, as settings.
implanted medical device who is
listed in § 300.34(a), that are determined Subpart B—State Eligibility receiving special education and related
by the IEP Team to be necessary for the services, a public agency is not
child to receive FAPE; (B) limits the FAPE Requirements
responsible for the post-surgical
responsibility of a public agency to • Section 300.101(c) has been revised maintenance, programming, or
appropriately monitor and maintain to clarify that a free appropriate public replacement of the medical device that
medical devices that are needed to education (FAPE) must be available to has been surgically implanted (or of an
maintain the health and safety of the any individual child with a disability external component of the surgically
child, including breathing, nutrition, or who needs special education and implanted medical device).
operation of other bodily functions, related services, even though the child
while the child is transported to and Least Restrictive Environment
has not failed or been retained in a
from school or is at school; or (C) course, and is advancing from grade to • Section 300.116(b)(3) and (c)
prevents the routine checking of an grade. regarding placements, has been revised
external component of a surgically- • Section 300.102(a)(3), regarding to remove the qualification ‘‘unless the
implanted device to make sure it is exceptions to FAPE, has been changed parent agrees otherwise’’ from the
functioning properly, as required in to clarify that a regular high school requirements that (1) the child’s
§ 300.113(b). diploma does not include an alternative placement be as close as possible to the
(4) The definition of interpreting degree that is not fully aligned with the child’s home, and (2) the child is
services in § 300.34(c)(4) has been State’s academic standards, such as a educated in the school he or she would
changed to clarify that the term includes certificate or a general educational attend if not disabled.
(A) transcription services, such as development credential (GED). • Section 300.117 (Nonacademic
communication access real-time settings) has been changed to clarify that
• Section 300.105, regarding assistive
translation (CART), C-Print, and each public agency must ensure that
technology and proper functioning of
TypeWell for children who are deaf or each child with a disability has the
hearing aids, has been re-titled
hard of hearing, and (B) special supplementary aids and services
‘‘Assistive technology,’’ and proposed
interpreting services for children who determined by the child’s
paragraph (b), regarding the proper
are deaf-blind. individualized education program (IEP)
(5) The definition of orientation and functioning of hearing aids, has been
Team to be appropriate and necessary
mobility services in § 300.34(c)(7) has moved to new § 300.113(a).
for the child to participate with
been changed to remove the term ‘‘travel • Section 300.107(a), regarding nondisabled children in the
training instruction.’’ The term is under nonacademic services, has been revised extracurricular services and activities to
the definition of special education, and to specify the steps each public agency the maximum extent appropriate to the
is defined in § 300.39(b)(4). must take, including the provision of needs of that child.
(6) The definition of school nurse supplementary aids and services
services in 300.34(c)(13) has been determined appropriate and necessary Children With Disabilities Enrolled by
expanded and re-named school health by the child’s IEP Team, to provide Their Parents in Private Schools
services and school nurse services. The nonacademic and extracurricular • Section 300.130 (definition of
expanded definition clarifies that services and activities in the manner parentally-placed private school
‘‘school nurse services’’ are provided by necessary to afford children with children with disabilities) has been
a qualified school nurse, and ‘‘school disabilities an equal opportunity for revised to clarify that the term means
health services’’ may be provided by a participation in those services and children with disabilities enrolled by
qualified school nurse or other qualified activities. their parents in private, including
person. • Proposed § 300.108(a), regarding religious, schools or facilities, that meet
• A definition of scientifically based physical education services, has been the definition of elementary school in
research has been added in new revised to specify that physical § 300.13 or secondary school in

§ 300.35 that incorporates by reference education must be made available to all § 300.36.
the definition of that term from the children with disabilities receiving • A new § 300.131(f), regarding child
Elementary and Secondary Education FAPE, unless the public agency enrolls find for out-of-State parentally-placed
Act of 1965, as amended, 20 U.S.C. 6301 children without disabilities and does private school children with disabilities,
et seq. (ESEA). not provide physical education to has been added to clarify that each LEA



in which private (including religious) find requirements in § 300.131, due process hearings under § 300.507
elementary schools and secondary including the requirements in and §§ 300.530 through 300.532, has
schools are located must include §§ 300.301 through 300.311. been revised to clarify that if a written
parentally-placed private school (2) A new paragraph (b)(2) has been complaint is received that is also the
children who reside in a State other added to provide that any due process subject of a due process hearing under
than the State in which the private complaint regarding the child find §§ 300.507 or 300.530 through 300.532,
schools that they attend are located. requirements (as described in or contains multiple issues of which one
• Section 300.133, regarding § 300.140(b)(1)) must be filed with the or more are part of a due process
expenditures for parentally-placed LEA in which the private school is hearing, the State must set aside any
private school children with disabilities, located and a copy of the complaint part of the complaint that is being
has been revised, as follows: must be forwarded to the SEA. addressed in the due process hearing
(1) A new § 300.133(a)(2)(ii), has been (3) A new § 300.140(c), regarding until the conclusion of the hearing.
added to clarify that children aged three State complaints by private school However, any issue in the complaint
through five are considered to be officials, has been added to clarify that that is not part of the due process
parentally-placed private school (A) any complaint that an SEA or LEA hearing must be resolved using the time
children with disabilities enrolled by has failed to meet the requirements in limit and procedures described
their parents in private, including §§ 300.132 through 300.135 and 300.137 elsewhere in the State complaint
religious, elementary schools, if they are through 300.144 must be filed in procedures. A new paragraph (c)(3) also
enrolled in a private school that meets accordance with the procedures has been added to require SEAs to
the definition of elementary school in described in §§ 300.151 through resolve complaints alleging a public
§ 300.13. 300.153, and (B) a complaint filed by a agency’s failure to implement a due
(2) A new § 300.133(a)(3) has been private school official under process hearing. This is the same
added to specify that, if an LEA has not § 300.136(a) must be filed with the SEA requirement in current § 300.661(c)(3).
expended for equitable services for in accordance with the procedures in • Section 300.153(c), regarding the
parentally-placed private school § 300.136(b). one year time limit from the date the
children with disabilities all of the alleged violation occurred and the date
applicable funds described in Children With Disabilities Enrolled by
Their Parents in Private Schools When the complaint is received in accordance
§ 300.133(a)(1) and (a)(2) by the end of with § 300.151, has been revised by
the fiscal year for which Congress FAPE Is at Issue
removing the exception clause related to
appropriated the funds, the LEA must Section 300.148 Placement of Children complaints covered under
obligate the remaining funds for special by Parents if FAPE Is at Issue § 300.507(a)(2).
education and related services • A new § 300.148(b), regarding
(including direct services) to parentally- Methods of Ensuring Services
disagreements about FAPE, has been
placed private school children with added (from current § 300.403(b)) to • Section 300.154(d), regarding
disabilities during a carry-over period of clarify that disagreements between a children with disabilities who are
one additional year. parent and a public agency regarding covered by public benefits or insurance,
• Section 300.136, regarding the availability of a program appropriate has been revised to clarify that the
compliance related to parentally-placed for a child with a disability, and the public agency must (1) obtain parental
private school children with disabilities, question of financial reimbursement, are consent each time that access to the
has been revised to remove the subject to the due process procedures in parent’s public benefits or insurance is
requirement that private school officials §§ 300.504 through 300.520. sought, and (2) notify parents that
must submit complaints to the SEA refusal to allow access to their public
using the procedures in §§ 300.151 State Complaint Procedures benefits or insurance does not relieve
through 300.153. • Section 300.152(a)(3)(ii) (proposed the public agency of its responsibility to
• Section 300.138(a), regarding the paragraph (a)(3)(B)) has been revised to ensure that all required services are
requirement that services to parentally- clarify that each SEA’s complaint provided at no cost to the parents.
placed private school children with procedures must provide the public
disabilities must be provided by Additional Eligibility Requirements
agency with an opportunity to respond
personnel meeting the same standards to a complaint filed under § 300.153, • Section 300.156(e), regarding
as personnel providing services in the including, at a minimum, an personnel qualifications, has been
public schools, has been modified to opportunity for a parent who has filed revised (1) to add ‘‘or a class of
clarify that private elementary school a complaint and the public agency to students,’’ to clarify that a judicial
and secondary school teachers who are voluntarily engage in mediation action on behalf of a class of students
providing equitable services to consistent with § 300.506. may not be filed for failure of a
parentally-placed private school • Section 300.152(b)(1)(ii), regarding particular SEA or LEA employee to be
children with disabilities do not have to time extensions for filing a State highly qualified, and (2) to substitute
meet the highly qualified special complaint, has been revised to clarify the word ‘‘employee’’ for ‘‘staff person,’’
education teacher requirements in that it would be permissible to extend to be more precise in the rule of
§ 300.18. the 60-day timeline if the parent (or construction in new § 300.18(f)
• Section 300.140, regarding due individual or organization if mediation (proposed § 300.18(e)).
process complaints and State or other alternative means of dispute • Section 300.160 (participation in
complaints, has been revised to make resolution is available to the individual assessments) has been removed, and the
the following changes: or organization under State procedures) section has been designated as
(1) Section 300.140(b)(1) (proposed and the public agency agree to engage in ‘‘Reserved.’’ Participation in

§ 300.140(a)(2)), regarding child find mediation or to engage in other assessments is the subject of a new
complaints, has been changed to clarify alternative means of dispute resolution, notice of proposed rulemaking issued
that the procedures in §§ 300.504 if available in the State. on December 15, 2005 (70 FR 74624) to
through 300.519 apply to complaints • Section 300.152(c), regarding amend the regulations governing
that an LEA has failed to meet the child complaints filed under § 300.152 and programs under Title I of the ESEA and



Part B of the IDEA regarding additional consent from the parent for an initial proposed paragraph (a)(2) of § 300.307
flexibility for States to measure the evaluation. has been redesignated as paragraph
achievement of children with (2) Section 300.300(a)(3), regarding a (a)(1).
disabilities based on modified parent’s failure to provide consent for (2) Section 300.307(a)(2) (proposed
achievement standards. initial evaluation, has been changed to paragraph (a)(3)) has been changed to
clarify, in a new paragraph (a)(3)(ii), that clarify that the criteria adopted by the
Other Provisions Required for State the public agency does not violate its State must permit the use of a process
Eligibility obligation under § 300.111 and based on the child’s response to
• Section 300.172, regarding access to §§ 300.301 through 300.311 if it declines scientific, research-based intervention.
instructional materials, has been to pursue the evaluation. • Section 300.308 (Group members)
revised: (1) To make clear that States (3) Section 300.300(b), regarding has been changed to require the
must adopt the National Instructional parental consent for services, has been eligibility group for children suspected
Materials Accessibility Standard modified by a new paragraph (b)(2) that of having SLD to include the child’s
(NIMAS), published as Appendix C to requires a public agency to make parents and a team of qualified
these final regulations; (2) to establish a reasonable efforts to obtain informed professionals, which must include the
definition of ‘‘timely manner,’’ for consent from the parent for the initial child’s regular teacher (or if the child
purposes of § 300.172(b)(2) and (b)(3) if provision of special education and does not have a regular teacher, a
the State is not coordinating with the related services. regular classroom teacher qualified to
National Instructional Materials Access (4) Section 300.300(c)(1), regarding teach a child of his or her age) or for a
Center (NIMAC), or § 300.172(b)(3) and parental consent for reevaluations, has child of less than school age, an
(c)(2) if the State is coordinating with been modified to clarify that if a parent individual qualified by the SEA to teach
the NIMAC; (3) to add a new refuses to consent to a reevaluation, the a child of his or her age; and at least one
§ 300.172(b)(4) to require SEAs to public agency may, but is not required person qualified to conduct individual
ensure that all public agencies take all to, pursue the reevaluation by using the diagnostic examinations of children,
reasonable steps to provide instructional consent override procedures in such as a school psychologist, speech-
materials in accessible formats to § 300.300(a)(3), and the public agency language pathologist, or remedial
children with disabilities who need does not violate its obligation under reading teacher. These are the same
those instructional materials at the same § 300.111 and §§ 300.301 through requirements in current § 300.540.
time as other children receive 300.311 if it declines to pursue the • Section 300.309 (Determining the
instructional materials; and (4) to add a evaluation or reevaluation. existence of a specific learning
new § 300.172(e)(2) to clarify, that all (5) A new § 300.300(d)(4) has been disability) has been revised, as follows:
added to provide that if a parent of a (1) Paragraph (a) of § 300.309 has been
definitions in § 300.172(e)(1) apply to
child who is home schooled or placed changed (A) to clarify that the group
each State and LEA, whether or not the
in a private school by the parent at the described in 300.306 may determine
State or LEA chooses to coordinate with
parent’s expense, does not provide that a child has a specific learning
the NIMAC.
consent for an initial evaluation or a disability if the child does not achieve
• A new § 300.177 has been added to
reevaluation, or the parent fails to adequately for the child’s age or to meet
include a provision regarding ‘‘States’
respond to a request to provide consent, State-approved grade-level standards in
sovereign immunity.’’ That provision,
the public agency (A) may not use the one or more of eight areas (e.g., oral
which has been added to incorporate
consent override procedures (described expression, basic reading skill, etc.),
the language in section 604 of the Act,
elsewhere in § 300.300), and (B) is not when provided with learning
makes clear that a State that accepts
required to consider the child eligible experiences and instruction appropriate
funds under Part B of the Act waives its
for services under the requirements for the child’s age or State-approved
immunity under the 11th amendment of
relating to parentally-placed private grade-level standards; and (B) to add
the Constitution of the United States
school children with disabilities ‘‘limited English proficiency’’ to the
from suit in Federal court for a violation
(§§ 300.132 through 300.144). other five conditions that could account
of Part B of the Act.
(6) A new § 300.300(d)(5) has been for the child’s learning problems, and
Subpart D—Evaluations, Eligibility added to clarify that in order for a that the group considers in determining
Determinations, Individualized public agency to meet the reasonable whether the child has an SLD.
Education Programs, and Educational efforts requirement to obtain informed (2) Section 300.309(b) has been
Placements parental consent for an initial changed to clarify (A) that, in order to
evaluation, initial services, or a ensure that underachievement in a child
Parental Consent suspected of having an SLD is not due
reevaluation, a public agency must
• Section 300.300, regarding parental document its attempts to obtain parental to lack of appropriate instruction in
consent, has been revised, as follows: consent using the procedures in reading or math, the group must
(1) Paragraph (a) of § 300.300, § 300.322(d). consider, as part of the evaluation
regarding consent for initial evaluation, described in §§ 300.304 through
has been changed to provide that the Additional Procedures for Evaluating 300.306, data that demonstrate that
public agency proposing to conduct an Children With Specific Learning prior to, or as a part of, the referral
initial evaluation to determine if a child Disabilities (SLD) process, the child was provided
qualifies as a child with a disability • Section 300.307 (Specific learning appropriate instruction in regular
must, after providing notice consistent disabilities) has been revised, as education settings, delivered by
with §§ 300.503 and 300.504, obtain follows: qualified personnel, and (B) to replace
informed consent, consistent with (1) Proposed paragraph (a)(1) of (in paragraph (b)(1)) the term ‘‘high

§ 300.9, from the parent of the child § 300.307, which allowed a State to quality research-based instruction’’ with
before conducting the evaluation. A new prohibit the use of a severe discrepancy ‘‘appropriate instruction.’’
paragraph (a)(1)(iii) has been added to between intellectual ability and (3) Section 300.309(c) has been
require a public agency to make achievement for determining if a child changed to provide that the public
reasonable efforts to obtain the informed has an SLD, has been removed, and agency must promptly request parental



consent to evaluate a child suspected of disadvantage, or limited English the provision into three separate
having an SLD who has not made proficiency on the child’s achievement paragraphs (§ 300.323(e), (f), and (g)) for
adequate progress after an appropriate level. purposes of clarity and improved
period of time when provided (4) A new § 300.311(a)(7) has been readability (e.g., transfers within the
appropriate instruction, and whenever a added to provide that if the child has same State, transfers from another State,
child is referred for an evaluation. participated in a process that assesses and transmittal of records); (2) adopt
• Section 300.310, regarding the child’s response to scientific, ‘‘school year’’ in lieu of ‘‘academic
Observation, has been revised, as research-based intervention, the year’’ as the term commonly used by
follows: documentation must include the parents and public agencies; and (3)
(1) Paragraph (a) of proposed instructional strategies used and the adopt other modifiers (e.g., ‘‘new’’ and
§ 300.310 has been revised (A) to student-centered data collected, and ‘‘previous’’) to distinguish between
remove the phrase ‘‘trained in documentation that the child’s parents States and public agencies that are
observation, and (B) to specify that the were notified about (A) the State’s involved in transfers by children with
public agency must ensure that the policies regarding the amount and disabilities.
child is observed in the child’s learning nature of student performance data that • Section 300.324(a)(4), regarding
environment. would be collected and the general changes to an IEP after the annual IEP
(2) A new § 300.310(b) has been education services that would be meeting for a school year, has been
added to require the eligibility group to provided, (B) strategies for increasing restructured into two paragraphs, and a
decide to (A) use information obtained the child’s rate of learning, and (C) the new paragraph (a)(4)(ii) has been added
from an observation in routine parents’ right to request an evaluation. to require the public agency to ensure
classroom instruction and monitoring of that, if changes are made to a child’s IEP
the child’s performance that was done Individualized Education Programs
without an IEP meeting, that the child’s
before the child was referred for an • Section 300.320 (Definition of IEP) IEP Team is informed of the changes.
evaluation, or (B) have at least one has been revised in paragraph (a)(5) to • Section 300.324(b), regarding the
member of the group described in replace ‘‘regular education review and revision of IEPs, has been
§ 300.306(a)(1) conduct an observation environment’’ with ‘‘regular class,’’ in changed to include a new paragraph
of the child’s academic performance in order to be consistent with the language (b)(2), to clarify that, in conducting a
the regular classroom after the child has in the Act. review of a child’s IEP, the IEP Team
been referred for an evaluation and • Section 300.321(e), regarding must consider the same special factors
parental consent is obtained. attendance at IEP Team meetings, has it considered when developing the
Paragraph (b) of proposed § 300.310 been revised to clarify that the excusal child’s IEP.
has been redesignated as new of IEP Team members from attending an
§ 300.310(c). IEP Team meeting under certain Subpart E—Procedural Safeguards
• Section 300.311 (Written report) has circumstances, refers to the IEP Team • Section 300.502, regarding
been renamed ‘‘Specific documentation members in § 300.320(a)(2) through independent educational evaluations,
for the eligibility determination,’’ and (a)(5). has been revised, as follows:
has been revised, as follows: • Section 300.322, regarding parent (1) A new § 300.502(b)(5) has been
(1) Section 300.311(a)(5), regarding participation, has been revised to: (1) added to make clear that a parent is
whether the child does not achieve Include, in § 300.322(d), examples of the entitled to only one independent
commensurate with the child’s age, has records a public agency must keep of its educational evaluation at public
been modified and expanded to add attempts to involve the parents in IEP expense each time the public agency
whether the child does not achieve meetings; (2) add a new § 300.322(e), conducts an evaluation with which the
adequately for the child’s age or to meet which requires the public agency to take parent disagrees.
State-approved grade-level standards whatever action is necessary to ensure (2) Section 300.502(c) has been
consistent with § 300.309(a)(1), and (A) that the parent understands the changed to clarify that if a parent
the child does not make sufficient proceedings of the IEP meeting, obtains an independent evaluation at
progress to meet age or to meet State- including arranging for an interpreter public expense or shares with the public
approved grade-level standards for parents with deafness or whose agency an evaluation obtained at private
consistent with § 300.309(a)(2)(i), or (B) native language is other than English; expense, the public agency must
the child exhibits a pattern of strengths and (3) redesignate paragraph (e) as consider the evaluation, if it meets
and weaknesses in performance, paragraph (f) accordingly. agency criteria, in any decision made
achievement, or both, relative to age, • Section 300.323(d) has been revised with respect to the provision of FAPE to
State-approved grade level standards or to require public agencies to ensure that the child.
intellectual development consistent each regular teacher, special education • Section 300.504 (Procedural
with § 300.309(a)(2)(ii). teacher, related services provider, and safeguards notice) has been revised, as
(2) Proposed § 300.311(a)(6), regarding any other service provider who is follows:
whether there are strengths or responsible for the implementation of a (1) Paragraph (a)(2) of § 300.504 has
weaknesses or both in performance or child’s IEP, is informed of his or her been changed to add that a copy of the
achievement or both relative to specific responsibilities related to procedural safeguards notice must be
intellectual development, has been implementing the child’s IEP and the given upon receipt of the first due
removed. specific accommodations, process complaint under § 300.507 in a
(3) A new § 300.311(a)(6) has been modifications, and supports that must school year, as well as upon receipt of
added to clarify that the documentation be provided for the child in accordance the first State complaint under § 300.151
must include a statement of the with the child’s IEP. These are the same through 300.153.

determination of the group concerning requirements in current (2) A new § 300.504(a)(3) has been
the effects of visual, hearing, or motor § 300.342(b)(3)(i) and (b)(3)(ii). added to provide that the notice must be
disability, mental retardation, emotional • Section 300.323(e), regarding IEPs given to the parents of a child with a
disturbance, cultural factors, for children who transfer public disability in accordance with the
environmental or economic agencies, has been revised to: (1) Divide discipline procedures in § 300.530(h).



• Section 300.506(b), regarding the process complaint or fails to participate under § 300.300(b), then the public
requirements for mediation, has been in the resolution meeting, the parent agency must provide those special
revised by (1) removing the provision may seek the intervention of a hearing education and related services that are
about the ‘‘confidentiality pledge,’’ in officer to begin the due process hearing not in dispute between the parent and
proposed paragraph (b)(9), because it is timelines. the public agency.
no longer required under the Act, and (5) A new § 300.510(c) (Adjustments • Section 300.520(b), regarding a
(2) changing paragraph (b)(8), regarding to the 30-day resolution period) has special rule about the transfer of
the prohibition against using been added that specifies exceptions to parental rights at the age of majority, has
discussions that occur in the mediation the 30-day resolution period (e.g., (A) been revised to more clearly state that
process, to clarify that ‘‘civil both parties agree in writing to waive a State must establish procedures for
proceedings’’ includes any Federal court the resolution meeting; (B) after either appointing the parent of a child with a
or State court of a State receiving the mediation or resolution meeting disability, or if the parent is not
assistance under this part. starts but before the end of the 30-day available, another appropriate
• Section 300.509, regarding model period, the parties agree in writing that individual, to represent the educational
forms to assist parents and public no agreement is possible; or (C) if both interests of the child throughout the
agencies in filing due process parties agree in writing to continue the child’s eligibility under Part B of the Act
complaints and parents and other mediation at the end of the 30-day if, under State law, a child who has
parties in filing State complaints, has resolution period, but later, the parent reached the age of majority, but has not
been revised to add, with respect to due or public agency withdraws from the been determined to be incompetent, can
process complaints, ‘‘public agencies,’’ mediation process). Subsequent be determined not to have the ability to
and with respect to State complaints, paragraphs have been renumbered provide informed consent with respect
‘‘other parties,’’ as well as parents, and accordingly. to the child’s educational program.
to clarify that (1) while each SEA must (6) Paragraph (d)(2) of § 300.510
develop model forms, the SEA or LEA (proposed paragraph(c)(2)), regarding Discipline Procedures
may not require the use of the forms, the enforceability of a written settlement • Section 300.530(d)(1)(i), regarding
and (2) parents, public agencies, and agreement in any State court of services, has been revised to be
other parties may either use the competent jurisdiction or in a district consistent with section 615(k)(1)(D)(i) of
appropriate model form, or another form court of the United States, has been the Act, by adding a reference to the
or other document, so long as the form expanded to add the SEA, if the State FAPE requirements in § 300.101(a).
or document meets, as appropriate, the has other mechanisms or procedures • Section 300.530(d)(4), regarding the
requirements for filing a due process that permit parties to seek enforcement removal of a child with a disability from
complaint or a State complaint. of resolution agreements, pursuant to a the child’s current placement for 10
• Section 300.510 (Resolution new § 300.537. school days in the same school year, has
process) has been revised, as follows: • Section 300.513(a) (Decision of been revised to remove the reference to
(1) Section 300.510(b)(1), regarding hearing officer) has been revised by (1) school personnel, in consultation with
the resolution period, has been changed changing the paragraph title to read at least one of the child’s teachers,
to state that a due process hearing ‘‘may ‘‘Decision of hearing officer on the determining the location in which
occur’’ (in lieu of ‘‘must occur’’) by the provision of FAPE,’’ and (2) clarifying services will be provided.
end of the resolution period, if the that a hearing officer’s determination of • Section 300.530(d)(5), regarding
parties have not resolved the dispute whether a child received FAPE must be removals that constitute a change of
that formed the basis for the due process based on substantive grounds. placement under § 300.536, has been
complaint. • Section 300.515(a), regarding revised to remove the reference to the
(2) A new § 300.510(b)(3) has been timelines and convenience of hearings IEP Team determining the location in
added to provide that, except where the and reviews, has been revised to include which services will be provided.
parties have jointly agreed to waive the a specific reference to the adjusted time • A new § 300.530(e)(3), has been
resolution process or to use mediation periods described in § 300.510(c). added to provide that, if the LEA, the
(notwithstanding § 300.510(b)(1) and • Section 300.516(b), regarding the parent, and members of the child’s IEP
(2)), the failure of a parent filing a due 90-day time limitation from the date of Team determine that the child’s
process complaint to participate in the the decision of the hearing to file a civil behavior was the direct result of the
resolution meeting will delay the action, has been revised to provide that LEA’s failure to implement the child’s
timelines for the resolution process and the 90-day period begins from the date IEP, the LEA must take immediate steps
due process hearing until the meeting is of the decision of the hearing officer or to remedy those deficiencies.
held. the decision of the State review official. • Section 300.530(h), regarding
(3) A new § 300.510(b)(4) has been • Section 300.518 (Child’s status notification, has been changed to
added to provide that if an LEA is during proceedings) has been revised by specify that, on the date on which a
unable to obtain the participation of the adding a new paragraph (c), which decision is made to make a removal that
parent in the resolution meeting after provides that if a complaint involves an constitutes a change in the placement of
reasonable efforts have been made, and application for initial services under a child with a disability because of a
documented using the procedures in this part from a child who is violation of a code of student conduct,
§ 300.322(d), the LEA may, at the transitioning from Part C of the Act to the LEA must notify the parents of that
conclusion of the 30-day resolution Part B and is no longer eligible for Part decision, and provide the parents the
period, request that a hearing officer C services because the child has turned procedural safeguards notice described
dismiss the parent’s due process 3, the public agency is not required to in § 300.504.
complaint. provide the Part C services that the • Section 300.532 (Appeal) has been

(4) A new paragraph (b)(5) of child had been receiving. If the child is revised, as follows:
§ 300.510 has been added to provide found eligible for special education and (1) Paragraph (a) of § 300.532,
that, if the LEA fails to hold the related services under Part B and the regarding the conditions in which the
resolution meeting within 15 days of parent consents to the initial provision parent of a child with a disability or an
receiving notice of a parent’s due of special education and related services LEA may request a hearing, has been



modified to clarify that the hearing is Subpart F—Monitoring, Enforcement, Rights and Privacy Act (FERPA, 34 CFR
requested by filing a complaint pursuant Confidentiality, and Program part 99).
to §§ 300.507 and 300.508(a) and (b). Information (2) A new § 300.622(b)(1) has been
added to clarify that parental consent is
(2) Section 300.532(b)(3) has been Monitoring, Technical Assistance, and not required before personally
changed to more definitively provide Enforcement identifiable information is released to
that if the LEA believes that returning
the child to his or her original • Section 300.600 (State monitoring officials of participating agencies for
and enforcement) has been revised, as purposes of meeting a requirement of
placement is substantially likely to
follows: Part B of the Act or these regulations.
result in injury to the child or others. (3) A new § 300.622(b)(2) has been
(1) Section 300.600(a) has been
(3) Section 300.532(c)(3), regarding an amended to require the State to enforce added to provide that parental consent
expedited due process hearing, has been Part B of the Act in accordance with must be obtained before personally
adjusted to provide that unless the § 300.604(a)(1) and (a)(3), (b)(2)(i) and identifiable information is released to
parents and an LEA agree in writing to (b)(2)(v), and (c)(2). officials of participating agencies that
waive a resolution meeting, or agree to (2) A new paragraph (d) has been provide or pay for transition services.
use the mediation process described in added, which provides that the State (4) A new paragraph (b)(3) has been
§ 300.506, the resolution meeting must added to require that, with respect to
must monitor the LEAs located in the
occur within seven days of receiving parentally-placed private school
State, using quantifiable indicators in
notice of the due process complaint, and children with disabilities, parental
each of the following priority areas, and
the hearing may proceed within 15 days consent must be obtained before any
such qualitative indicators as are
of receipt of the due process complaint personally identifiable information is
needed to adequately measure
unless the matter has been resolved to released between officials in the LEA
performance in those areas, including:
satisfaction of both parties. where the private school is located and
(A) Provision of FAPE in the least
the LEA of the parent’s residence.
(4) Proposed § 300.532(c)(4), regarding restrictive environment; (B) State (5) Proposed § 300.622(c), regarding
the two-day timeframe for disclosing exercise of general supervision, the requirement to provide policies and
information to the opposing party prior including child find, effective procedures for use in the event that a
to an expedited due process hearing, has monitoring, the use of resolution parent refuses to consent, has been
been removed. meetings, and a system of transition removed because it is covered elsewhere
• Section 500.536(a)(2)(ii) (proposed services as defined in § 300.43 and in 20 in these regulations.
§ 300.536(b)(2)) has been revised to U.S.C. 1437(a)(9); and (C)
disproportionate representation of racial Subpart G—Authorization, Allotment,
remove the requirement that a child’s Use of Funds, and Authorization of
and ethnic groups in special education
behavior must have been a Appropriations
and related services, to the extent the
manifestation of the child’s disability
representation is the result of Allotments, Grants, and Use of Funds
before determining that a series of
inappropriate identification.
removals constitutes a change in • Section 300.701(a)(1)(ii)(A),
placement under § 300.536. Paragraph • A new § 300.601(b)(2), regarding
regarding the applicable requirements of
(a)(2)(ii) has also been amended to State use of targets and reporting, has
Part B of the Act that apply to freely
reference the child’s behavior in been added to specify that, if permitted
associated States, has been revised by
‘‘previous’’ incidents that resulted in the by the Secretary, if a State collects data
removing the five listed requirements
series of removals. on an indicator through State
because those requirements did not
monitoring or sampling, the State must
• A new § 300.536(b) has been added include all requirements that apply to
collect data on the indicator at least
to clarify that the public agency (subject freely associated States. This change
once during the period of the State
to review through the due process and clarifies that freely associated States
performance plan.
judicial proceedings) makes the must meet the applicable requirements
• A new § 300.608(b), regarding State that apply to States under Part B of the
determination, on a case-by-case basis, enforcement, has been added to specify
whether a pattern of removals Act.
that States are not restricted from • Section 300.704(c)(3)(i), regarding
constitutes a change in placement and utilizing any other authority available to
that the determination is subject to the requirement to develop, annually
them to monitor and enforce the review, and revise (if necessary) a State
review through due process and judicial requirements of Part B of the Act.
determinations. plan for the high cost fund, has been
Confidentiality of Information revised to add a new paragraph (F) that
• A new § 300.537 (State enforcement requires that if the State elects to reserve
mechanisms) has been added to clarify • Section 300.622 (Consent) has been funds for supporting innovative and
that notwithstanding § 300.506(b)(7) and restructured and revised to more effective ways of cost sharing, it must
§ 300.510(c)(2), which provide for accurately reflect the Department’s describe in its State plan how these
judicial enforcement of a written policy regarding when parental consent funds will be used.
agreement reached as a result of a is required for disclosures of personally • Section 300.706 (Allocation for
mediation or resolution meeting, identifiable information, as follows: State in which by-pass is implemented
nothing in this part would prevent the (1) Paragraph (a) of § 300.622 has been for parentally-placed private school
SEA from using other mechanisms to changed to provide that parental children with disabilities) has been
seek enforcement of that agreement, consent must be obtained before removed because it is no longer
provided that use of those mechanisms personally identifiable information is applicable. The section has been
is not mandatory and does not delay or disclosed to parties other than officials redesignated as ‘‘Reserved.’’

deny a party the right to seek of participating agencies, unless the
enforcement of the written agreement in information is contained in education Secretary of the Interior
a State court of competent jurisdiction records, and the disclosure is authorized • Section 300.707 (Use of amounts by
or in a district court of the United without parental consent under the Secretary of the Interior) has been
States. regulations for the Family Educational changed, as follows:



(1) The definition of Tribal governing or other matters that are not directly Comment: One commenter requested
body of a school has been replaced with relevant to these regulations, such as that the regulations clarify that an
the definition of tribal governing body requests for information about assistive technology device is not
from 25 U.S.C. 2021(19). innovative instructional methods or synonymous with an augmentative
(2) Section 300.707(c), regarding an matters that are within the purview of communication device. A few
additional requirement under ‘‘Use of State and local decision-makers. commenters recommended including
amounts by Secretary of the Interior,’’ recordings for the blind and dyslexic
Subpart A—General
has been revised to clarify that, with playback devices in the definition of
respect to all other children aged 3 to Definitions Used in This Part assistive technology devices. Some
21, inclusive, on reservations, the SEA commenters recommended including
Applicability of This Part to State and
of the State in which the reservation is language in the regulations clarifying
Local Agencies (§ 300.2)
located must ensure that all the that medical devices used for breathing,
requirements of Part B of the Act are Comment: None. nutrition, and other bodily functions are
met. Discussion: Section § 300.2(c)(2) assistive technology devices.
• Section 300.713 (Plan for contains an incorrect reference to Discussion: The definition of assistive
coordination of services) has been § 300.148(b). The correct reference technology device does not list specific
revised to require (1) in § 300.713(a), the should be to § 300.148. devices, nor would it be practical or
Secretary of the Interior to develop and Changes: We have removed the possible to include an exhaustive list of
implement a plan for the coordination reference to § 300.148(b) and replaced it assistive technology devices. Whether
of services for all Indian children with with a reference to § 300.148. an augmentative communication device,
disabilities residing on reservations Assistive Technology Device (§ 300.5) playback devices, or other devices could
served by elementary schools and be considered an assistive technology
Comment: Some commenters opposed device for a child depends on whether
secondary schools for Indian children the exclusion of surgically implanted
operated or funded by the Secretary of the device is used to increase, maintain,
medical devices in the definition of or improve the functional capabilities of
the Interior, and (2) in § 300.713(b), the assistive technology device. Another
plan to provide for the coordination of a child with a disability, and whether
commenter recommended limiting the the child’s individualized education
services benefiting these children from definition of assistive technology device
whatever source covered by the plan, program (IEP) Team determines that the
to a device that is needed to achieve child needs the device in order to
including SEAs, and State, local, and educational outcomes, rather than
tribal juvenile and adult correctional receive a free appropriate public
requiring local educational agencies education (FAPE). However, medical
facilities. (LEAs) to pay for any assistive devices that are surgically implanted,
Analysis of Comments and Changes technology device that increases, including those used for breathing,
maintains, or improves any functional nutrition, and other bodily functions,
Introduction need of the child. are excluded from the definition of an
In response to the invitation in the Discussion: The definition of assistive assistive technology device in section
NPRM, more than 5,500 parties technology device in § 300.5 602(1)(B) of the Act. The exclusion
submitted comments on the proposed incorporates the definition in section applicable to a medical device that is
regulations. An analysis of the 602(1)(B) of the Act. We do not believe surgically implanted includes both the
comments and of the changes in the the definition should be changed in the implanted component of the device, as
regulations since publication of the manner suggested by the commenters well as its external components.
NPRM immediately follows this because the changes are inconsistent Changes: None.
introduction. with the statutory definition. The Comment: A few commenters asked
The perspectives of parents, definition in the Act specifically refers whether the definition of assistive
individuals with disabilities, teachers, to any item, piece of equipment, or technology device includes an internet-
related services providers, State and product system that is used to increase, based instructional program, and what
local officials, members of Congress, maintain, or improve the functional the relationship is between internet-
and others were very important in capabilities of the child and specifically based instructional programs and
helping us to identify where changes to excludes a medical device that is specially-designed instruction.
the proposed regulations were surgically implanted or the replacement Discussion: An instructional program
necessary, and in formulating many of of such device. Accordingly, we is not a device, and, therefore, would
the changes. In light of the comments continue to believe it is appropriate to not meet the definition of an assistive
received, a number of significant exclude surgically implanted medical technology device. Whether an internet-
changes are reflected in these final devices from this definition. In response based instructional program is
regulations. to the second comment, § 300.105(a) appropriate for a particular child is
We discuss substantive issues under requires each public agency to ensure determined by the child’s IEP Team,
the subpart and section to which they that assistive technology devices (or which would determine whether the
pertain. References to subparts in this assistive technology services, or both) program is needed in order for the child
analysis are to those contained in the are made available to a child with a to receive FAPE.
final regulations. The analysis generally disability if required as part of the Changes: None.
does not address— child’s special education, related Comment: A few commenters
(a) Minor changes, including services, or supplementary aids and recommended including the proper
technical changes made to the language services. This provision ties the functioning of hearing aids in the
published in the NPRM; definition to a child’s educational definition of assistive technology device.

(b) Suggested changes the Secretary is needs, which public agencies must meet Discussion: We believe that the
not legally authorized to make under in order to ensure that a child with a provision requiring public agencies to
applicable statutory authority; and disability receives a free appropriate ensure that hearing aids worn in school
(c) Comments that express concerns of public education (FAPE). are functioning properly is more
a general nature about the Department Changes: None. appropriately included in new § 300.113



(proposed § 300.105(b)). As noted in the telephone assisted services, was an paragraph that sets forth the Federal
Analysis of Comments and Changes important skill for a particular child definition];
section discussing subpart B, we have (e.g., as part of a transition plan), it 2. Is created by a developer as a
added a new § 300.113 to address the would be appropriate to conduct an public school, or is adapted by a
routine checking (i.e., making sure they evaluation of that particular child to developer from an existing public
are turned on and working) of hearing determine if the child needed school, and is operated under public
aids and external components of specialized instruction in order to use supervision and direction;
surgically implanted devices. such services. 3. Operates in pursuit of a specific set
Changes: None. Changes: None. of educational objectives determined by
Comment: One commenter requested the school’s developer and agreed to by
Assistive Technology Service (§ 300.6) that the definition of assistive the authorized public chartering agency;
Comment: One commenter requested technology service specifically exclude a 4. Provides a program of elementary
clarifying ‘‘any service’’ in the medical device that is surgically or secondary education, or both;
definition of assistive technology implanted, the optimization of device 5. Is nonsectarian in its programs,
service. functioning, maintenance of the device, admissions policies, employment
Discussion: We believe the definition and the replacement of the device. practices, and all other operations, and
is clear that an assistive technology Discussion: The definition of related is not affiliated with a sectarian school
service is any service that helps a child services in § 300.34(b) specifically or religious institution;
with a disability select an appropriate excludes a medical device that is 6. Does not charge tuition;
assistive technology device, obtain the surgically implanted, the optimization 7. Complies with the Age
device, or train the child to use the of device functioning, maintenance of Discrimination Act of 1975, Title VI of
device. the device, or the replacement of that the Civil Rights Act of 1964, Title IX of
Changes: None. device. In addition, the definition of the Education Amendments of 1972,
Comment: One commenter stated that assistive technology device in § 300.5 Section 504 of the Rehabilitation Act of
services necessary to support the use of specifically excludes a medical device 1973, Title II of the Americans with
playback devices for recordings for the that is surgically implanted and the Disabilities Act of 1990, and Part B of
blind and dyslexic should be added to replacement of that device. We believe the Individuals with Disabilities
the definition of assistive technology it is unnecessary to repeat these Education Act;
service. exclusions in the definition of assistive 8. Is a school to which parents choose
Discussion: A service to support the technology service. to send their children, and that admits
use of recordings for the blind and Changes: None. students on the basis of a lottery, if more
dyslexic on playback devices could be students apply for admission than can
considered an assistive technology Charter School (§ 300.7) be accommodated;
service if it assists a child with a Comment: Several commenters 9. Agrees to comply with the same
disability in the selection, acquisition, suggested that we include in the Federal and State audit requirements as
or use of the device. If so, and if the regulations the definitions of terms that do other elementary schools and
child’s IEP Team determines it is are defined in other statutes. For secondary schools in the State, unless
needed for the child to receive FAPE, example, one commenter requested such requirements are specifically
the service would be provided. The including the definition of charter waived for the purpose of this program
definition of assistive technology service school in the regulations. [the Public Charter School Program];
does not list specific services. We do not Discussion: Including the actual 10. Meets all applicable Federal,
believe it is practical or possible to definitions of terms that are defined in State, and local health and safety
include an exhaustive list of assistive statutes other than the Act is requirements;
technology services, and therefore, problematic because these definitions 11. Operates in accordance with State
decline to add the specific assistive may change over time (i.e., through law; and
technology service recommended by the changes to statutes that establish the 12. Has a written performance
commenter to the definition. definitions). In order for these contract with the authorized public
Changes: None. regulations to retain their accuracy over chartering agency in the State that
Comment: One commenter time, the U.S. Department of Education includes a description of how student
recommended evaluating all children (Department) would need to amend the performance will be measured in charter
with speech or hearing disabilities to regulations each time an included schools pursuant to State assessments
determine if they can benefit from the definition that is defined in another that are required of other schools and
Federal Communications Commission’s statute changes. The Department pursuant to any other assessments
specialized telephone assistive services believes that this could result in mutually agreeable to the authorized
for people with disabilities. significant confusion. public chartering agency and the charter
Discussion: Evaluations under section However, we are including the school.
614 of the Act are for the purpose of current definition of charter school in Changes: None.
determining whether a child has a section 5210(1) of the ESEA here for Child With a Disability (§ 300.8)
disability and because of that disability reference.
needs special education and related The term charter school means a General (§ 300.8(a))
services, and for determining the child’s public school that: Comment: Several commenters stated
special education and related services 1. In accordance with a specific State that many children with fetal alcohol
needs. It would be inappropriate under statute authorizing the granting of syndrome (FAS) do not receive special
the Act to require evaluations for other charters to schools, is exempt from education and related services and

purposes or to require an evaluation for significant State or local rules that recommended adding a disability
telephone assistive services for all inhibit the flexible operation and category for children with FAS to help
children with speech and hearing management of public schools, but not solve this problem.
disabilities. However, if it was from any rules relating to the other Discussion: We believe that the
determined that learning to use requirements of this paragraph [the existing disability categories in section



602(3) of the Act and in these determine whether a service that is performance,’’ which school district
regulations are sufficient to include included in the definition of related personnel interpret to mean that the
children with FAS who need special services should also be considered child must be failing in school to
education and related services. Special special education in that State. receive special education and related
education and related services are based Changes: None. services.
on the identified needs of the child and Comment: None. Discussion: As noted in the Analysis
not on the disability category in which Discussion: Section § 300.8(a)(2)(ii) of Comments and Changes section
the child is classified. We, therefore, do contains an incorrect reference to discussing subpart B, we have clarified
not believe that adding a separate § 300.38(a)(2). The correct reference in § 300.101(c) that a child does not
disability category for children with should be to § 300.39(a)(2). have to fail or be retained in a course
FAS is necessary to ensure that children Changes: We have removed the or grade in order to be considered for
with FAS receive the special education reference to § 300.38(a)(2) and replaced special education and related services.
and related services designed to meet it with a reference to § 300.39(a)(2). However, in order to be a child with a
their unique needs resulting from FAS. Children Aged Three Through Nine disability under the Act, a child must
Changes: None. Experiencing Developmental Delays have one or more of the impairments
Comment: Some commenters identified in section 602(3) of the Act
(§ 300.8(b))
suggested that the definition of child and need special education and related
with a disability be changed to ‘‘student Comment: Several commenters services because of that impairment.
with a disability’’ and that the word expressed support for allowing LEAs to Given the change in § 300.101(c), we do
‘‘student,’’ rather than ‘‘child,’’ be used select a subset of the age range from not believe clarification in § 300.8(c)(3)
throughout the regulations because three through nine for their definition of is necessary.
students over the age of 18 are not developmental delay. A few Changes: None.
children. commenters recommended clarifying
Discussion: Section 602(3) of the Act that States, not the LEAs, define the age Emotional Disturbance (§ 300.8(c)(4))
defines child with a disability, not range of children eligible under this Comment: Numerous commenters
student with a disability. Therefore, we category of developmental delay. requested defining or eliminating the
do not believe it is appropriate to Discussion: Section 300.8(b) states term ‘‘socially maladjusted’’ in the
change the definition as requested by that the use of the developmental delay definition of emotional disturbance
the commenters. The words ‘‘child’’ and category for a child with a disability stating that there is no accepted
‘‘student’’ are used throughout the Act aged three through nine, or any subset definition of the term, and no valid or
and we generally have used the word of that age range, must be made in reliable instruments or methods to
‘‘child’’ or ‘‘children,’’ except when accordance with § 300.111(b). Section identify children who are, or are not,
referring to services and activities for 300.111(b) gives States the option of ‘‘socially maladjusted.’’ Some
older students (e.g., transition services, adopting a definition of developmental commenters stated that children who
postsecondary goals). delay, but does not require an LEA to need special education and related
Changes: None. adopt and use the term. However, if an services have been denied these
Comment: Some commenters LEA uses the category of developmental services, or have been inappropriately
supported § 300.8(a)(2), which states delay, the LEA must conform to both the identified under other disability
that if a child needs only a related State’s definition of the term and the age categories and received inappropriate
service and not special education, the range that has been adopted by the services because the definition of
child is not a child with a disability State. If a State does not adopt the emotional disturbance excludes
under the Act. Another commenter category of developmental delay, an children who are socially maladjusted.
recommended a single standard for the LEA may not use that category as the One commenter stated that using the
provision of a related service as special basis for establishing a child’s eligibility term ‘‘socially maladjusted’’ contributes
education, rather than allowing States to for special education and related to the negative image of children with
determine whether a related service is services. mental illness and does a disservice to
special education. Based on the comments, it appears children with mental illness and those
Discussion: Section 300.8(a)(2)(i) that § 300.8(b) has been misinterpreted who seek to understand mental illness.
states that if a child has one of the as stating that LEAs are allowed to One commenter stated that emotional
disabilities listed in § 300.8(a)(1), but establish the age range for defining disturbance is one of the most misused
only needs a related service, the child developmental delay independent of the and misunderstood disability categories
is not a child with a disability under the State. We believe it is important to and is often improperly used to protect
Act. However, § 300.8(a)(2)(ii) provides avoid such confusion and, therefore, dangerous and aggressive children who
that, if a State considers a particular will modify § 300.8(b) to clarify the violate the rights of others. The
service that could be encompassed by provision. commenter stated that the definition of
the definition of related services also to Changes: For clarity, we have emotional disturbance is vague and
be special education, then the child removed the phrase, ‘‘at the discretion offers few objective criteria to
would be determined to be a child with of the State and LEA in accordance with differentiate an emotional disability
a disability under the Act. We believe it § 300.111(b)’’ and replaced it with from ordinary development, and
is important that States have the ‘‘subject to the conditions in requires the exclusion of conditions in
flexibility to determine whether, § 300.111(b).’’ which the child has the ability to
consistent with the definition of the control his or her behavior, but chooses
term special education in section Deafness (§ 300.8(c)(3)) to violate social norms.
602(29) of the Act and new § 300.39 Comment: One commenter stated that One commenter recommended adding

(proposed § 300.38), such a service children who are hard of hearing are autism to the list of factors in
should be regarded as special education often denied special education and § 300.8(c)(4)(i)(A) that must be ruled out
and to identify a child who needs that related services because the definition before making an eligibility
service as a child with a disability. of deafness includes the phrase, determination based on emotional
States are in the best position to ‘‘adversely affects a child’s educational disturbance. The commenter stated that



many children with autism are We do not believe the definition of misclassified as emotionally disturbed.
inappropriately placed in alternative mental retardation needs to be changed A number of commenters stated that
educational programs designed for because it is defined broadly enough in Tourette syndrome is a neurological
children with serious emotional and § 300.8(c)(6) to include a child’s disorder and not an emotional disorder,
behavioral problems. functional limitations in specific life yet children with Tourette syndrome
Discussion: Historically, it has been areas, as requested by the commenter. continue to be viewed as having a
very difficult for the field to come to There is nothing in the Act or these behavioral or conduct disorder and,
consensus on the definition of regulations that would prevent a State therefore, do not receive appropriate
emotional disturbance, which has from including ‘‘functional limitations special education and related services.
remained unchanged since 1977. On in specific life areas’’ in a State’s Discussion: The list of acute or
February 10, 1993, the Department definition of mental retardation, as long chronic health conditions in the
published a ‘‘Notice of Inquiry’’ in the as the State’s definition is consistent definition of other health impairment is
Federal Register (58 FR 7938) soliciting with these regulations. not exhaustive, but rather provides
comments on the existing definition of Changes: None. examples of problems that children
serious emotional disturbance. The have that could make them eligible for
Multiple Disabilities (§ 300.8(c)(7)) special education and related services
comments received in response to the
notice of inquiry expressed a wide range Comment: One commenter asked why under the category of other health
of opinions and no consensus on the the category of multiple disabilities is impairment. We decline to include
definition was reached. Given the lack included in the regulations when it is dysphagia, FAS, bipolar disorders, and
of consensus and the fact that Congress not in the Act. other organic neurological disorders in
did not make any changes that required Discussion: The definition of multiple the definition of other health
changing the definition, the Department disabilities has been in the regulations impairment because these conditions
recommended that the definition of since 1977 and does not expand are commonly understood to be health
emotional disturbance remain eligibility beyond what is provided for impairments. However, we do believe
unchanged. We reviewed the Act and in the Act. The definition helps ensure that Tourette syndrome is commonly
the comments received in response to that children with more than one misunderstood to be a behavioral or
the NPRM and have come to the same disability are not counted more than emotional condition, rather than a
conclusion. Therefore, we decline to once for the annual report of children neurological condition. Therefore,
make any changes to the definition of served because States do not have to including Tourette syndrome in the
emotional disturbance. decide among two or more disability definition of other health impairment
categories in which to count a child may help correct the misperception of
Changes: None.
with multiple disabilities. Tourette syndrome as a behavioral or
Comment: One commenter suggested
Changes: None. conduct disorder and prevent the
that the regulations include a process to
misdiagnosis of their needs.
identify children who are at risk for Orthopedic Impairment (§ 300.8(c)(8)) Changes: We have added Tourette
having an emotional disturbance. Comment: One commenter requested syndrome as an example of an acute or
Discussion: We decline to include a that the examples of congenital chronic health problem in
process to identify children who are at anomalies in the definition of § 300.8(c)(9)(i).
risk for having an emotional orthopedic impairment in current Comment: A few commenters
disturbance. A child who is at risk for § 300.7(c)(8) be retained. expressed concern about determining a
having any disability under the Act is Discussion: The examples of child’s eligibility for special education
not considered a child with a disability congenital anomalies in current services under the category of other
under § 300.8 and section 602(3) of the § 300.7(c)(8) are outdated and health impairment based on conditions
Act and, therefore, is not eligible for unnecessary to understand the meaning that are not medically determined
services under the Act. of orthopedic impairment. We, health problems, such as ‘‘central
Changes: None. therefore, decline to include the auditory processing disorders’’ or
Mental Retardation (§ 300.8(c)(6)) examples in § 300.8(c)(8). ‘‘sensory integration disorders.’’ One
Changes: None. commenter recommended that the
Comment: One commenter suggested regulations clarify that ‘‘chronic or acute
using the term ‘‘intellectual disability’’ Other Health Impairment (§ 300.8(c)(9)) health problems’’ refer to health
in place of ‘‘mental retardation’’ because Comment: We received a significant problems that are universally
‘‘intellectual disability’’ is a more number of comments requesting that we recognized by the medical profession.
acceptable term. The commenter also include other examples of specific acute Discussion: We cannot make the
stated that the definition of mental or chronic health conditions in the change requested by the commenters.
retardation is outdated, and should, definition of other health impairment. A The determination of whether a child is
instead, address a child’s functional few commenters recommended eligible to receive special education and
limitations in specific life areas. including children with dysphagia related services is made by a team of
Discussion: Section 602(3)(A) of the because these children have a qualified professionals and the parent of
Act refers to a ‘‘child with mental swallowing and feeding disorder that the child, consistent with
retardation,’’ not a ‘‘child with affects a child’s vitality and alertness § 300.306(a)(1) and section 614(b)(4) of
intellectual disabilities,’’ and we do not due to limitations in nutritional intake. the Act. The team of qualified
see a compelling reason to change the Other commenters recommended professionals and the parent of the child
term. However, States are free to use a including FAS, bipolar disorders, and must base their decision on careful
different term to refer to a child with organic neurological disorders. consideration of information from a

mental retardation, as long as all Numerous commenters requested variety of sources, consistent with
children who would be eligible for including Tourette syndrome disorders § 300.306(c). There is nothing in the Act
special education and related services in the definition of other health that requires the team of qualified
under the Federal definition of mental impairment because children with professionals and the parent to consider
retardation receive FAPE. Tourette syndrome are frequently only health problems that are



universally recognized by the medical disability in §§ 300.307 through Consent (§ 300.9)
profession, as requested by the 300.311. We do not believe it is Comment: Numerous commenters
commenters. Likewise, there is nothing necessary to repeat these procedures in noted that the regulations include the
in the Act that would prevent a State the definition of specific learning terms ‘‘consent,’’ ‘‘informed consent,’’
from requiring a medical evaluation for disability. ‘‘agree,’’ and ‘‘agree in writing’’ and
eligibility under other health Section 602(30) of the Act refers to a asked whether all the terms have the
impairment, provided the medical ‘‘disorder’’ in one or more of the basic same meaning.
evaluation is conducted at no cost to the psychological processes and not to a Discussion: These terms are used
parent. ‘‘disability’’ in one or more of the basic throughout the regulations and are
Changes: None. psychological processes. We believe it
Comment: One commenter stated that consistent with their use in the Act. The
would be inconsistent with the Act to definition of consent requires a parent
the category of other health impairment change ‘‘disorder’’ to ‘‘disability,’’ as
is one of the most rapidly expanding to be fully informed of all information
recommended by one commenter. We relevant to the activity for which
eligibility categories because the do not believe that the terms
definition is vague, confusing, and consent is sought. The definition also
‘‘developmental aphasia’’ and ‘‘minimal requires a parent to agree in writing to
redundant. The commenter noted that brain dysfunction’’ should be removed
the definition of other health an activity for which consent is sought.
from the definition. Although the terms Therefore, whenever consent is used in
impairment includes terms such as may not be as commonly used as
‘‘alertness’’ and ‘‘vitality,’’ which are these regulations, it means that the
‘‘specific learning disability,’’ the terms consent is both informed and in writing.
difficult to measure objectively. continue to be used and we see no harm
Discussion: We believe that the The meaning of the terms ‘‘agree’’ or
in retaining them in the definition. We ‘‘agreement’’ is not the same as consent.
definition of other health impairment is do not agree that the phrase ‘‘imperfect
generally understood and that the group ‘‘Agree’’ or ‘‘agreement’’ refers to an
ability’’ implies that a child has a minor understanding between the parent and
of qualified professionals and the parent problem and, therefore, decline to
responsible for determining whether a the public agency about a particular
change this phrase in the definition of question or issue, which may be in
child is a child with a disability are able specific learning disability.
to use the criteria in the definition and writing, depending on the context.
Changes: None. Changes: None.
appropriately identify children who Comment: We received several
need special education and related Comment: A few commenters
requests to revise the definition of recommended adding a requirement to
services. Therefore, we decline to specific learning disability to include
change the definition. the definition of consent that a parent be
specific disabilities or disorders that are fully informed of the reasons why a
Changes: None.
often associated with specific learning public agency selected one activity over
Specific Learning Disability disabilities, including Aspergers another.
(§ 300.8(c)(10)) syndrome, FAS, auditory processing Discussion: We do not believe it is
Comment: One commenter disorders, and nonverbal learning necessary to include the additional
recommended changing the definition disabilities. requirement recommended by the
of specific learning disability to refer to Discussion: Children with many types commenter. The definition of consent
a child’s response to scientific, research- of disabilities or disorders may also already requires that the parent be fully
based intervention as part of the have a specific learning disability. It is informed of all the information relevant
procedures for evaluating children with not practical or feasible to include all to the activity for which consent is
disabilities, consistent with the different disabilities that are often sought.
§ 300.307(a). A few commenters associated with a specific learning Changes: None.
recommended aligning the definition of disability. Therefore, we decline to add Comment: A few commenters
specific learning disability with the these specific disorders or disabilities to requested that the Department address
requirements for determining eligibility the definition of specific learning situations in which a child is receiving
in § 300.309. disability. special education services and the
One commenter recommended using Changes: None. child’s parent wants to discontinue
the word ‘‘disability,’’ instead of Comment: A few commenters services because they believe the child
‘‘disorder,’’ and referring to specific suggested clarifying the word ‘‘cultural’’ no longer needs special education
learning disabilities as a ‘‘disability in in § 300.8(c)(10)(ii) to clarify that services. A few commenters stated that
one or more of the basic psychological cultural disadvantage or language public agencies should not be allowed
processes.’’ A few commenters stated cannot be the basis for determining that to use the procedural safeguards to
that the terms ‘‘developmental aphasia’’ a child has a disability. continue to provide special education
and ‘‘minimal brain dysfunction’’ are Discussion: We believe the term and related services to a child whose
antiquated and should be removed from ‘‘cultural’’ is generally understood and parent withdraws consent for the
the definition. A few commenters do not see a need for further continued provision of special
questioned using ‘‘imperfect ability’’ in clarification. We also do not believe that education and related services.
the definition because it implies that a it is necessary to clarify that language Discussion: The Department intends
child with minor problems in listening, cannot be the basis for determining to propose regulations to permit parents
thinking, speaking, reading, writing, whether a child has a specific learning who previously consented to the
spelling, or calculating math could be disability. Section 300.306(b)(1)(iii), initiation of special education services,
determined to have a specific learning consistent with section 614(b)(5)(C) of to withdraw their consent for their child
disability. the Act, clearly states that limited to receive, or continue to receive,

Discussion: The definition of specific English proficiency cannot be the basis special education services. Because this
learning disability is consistent with the for determining a child to be a child is a change from the Department’s
procedures for evaluating and with a disability under any of the longstanding policies and was not
determining the eligibility of children disability categories in § 300.8. proposed in the NPRM, we will provide
suspected of having a specific learning Changes: None. the public the opportunity to comment



on this proposed change in a separate government. The Department’s Educational Service Agency (§ 300.12)
notice of proposed rulemaking. nonregulatory guidance on ‘‘Highly
Changes: None. Comment: One commenter questioned
Qualified Teachers, Improving Teacher
the accuracy of the citation, 20 U.S.C.
Core Academic Subjects (§ 300.10) Quality State Grants’’ (August 3, 2005)
1401(5), as the basis for including
explains that if a State issues a
Comment: A few commenters ‘‘intermediate educational unit’’ in the
composite social studies license, the
suggested adding the definition of core definition of educational service agency.
State must determine in which of the
academic subjects from the ESEA to the four areas (history, geography, Discussion: The definition of
regulations and including any economics, and civics and government), educational service agency is based on
additional subjects that are considered if any, a teacher is qualified. (see the provisions in section 602(5) of the
core academic subjects for children in question A–20 in the Department’s Act. The definition was added by the
the State in which the child resides. nonregulatory guidance available at Amendments to the Individuals with
Discussion: The definition of core http://www.ed.gov/programs/ Disabilities Education Act in 1997, Pub.
academic subjects in § 300.10, teacherqual/legislation.html#guidance). L. 105–17, to replace the definition of
consistent with section 602(4) of the Changes: None. ‘‘intermediate educational unit’’ (IEU) in
Act, is the same as the definition in section 602(23) of the Act, as in effect
section 9101 of the ESEA. We believe it Day; Business Day; School Day prior to June 4, 1997. Educational
is unnecessary to change the definition (§ 300.11) service agency does not exclude entities
to include additional subjects that Comment: A few commenters stated that were considered IEUs under prior
particular States consider to be core that a partial day should be considered law. To avoid any confusion about the
academic subjects. However, there is a school day only if there is a safety use of this term, the definition clarifies
nothing in the Act or these regulations reason for a shortened day, such as a that educational service agency includes
that would prevent a State from two hour delay due to snow, and that entities that meet the definition of IEU
including additional subjects in its regularly scheduled half days should in section 602(23) of the Act as in effect
definition of ‘‘core academic subjects.’’ not be considered a school day for prior to June 4, 1997. We believe the
Changes: None. funding purposes. One commenter citation for IEU is consistent with the
Comment: A few commenters Act.
stated that many schools count the time
requested clarifying the definition of Changes: None.
on the bus, recess, lunch period, and
core academic subjects for a secondary Comment: One commenter requested
passing periods as part of a school day
school student when the student is that the regulations clarify that the
for children with disabilities, and
functioning significantly below the reference to the definition of
recommended that the regulations
secondary level. educational service agency in the
Discussion: The definition of core clarify that non-instructional time does
not count against a child’s instructional definition of local educational agency or
academic subjects does not vary for
day unless such times are counted LEA in § 300.28 means that educational
secondary students who are functioning
against the instructional day of all service agencies (ESAs) and Bureau of
significantly below grade level. The Act
children. One commenter recommended Indian Affairs (BIA) schools have full
focuses on high academic standards and
the definition of school day include responsibility and rights as LEAs under
clear performance goals for children
days on which extended school year all provisions of the Act, including
with disabilities that are consistent with
(ESY) services are provided to children § 300.226 (early intervening services).
the standards and expectations for all
children. As required in § 300.320(a), with disabilities. Discussion: With respect to ESAs, we
each child’s IEP must include annual Discussion: The length of the school believe that the provisions in § 300.12
goals to enable the child to be involved day and the number of school days do and § 300.28 clarify that ESAs have full
in and make progress in the general not affect the formula used to allocate responsibility and rights as LEAs,
education curriculum, and a statement Part B funds to States. School day, as including the provisions in § 300.226
of the special education and related defined in § 300.11(c)(1), is any day or related to early intervening services.
services and supplementary aids and partial day that children are in However, the commenter’s request
services to enable the child to be attendance at school for instructional regarding BIA schools is inconsistent
involved and make progress in the purposes. If children attend school for with the Act. The definition of local
general education curriculum. It would, only part of a school day and are educational agency in § 300.28 and
therefore, be inconsistent and contrary released early (e.g., on the last day section 602(19) of the Act, including the
to the purposes of the Act for the before summer vacation), that day provision on BIA funded schools in
definition of core academic subjects to would be considered to be a school day. section 602(19)(C) of the Act and in
be different for students who are Section 300.11(c)(2) already defines § 300.28(c), states that the term ‘‘LEA’’
functioning below grade level. school day as having the same meaning includes an elementary school or
Changes: None. for all children, including children with secondary school funded by the BIA,
Comment: One commenter asked that and without disabilities. Therefore, it is ‘‘but only to the extent that the
the core content area of ‘‘science’’ apply unnecessary for the regulations to inclusion makes the school eligible for
to social sciences, as well as natural clarify that non-instructional time (e.g., programs for which specific eligibility is
sciences. recess, lunch) is not counted as not provided to the school in another
Discussion: We cannot change the instructional time for a child with a provision of law and the school does not
regulations in the manner recommended disability unless such times are counted have a student population that is
by the commenter because the ESEA as instructional time for all children. smaller than the student population of
does not identify ‘‘social sciences’’ as a Consistent with this requirement, days the LEA receiving assistance under the

core academic subject. Neither does it on which ESY services are provided Act with the smallest student
identify ‘‘social studies’’ as a core cannot be counted as a school day population.’’ Therefore, BIA schools do
academic subject. Instead, it identifies because ESY services are provided only not have full responsibility and rights as
specific core academic areas: History, to children with disabilities. LEAs under all provisions of the Act.
geography, economics, and civics and Changes: None. Changes: None.



Excess Costs (§ 300.16) language in section 602(9) of the Act. requirements set forth in the State’s
Comment: One commenter stated that We believe it is unnecessary to change public charter school law; and
the definition of FAPE in the manner (ii) The teacher has not had
an example on calculating excess costs
recommended by the commenters certification or licensure requirements
would be a helpful addition to the
because providing services in waived on an emergency, temporary, or
regulations.
Discussion: We agree with the conformity with a child’s IEP in the LRE provisional basis;
is implicit in the definition of FAPE. (B) When used with respect to—
commenter and will include an example (i) An elementary school teacher who
of calculating excess costs in Appendix Consistent with § 300.17(b), FAPE
means that special education and is new to the profession, means that the
A to Part 300—Excess Costs teacher—
Calculation. In developing the example, related services must meet the standards
of the SEA and the requirements in Part (I) Holds at least a bachelor’s degree;
we noted that while the requirements in and
§ 300.202 exclude debt service and B of the Act, which include the LRE
requirements in §§ 300.114 through (II) Has demonstrated, by passing a
capital outlay in the calculation of rigorous State test, subject knowledge
excess costs, the definition of excess 300.118. Additionally, § 300.17(d)
provides that FAPE means that special and teaching skills in reading, writing,
costs in § 300.16 does not mention this mathematics, and other areas of the
exclusion. We believe it is important to education and related services are
provided in conformity with an IEP that basic elementary school curriculum
include this exclusion in the definition (which may consist of passing a State-
of excess costs and will add language in meets the requirements in section
614(d) of the Act. Consistent with required certification or licensing test or
§ 300.16 to make this clear and tests in reading, writing, mathematics,
consistent with the requirements in section 614(d)(1)(i)(V) of the Act, the
IEP must include a statement of the and other areas of the basic elementary
§ 300.202. school curriculum); or
Changes: We have revised § 300.16(b) extent, if any, to which the child will
not participate with nondisabled (ii) A middle or secondary school
to clarify that the calculation of excess teacher who is new to the profession,
costs may not include capital outlay or children in the regular education class.
Changes: None. means that the teacher holds at least a
debt service. We have also added bachelor’s degree and has demonstrated
Appendix A to Part 300—Excess Costs Comment: One commenter
recommended removing ‘‘including the a high level of competency in each of
Calculation that provides an example the academic subjects in which the
and an explanation of how to calculate requirements of this part’’ in § 300.17(b)
because this phrase is not included in teacher teaches by—
excess costs under the Act. A reference (I) Passing a rigorous State academic
to Appendix A has been added in the Act, and makes every provision in
subject test in each of the academic
§ 300.16(b). Part B of the Act a component of FAPE.
subjects in which the teacher teaches
Discussion: Section 300.17 is the same (which may consist of a passing level of
Free Appropriate Public Education or as current § 300.13, which has been in
FAPE (§ 300.17) performance on a State-required
the regulations since 1977. We do not certification or licensing test or tests in
Comment: One commenter stated that believe that § 300.17 makes every each of the academic subjects in which
the requirements in §§ 300.103 through provision of this part applicable to the teacher teaches); or
300.112 (Other FAPE Requirements) FAPE. (II) Successful completion, in each of
should be included in the definition of Changes: None. the academic subjects in which the
FAPE. Highly Qualified Special Education teacher teaches, of an academic major,
Discussion: The other FAPE Teachers (§ 300.18) a graduate degree, coursework
requirements in §§ 300.103 through equivalent to an undergraduate
300.112 are included in subpart B of Comment: One commenter requested academic major, or advanced
these regulations, rather than in the including the definition of ‘‘highly certification or credentialing; and
definition of FAPE in subpart A, to be qualified teacher,’’ as defined in the (C) When used with respect to an
consistent with the order and structure ESEA, in the regulations. elementary, middle, or secondary school
of section 612 of the Act, which Discussion: The ESEA defines ‘‘highly teacher who is not new to the
includes all the statutory requirements qualified’’ with regard to any public profession, means that the teacher holds
related to State eligibility. The order and elementary or secondary school teacher. at least a bachelor’s degree and—
structure of these regulations follow the For the reasons set forth earlier in this (i) Has met the applicable standard in
general order and structure of the notice, we are not adding definitions clause (i) or (ii) of subparagraph (B),
provisions in the Act in order to be from other statutes to these regulations. which includes an option for a test; or
helpful to parents, State and LEA However, we will include the current (ii) Demonstrates competence in all
personnel, and the public both in definition here for reference. the academic subjects in which the
reading the regulations, and in finding The term ‘‘highly qualified’’— teacher teaches based on a high
the direct link between a given statutory (A) When used with respect to any objective uniform State standard of
requirement and the regulation related public elementary school or secondary evaluation that—
to that requirement. school teacher teaching in a State, (I) Is set by the State for both grade
Changes: None. means that— appropriate academic subject matter
Comment: Some commenters stated (i) The teacher has obtained full State knowledge and teaching skills;
that the definition of FAPE should certification as a teacher (including (II) Is aligned with challenging State
include special education services that certification obtained through academic content and student academic
are provided in conformity with a alternative routes to certification) or achievement standards and developed
child’s IEP in the least restrictive passed the State teacher licensing in consultation with core content

environment (LRE), consistent with the examination, and holds a license to specialists, teachers, principals, and
standards of the State educational teach in such State, except that when school administrators;
agency (SEA). used with respect to any teacher (III) Provides objective, coherent
Discussion: The definition of FAPE in teaching in a public charter school, the information about the teacher’s
§ 300.17 accurately reflects the specific term means that the teacher meets the attainment of core content knowledge in



the academic subjects in which a to the extent addressed in § 300.18(c) required to serve children with
teacher teaches; and (d), special education teachers who disabilities.
(IV) Is applied uniformly to all teach core academic subjects must, in Changes: None.
teachers in the same academic subject addition to meeting these requirements, Comment: One commenter
and the same grade level throughout the demonstrate subject-matter competency recommended that the regulations
State; in each of the core academic subjects in include standards for highly qualified
(V) Takes into consideration, but not which the teacher teaches. special education paraprofessionals,
be based primarily on, the time the States are responsible for establishing similar to the requirements under the
teacher has been teaching in the certification and licensing standards for ESEA.
academic subject; special education teachers. Each State Discussion: Section § 300.156(b)
(VI) Is made available to the public uses its own standards and procedures specifically requires the qualifications
upon request; and to determine whether teachers who for paraprofessionals to be consistent
(VII) May involve multiple, objective teach within that State meet its with any State-approved or State-
measures of teacher competency. recognized certification, licensing,
certification and licensing requirements.
Changes: None. registration, or other comparable
Comment: A few commenters Teacher qualifications and standards are
consistent from State to State to the requirements that apply to the
recommended defining the term professional discipline in which those
‘‘special education teacher.’’ Other extent that States work together to
establish consistent criteria and personnel are providing special
commenters recommended that States education or related services.
define highly qualified special reciprocity agreements. It is not the role
In addition, the ESEA requires that
education teachers and providers. One of the Federal government to regulate
paraprofessionals, including special
commenter stated that the regulations teacher certification and licensure.
education paraprofessionals who assist
should define the role of the special Changes: None. in instruction in title I-funded programs,
education teacher as supplementing and Comment: One commenter stated that have at least an associate’s degree, have
supporting the regular education teacher LEAs must train special education completed at least two years of college,
who is responsible for teaching course teachers because most special education or meet a rigorous standard of quality
content. teachers are not highly qualified upon and demonstrate, through a formal State
One commenter requested that the graduation from a college program. A or local assessment, knowledge of, and
regulations clarify that a special few commenters recommended that the the ability to assist in instruction in
education teacher who is certified as a regulations encourage SEAs to require reading, writing, and mathematics,
regular education teacher with an coursework for both special education reading readiness, writing readiness, or
endorsement in special education meets and general education teachers in the mathematics readiness, as appropriate.
the requirements for a highly qualified areas of behavior management and Paraprofessionals in title I schools do
special education teacher. Another classroom management. One commenter not need to meet these requirements if
commenter recommended changing the recommended that the requirements for their role does not involve instructional
definition of a highly qualified special special education teachers include support, such as special education
education teacher so that States cannot competencies in reading instruction and paraprofessionals who solely provide
provide a single certification for all in properly modifying and personal care services. For more
areas of special education. One accommodating instruction. Another information on the ESEA requirements
commenter requested clarification commenter supported training in for paraprofessionals, see 34 CFR 200.58
regarding the highly qualified special special education and related services and section 1119 of the ESEA, and the
education teacher standards for special for general education teachers. One Department’s nonregulatory guidance,
education teachers with single State commenter expressed support for Title I Paraprofessionals (March 1,
endorsements in the area of special collaboration between special education 2004), which can be found on the
education. A few commenters and regular education teachers. Some Department’s Web site at: http://
recommended clarifying that when a commenters recommended requiring a www.ed.gov/policy/elsec/guid/
State determines that a teacher is fully highly qualified general education paraguidance.pdf.
certified in special education, this teacher teaching in a self-contained We believe these requirements are
means that the teacher is knowledgeable special education classroom to work in sufficient to ensure that children with
and skilled in the special education area close collaboration with the special disabilities receive services from
in which certification is received. One education teacher assigned to those paraprofessionals who are appropriately
commenter recommended that teacher children. Another commenter stated and adequately trained. Therefore, we
qualifications and standards be that the definition of a highly qualified decline to include additional standards
consistent from State to State. special education teacher will be for paraprofessionals.
Discussion: Section 300.18(b), meaningless if the training for teachers Changes: None.
consistent with section 602(10)(B) of the is not consistent across States. Comment: Numerous commenters
Act, provides that a highly qualified Discussion: Personnel training needs requested clarification as to whether
special education teacher must have full vary across States and it would be early childhood and preschool special
State special education certification inappropriate for the regulations to education teachers must meet the highly
(including certification obtained require training on specific topics. qualified special education teacher
through alternative routes to Consistent with § 300.156 and section standards. Several commenters stated
certification) or have passed the State 612(a)(14) of the Act, each State is that requiring early childhood and
special education teacher licensing responsible for ensuring that teachers, preschool special education teachers to
examination and hold a license to teach related services personnel, meet the highly qualified special

in the State; have not had special paraprofessionals, and other personnel education teacher standards would
education certification or licensure serving children with disabilities under exceed statutory authority and
requirements waived on an emergency, Part B of the Act are appropriately and exacerbate the shortage of special
temporary, or provisional basis; and adequately prepared and trained and education teachers. A few commenters
hold at least a bachelor’s degree. Except have the content knowledge and skills supported allowing States to decide



whether the highly qualified special The highly qualified special most special education teachers will
education teacher requirements apply to education teacher requirements apply to need to hold more than one license or
preschool teachers. all public school special education certification to meet the highly qualified
Discussion: The highly qualified teachers. There are no separate or special education teacher requirements
special education teacher requirements special provisions for special education and that the time and expense needed
apply to all public elementary school teachers who teach in specialized to obtain the additional licenses or
and secondary school special education schools, for teachers of children who are certifications is unreasonable. One
teachers, including early childhood or blind and visually impaired, or for commenter stated that schools will have
preschool teachers if a State includes teachers of children with other low to hire two or three teachers for every
the early childhood or preschool incidence disabilities and we do not one special education teacher, thereby
programs as part of its elementary believe there should be because these increasing education costs.
school and secondary school system. If children should receive the same high One commenter expressed concern
the early childhood or preschool quality instruction from teachers who about losing special education teachers
program is not a part of a State’s public meet the same high standards as all who teach multiple subjects in
elementary school and secondary school other teachers and who have the subject alternative education and homebound
system, the highly qualified special matter knowledge and teaching skills programs because they will not meet the
education teacher requirements do not necessary to assist these children to highly qualified special education
apply. achieve to high academic standards. teacher requirements. One commenter
Changes: None. Changes: None. expressed concern that the requirements
Comment: One commenter requested Comment: One commenter requested set a higher standard for teachers in self-
clarification regarding the scope of the clarification on how the highly qualified contained classrooms. Another
highly qualified special education special education teacher requirements commenter stated that requiring special
teacher requirements for instructors impact teachers who teach children of education teachers in secondary schools
who teach core academic subjects in different ages. A few commenters to be experts in all subjects is a burden
specialized schools, such as schools for recommended adding a provision for that elementary teachers do not have.
the blind, and recommended that there special education teachers who teach at Discussion: The Department
be different qualifications for instructors multiple age levels, similar to the understands the concerns of the
who provide orientation and mobility special education teacher who teaches commenters. However, the clear
instruction or travel training for multiple subjects. intention of the Act is to ensure that all
children who are blind or visually Discussion: The Act does not include children with disabilities have teachers
impaired. any special requirements for special with the subject-matter knowledge and
One commenter requested adding education teachers who teach at teaching skills necessary to assist
travel instructors to the list of special multiple age levels. Teachers who teach children with disabilities achieve to
educators who need to be highly at multiple age levels must meet the high academic standards.
qualified. Some commenters same requirements as all other special To help States and districts meet
recommended adding language to education teachers to be considered these standards, section 651 of the Act
include certified and licensed special highly qualified. The clear intent of the authorizes State Personnel Development
education teachers of children with low Act is to ensure that all children with grants to help States reform and
incidence disabilities as highly qualified disabilities have teachers with the improve their systems for personnel
special education teachers. A few subject matter knowledge and teaching preparation and professional
commenters requested that the skills necessary to assist children with development in early intervention,
requirements for teachers who teach disabilities achieve to high academic educational, and transition services in
children with visual impairments standards. Therefore, we do not believe order to improve results for children
include competencies in teaching there should be different requirements with disabilities. In addition, section
Braille, using assistive technology for teachers who teach at multiple age 662 of the Act authorizes funding for
devices, and conducting assessments, levels. institutions of higher education, LEAs,
rather than competencies in core subject Changes: None. and other eligible local entities to
areas. Some commenters requested more Comment: One commenter improve or develop new training
flexibility in setting the standards for recommended including specific criteria programs for teachers and other
teachers of children with visual defining a highly qualified special personnel serving children with
impairments and teachers of children education literacy teacher. disabilities.
with other low incidence disabilities. Discussion: Under § 300.18(a), a Changes: None.
One commenter requested clarification special education literacy teacher who Comment: One commenter requested
regarding the requirements for teachers is responsible for teaching reading must further clarification regarding the
of children with low incidence meet the ESEA highly qualified teacher requirements for secondary special
disabilities. requirements including competency in education teachers to be highly
Discussion: Consistent with § 300.156 reading, as well as the highly qualified qualified in the core subjects they teach,
and section 612(a)(14) of the Act, it is special education teacher requirements. as well as certified in special education.
the responsibility of each State to ensure We do not believe that further Discussion: Consistent with
that teachers and other personnel regulation is needed as the Act leaves § 300.18(a) and (b) and section
serving children with disabilities under teacher certification and licensing 602(10)(A) and (B) of the Act, secondary
Part B of the Act are appropriately and requirements to States. special education teachers who teach
adequately prepared and trained and Changes: None. core academic subjects must meet the
have the content knowledge and skills Comment: Many commenters highly qualified teacher standards

to serve children with disabilities, expressed concern that the highly established in the ESEA (which
including teachers of children with qualified special education teacher includes competency in each core
visual impairments and teachers of standards will make it more difficult to academic subject the teacher teaches)
children with other low incidence recruit and retain special education and the highly qualified special
disabilities. teachers. Some commenters stated that education teacher requirements in



§ 300.18(b) and section 602(10)(B) of the Discussion: We cannot make the Comment: One commenter stated that
Act. changes suggested by the commenter personnel working in charter schools
Consistent with § 300.18(c) and because the Act does not require general should meet the same requirements as
section 602(10)(C) of the Act, a education teachers who teach children all other public school personnel.
secondary special education teacher with disabilities to be certified in Several commenters expressed concern
who teaches core academic subjects special education. Further, the regarding the exemption of charter
exclusively to children assessed against legislative history of the Act would not school teachers from the highly
alternate achievement standards can support these changes. Note 21 in the qualified special education teacher
satisfy the highly qualified special U.S. House of Representatives requirements. One commenter stated
education teacher requirements by Conference Report No. 108–779 (Conf. that while a special education teacher in
meeting the requirements for a highly Rpt.), p. 169, clarifies that general a charter school does not have to be
qualified elementary teacher under the education teachers who are highly licensed or certified by the State if the
ESEA, or in the case of instruction qualified in particular subjects and who State’s charter school law does not
above the elementary level, have subject teach children with disabilities in those require such licensure or certification,
matter knowledge appropriate to the subjects are not required to have full all other elements of the highly
level of instruction being provided, as State certification as a special education qualified special education teacher
determined by the State, to effectively teacher. For example, a reading requirements should apply to charter
teach to those standards. specialist who is highly qualified in school teachers, including demonstrated
Changes: None. reading instruction, but who is not competency in core academic subject
Comment: One commenter expressed certified as a special education teacher, areas.
concern that the highly qualified teacher would not be prohibited from providing Discussion: The certification
requirements will drive secondary reading instruction to children with requirements for charter school teachers
teachers who teach children with disabilities. are established in a State’s public
emotional and behavioral disorders out charter school law, and may differ from
The Act focuses on ensuring that
of the field and requested that the the requirements for full State
children with disabilities achieve to
requirements be changed to require certification for teachers in other public
high academic standards and have
special education certification in one schools. The Department does not have
access to the same curriculum as other
core area, plus a reasonable amount of the authority to change State charter
children. In order to achieve this goal,
training in other areas. Another school laws to require charter school
teachers who teach core academic
commenter recommended permitting teachers to meet the same requirements
subjects to children with disabilities
special education teachers of core as all other public school teachers.
academic subjects at the elementary must be competent in the core academic
In addition to the certification
level to be highly qualified if they major areas in which they teach. This is true
requirements established in a State’s
in elementary education and have for general education teachers, as well
public charter school law, if any, section
coursework in math, language arts, and as special education teachers.
602(10) of the Act requires charter
science. One commenter recommended Changes: None. school special education teachers to
that any special education teacher Comment: Some commenters hold at least a bachelor’s degree and, if
certified in a State prior to 2004 be expressed concern that LEAs may they are teaching core academic
exempt from having to meet the highly reduce placement options for children subjects, demonstrate competency in the
qualified special education teacher with disabilities because of the shortage core academic areas they teach. We will
requirements. of highly qualified teachers. A few add language in § 300.18(b) to clarify
Discussion: The definition of a highly commenters recommended requiring that special education teachers in public
qualified special education teacher in each State to develop and implement charter schools must meet the
§ 300.18 accurately reflects the policies to ensure that teachers meet the certification or licensing requirements,
requirements in section 602(10) of the highly qualified special education if any, established by a State’s public
Act. To change the regulations in the teacher requirements, while maintaining charter school law.
manner recommended by the a full continuum of services and Changes: We have added the words
commenters would be inconsistent with alternative placements to respond to the ‘‘if any’’ in § 300.18(b)(1)(i) to clarify
the Act and the Act’s clear intent of needs of children with disabilities. that special education teachers in public
ensuring that all children with Discussion: It would be inconsistent charter schools must meet any
disabilities have teachers with the with the LRE requirements in section certification or licensing requirements
subject matter knowledge and teaching 612(a)(5) of the Act for a public agency established by a State’s public charter
skills necessary to assist children with to restrict the placement options for school law.
disabilities achieve to high academic children with disabilities. Section Comment: One commenter stated that
standards. Therefore, we decline to 300.115, consistent with section the regulations use the terms ‘‘highly
change the requirements in § 300.18. 612(a)(5) of the Act, requires each qualified’’ and ‘‘fully certified’’ in a
Changes: None. public agency to ensure that a manner that implies they are
Comment: One commenter stated that continuum of alternative placements is synonymous, and recommended that
there is a double standard in the highly available to meet the needs of children the regulations maintain the distinction
qualified teacher requirements because with disabilities. between the two terms.
general education teachers are not The additional requirements Discussion: Full State certification is
required to be certified in special requested by the commenter are not determined under State law and policy
education even though they teach necessary because States already must and means that a teacher has fully met
children with disabilities. Another develop and implement policies to State requirements, including any

commenter recommended requiring ensure that the State meets the LRE and requirements related to a teacher’s years
general education teachers who teach personnel standards requirements in of teaching experience. For example,
children with disabilities to meet the sections 612(a)(5) and (a)(14) of the Act, State requirements may vary for first-
highly qualified special education respectively. year teachers versus teachers who are
teacher requirements. Changes: None. not new to the profession. Full State



certification also means that the teacher fully certified during their training however, was inadvertently omitted in
has not had certification or licensure program, while at the same time the NPRM. Therefore, we will add
requirements waived on an emergency, individuals in regular teacher training appropriate references in § 300.18(b)(3)
temporary, or provisional basis. programs that meet the same to clarify that an individual
The terms ‘‘highly qualified’’ and requirements as alternative route to participating in an alternative route to
‘‘fully certified’’ are synonymous when certification programs are not certification program in special
used to refer to special education considered highly qualified or fully education who does not intend to teach
teachers who are not teaching core certified. One commenter argued that an a core academic subject, may be
academic subjects. For special individual participating in an considered a highly qualified special
education teachers teaching core alternative route to certification program education teacher if the individual
academic subjects, however, both full would need certification waived on an holds at least a bachelor’s degree and
special education certification or emergency, temporary, or provisional participates in an alternative route to
licensure and subject matter basis, which means the individual has certification program that meets the
competency are required. not met the requirements in requirements in § 300.18(b)(2).
Changes: We have changed the § 300.18(b)(1)(ii). Another commenter Changes: Appropriate citations have
heading to § 300.18(a) and the stated that three years is not enough been added in § 300.18(b)(3) to clarify
introductory material in § 300.18(a) and time for a teacher enrolled in an the requirements for individuals
(b)(1) for clarity. alternative route to certification program enrolled in alternative route to special
Comment: A few commenters to assume the functions of a teacher. education teacher certification
recommended prohibiting States from Discussion: While we understand the programs.
creating new categories to replace general objections to alternative route to Comment: A few commenters
emergency, temporary, or provisional certification programs expressed by the recommended more specificity in the
licenses that lower the standards for full commenters, the Department believes requirements for teachers participating
certification in special education. that alternative route to certification in alternative route to certification
Discussion: We do not believe it is programs provide an important option programs, rather than giving too much
necessary to add the additional language for individuals seeking to enter the discretion to States to develop programs
recommended by the commenters. teaching profession. The requirements that do not lead to highly qualified
Section 300.18(b)(1)(ii) and section in § 300.18(b)(2) were included in these personnel. However, one commenter
602(10)(B)(ii) of the Act are clear that a regulations to provide consistency with recommended allowing States the
teacher cannot be considered a highly the requirements in 34 CFR flexibility to create their own guidelines
qualified special education teacher if 200.56(a)(2)(ii)(A) and the ESEA, for alternative route to certification
the teacher has had special education regarding alternative route to programs.
certification or licensure waived on an certification programs. To help ensure Several commenters recommended
emergency, temporary, or provisional that individuals participating in clarifying the requirements for the
basis. This would include any new alternative route to certification teacher supervising an individual who
certification category that effectively programs are well trained, there are is participating in an alternative route to
allows special education certification or certain requirements that must be met as certification program. One commenter
licensure to be waived on an emergency, well as restrictions on who can be recommended requiring supervision,
temporary, or provisional basis. considered to have obtained full State guidance, and support by a professional
Changes: None. certification as a special education with expertise in the area of special
Comment: Some commenters teacher while enrolled in an alternative education in which the teacher desires
supported alternative route to route to certification program. An to become certified.
certification programs for special individual participating in an Discussion: Consistent with
education teachers. One commenter alternative route to certification program § 300.18(b)(2)(ii), States are responsible
stated that these programs are necessary must (1) hold at least a bachelor’s degree for ensuring that the standards for
to increase the number of highly and have demonstrated subject-matter alternative route to certification
qualified teachers and will help schools competency in the core academic programs in § 300.18(b)(2)(i) are met. It
on isolated tribal reservations recruit, subject(s) the individual will be is, therefore, up to each State to
train, and retain highly qualified teaching; (2) assume the functions of a determine whether to require specific
teachers. However, numerous teacher for not more than three years; qualifications for the teachers
commenters expressed concerns and and (3) demonstrate satisfactory responsible for supervising teachers
objections to alternative route to progress toward full certification, as participating in an alternative route to
certification programs for special prescribed by the State. The individual certification program.
education teachers. Several commenters also must receive, before and while Changes: None.
stated that allowing individuals making teaching, high-quality professional Comment: One commenter requested
progress in an alternative route to development that is sustained, clarification regarding the roles and
certification program to be considered intensive, and classroom-focused and responsibilities of special education
highly qualified and fully certified have intensive supervision that consists teachers who do not teach core
creates a lower standard, short-changes of structured guidance and regular academic subjects.
children, is not supported by any ongoing support. Discussion: Special education
provision in the Act, and undermines It was the Department’s intent to teachers who do not directly instruct
the requirement for special education allow an individual who wants to children in any core academic subject or
teachers to be fully certified. One become a special education teacher, but who provide only consultation to highly
commenter stated that this provision is does not plan to teach a core academic qualified teachers of core academic

illogical and punitive to higher subject, to enroll in an alternative route subjects do not need to demonstrate
education teacher training programs to certification program and be subject-matter competency in those
because it allows individuals in an considered highly qualified, provided subjects. These special educators could
alternative route to certification program that the individual holds at least a provide consultation services to other
to be considered highly qualified and bachelor’s degree. This requirement, teachers, such as adapting curricula,



using behavioral supports and cognitive disabilities who take an assessed against alternate achievement
interventions, or selecting appropriate alternate assessment, a State may, standards to meet the highly qualified
accommodations for children with through a documented and validated teacher standards that apply to
disabilities. They could also assist standards-setting process, define elementary school teachers. In the case
children with study skills or alternate academic achievement of instruction above the elementary
organizational skills and reinforce standards, provided those standards— level, the teacher must have subject
instruction that the child has already (1) Are aligned with the State’s matter knowledge appropriate to the
received from a highly qualified teacher academic content standards; level of instruction being provided, as
in that core academic subject. (2) Promote access to the general determined by the State, in order to
Changes: None. curriculum; and effectively teach to those standards.
Comment: Many commenters (3) Reflect professional judgment of We do not agree that allowing middle
recommended including language in the the highest achievement standards and high school students with the most
regulations to clarify that special possible. significant cognitive disabilities to be
education teachers who do not teach Changes: None. taught by teachers who meet the
core academic subjects and provide only Comment: Several commenters qualifications of a highly qualified
consultative services must restrict their expressed concern with allowing high elementary teacher fosters low
services to areas that supplement, not school students with significant expectations, encourages students to be
replace, the direct instruction provided cognitive disabilities to be taught by a treated like children, promotes
by a highly qualified general education certified elementary school teacher. One instruction that is not age appropriate,
teacher. One commenter recommended commenter stated that high school or denies students access to the general
that States develop criteria for teachers students with disabilities should be curriculum. Although alternate
who provide consultation services. prepared to lead productive adult lives, achievement standards differ in
Another commenter stated that special and not be treated as young children. complexity from grade-level standards,
education teachers should not work on Another commenter stated that these 34 CFR 200.1(d) requires that alternate
a consultative basis. requirements foster low expectations for achievement standards be aligned with
Discussion: The definition of children with the most significant the State’s content standards, promote
consultation services and whether a cognitive disabilities and will be used to access to the general curriculum, and
special education teacher provides justify providing children with reflect professional judgment of the
consultation services are matters best instruction that is not age appropriate or highest achievement standards possible.
left to the discretion of each State. that denies access to the general In short, we believe that the
While States may develop criteria to education curriculum. A few requirements in § 300.18(c) will ensure
distinguish consultation versus commenters stated that the that teachers teaching exclusively
instructional services, the Act and the requirements for special education children who are assessed against
ESEA are clear that teachers who teachers teaching to alternate alternate achievement standards will
provide direct instruction in a core achievement standards should be the have the knowledge to provide
academic subject, including special same as the requirements for all special instruction aligned to grade-level
education teachers, must meet the education teachers. content standards so that students with
highly qualified teacher requirements, Some commenters recommended the most significant cognitive
which include demonstrated requiring teachers who teach to disabilities are taught a curriculum that
competency in each of the core alternate achievement standards to have is closely tied to the general curriculum.
academic subjects the teacher teaches. subject matter knowledge to provide Changes: None.
Changes: None. instruction aligned to the academic Comment: A few commenters
content standards for the grade level in requested clarification regarding the
Requirements for Highly Qualified which the student is enrolled. One meaning of ‘‘subject matter knowledge
Special Education Teachers Teaching to commenter recommended requiring any appropriate to the level of instruction
Alternate Achievement Standards special education teacher teaching to provided’’ in § 300.18(c)(2).
(§ 300.18(c)) alternate achievement standards to Discussion: Section 300.18(c)(2)
Comment: One commenter demonstrate knowledge of age- requires that if a teacher (who is
recommended replacing ‘‘alternate appropriate core curriculum content to teaching exclusively to alternate
achievement standards’’ with ‘‘alternate ensure children with disabilities are achievement standards) is teaching
standards.’’ A few commenters taught a curriculum that is closely tied students who need instruction above the
requested including a definition of to the general education curriculum elementary school level, the teacher
alternate achievement standards in the taught to other children of the same age. must have subject matter knowledge
regulations. Discussion: The regulations appropriate to the level of instruction
Discussion: ‘‘Alternate achievement promulgated under section 1111(b)(1) of needed to effectively teach to those
standards’’ is statutory language and, the ESEA permit States to use alternate standards. The purpose of this
therefore, it would be inappropriate to achievement standards to evaluate the requirement is to ensure that teachers
change ‘‘alternate achievement performance of a small group of exclusively teaching children who are
standards’’ to ‘‘alternate standards.’’ children with the most significant assessed based on alternate academic
For the reasons set forth earlier in this cognitive disabilities who are not achievement standards above the
notice, we are not adding definitions expected to meet grade-level standards elementary level have sufficient subject
from other statutes to these regulations. even with the best instruction. An matter knowledge to effectively instruct
However, we will include the current alternate achievement standard sets an in each of the core academic subjects
description of alternate achievement expectation of performance that differs being taught, at the level of difficulty

standards in 34 CFR 200.1(d) of the in complexity from a grade-level being taught. For example, if a high
ESEA regulations here for reference. achievement standard. Section school student (determined by the IEP
For children under section 602(3) of 602(10)(C)(ii) of the Act, therefore, Team to be assessed against alternate
the Individuals with Disabilities allows special education teachers achievement standards) has knowledge
Education Act with the most significant teaching exclusively children who are and skills in math at the 7th grade level,



but in all other areas functions at the who teaches multiple subjects, and who special education teachers, as long as
elementary level, the teacher would is highly qualified in mathematics, those adaptations of a State’s HOUSSE
need to have knowledge in 7th grade language arts, or science at the time of for use with special education teachers
math in order to effectively teach the hire, two years after the date of do not establish lower standards for the
student to meet the 7th grade math employment to demonstrate competence content knowledge requirements for
standards. No further clarification is in the other core academic subjects in special education teachers.
necessary. which the teacher teaches. We do not Discussion: States have the option of
Changes: None. believe that further clarification is developing a method by which teachers
Comment: A few commenters necessary. can demonstrate competency in each
recommended that the regulations Changes: None. subject they teach on the basis of a
include requirements for teachers who Comment: One commenter requested HOUSSE. Likewise, we believe States
provide instruction to children assessed clarification regarding the meaning of should have the option of developing a
against modified achievement the following phrases in § 300.18(d): separate HOUSSE for special education
standards. Several commenters stated ‘‘multiple subjects,’’ ‘‘in the same teachers.
that the requirements for teachers manner,’’ and ‘‘all the core academic States have flexibility in developing
teaching children assessed against subjects.’’ their HOUSSE evaluation as long as it
modified achievement standards should Discussion: ‘‘Multiple subjects’’ refers meets each of the following criteria
be the same for teachers teaching to two or more core academic subjects. established in section 9101(23)(C)(ii) of
children assessed against alternate Section 300.18(d) allows teachers who the ESEA:
achievement standards. are new or not new to the profession to • Be set by the State for both grade-
Discussion: The Department has not demonstrate competence in ‘‘all the core appropriate academic subject-matter
issued final regulations addressing subjects’’ in which the teacher teaches knowledge and teaching skills;
modified achievement standards and ‘‘in the same manner’’ as is required for • Be aligned with challenging State
the specific criteria for determining an elementary, middle, or secondary academic content and student academic
which children with disabilities should school teacher under the ESEA. As used achievement standards and developed
be assessed based on modified in this context, ‘‘in the same manner’’ in consultation with core content
achievement standards. As proposed, means that special education teachers specialists, teachers, principals, and
the modified achievement standards teaching multiple subjects can school administrators;
must be aligned with the State’s demonstrate competence in the core • Provide objective, coherent
academic content standards for the academic subjects they teach in the information about the teacher’s
grade in which the student is enrolled same way that is required for attainment of core content knowledge in
and provide access to the grade-level elementary, middle, or secondary school the academic subjects in which a
curriculum. For this reason, we see no teachers in 34 CFR 200.56 of the ESEA teacher teaches;
need for a further exception to the regulations. ‘‘All the core subjects’’ • Be applied uniformly to all teachers
‘‘highly qualified teacher’’ provisions at refers to the core academic subjects, in the same academic subject and
this time. which include English, reading or teaching in the same grade level
Changes: None. language arts, mathematics, science, throughout the State;
foreign languages, civics and • Take into consideration, but not be
Requirements for Highly Qualified
government, economics, arts, history, based primarily on, the time the teacher
Special Education Teachers Teaching
and geography, consistent with § 300.10. has been teaching in the academic
Multiple Subjects (§ 300.18(d))
Changes: None. subject; and
Comment: A few commenters stated Comment: One commenter • Be made available to the public
that the requirements for teachers who recommended ensuring that the upon request.
teach two or more core academic requirements in § 300.18(d) apply to The ESEA also permits States, when
subjects exclusively to children with special education teachers who teach developing their HOUSSE procedures,
disabilities are confusing. Some children with severe disabilities in more to involve multiple, objective measures
commenters requested additional than one core subject area. of teacher competency. Each evaluation
guidance and flexibility for special Discussion: The requirements in should have a high, objective, uniform
education teachers teaching two or more § 300.18(d) do not exclude teachers who standard that the candidate is expected
core academic subjects. Other teach children with severe disabilities to meet or to exceed. These standards
commenters recommended allowing in more than one core subject area. for evaluation must be applied to each
special education teachers more time to Consistent with § 300.18(d) and section candidate in the same way.
become highly qualified in all the core 602(10)(D) of the Act, the requirements We believe it is appropriate and
academic subjects they teach. apply to special education teachers who consistent with the Act to permit States
Discussion: The requirements in teach two or more core academic to develop a separate HOUSSE for
§ 300.18(d), consistent with section subjects exclusively to children with special education teachers to
602(10)(C) of the Act, provide flexibility disabilities, including, but not limited demonstrate subject matter competency
for teachers who teach multiple core to, children with severe disabilities. We and to use a single HOUSSE covering
academic subjects exclusively to do not believe that further clarification multiple subjects, provided that any
children with disabilities. Section is necessary. adaptations to the HOUSSE do not
300.18(d)(2) and (3) allows teachers who Changes: None. establish a lower standard for the
are new and not new in the profession Comment: A significant number of content knowledge requirements for
to demonstrate competence in all the commenters recommended adding special education teachers and meet all
core academic subjects in which the language to the regulations to permit a the requirements for a HOUSSE for

teacher teaches using a single, high separate HOUSSE for special education regular education teachers established
objective uniform State standard of teachers, including a single HOUSSE in section 9101(23)(C)(ii) of the ESEA.
evaluation (HOUSSE) covering multiple that covers multiple subjects. Some Changes: We have added a new
subjects. In addition, § 300.18(d)(3) commenters supported a single paragraph (e) to § 300.18 to allow States
gives a new special education teacher HOUSSE covering multiple subjects for to develop a separate HOUSSE for



special education teachers and to permit August 3, 2005 (available at http:// 2005), which can be found on the
the use of a single HOUSSE covering www.ed.gov/programs/teacherqual/ Department’s Web site at: http://
multiple subjects. Subsequent guidance.doc.) provides the following www.ed.gov/programs/teacherqual/
paragraphs have been renumbered. guidance to States when developing guidance.doc.
Comment: A few commenters stated their HOUSSE procedures (see question Changes: None.
that the HOUSSE should only be used A–10): Comment: Some commenters
to address the content requirements, not • Do the HOUSSE procedures provide requested a definition of ‘‘new’’ special
primary certification as a special an ‘‘objective’’ way of determining education teacher and asked whether it
educator. whether teachers have adequate subject- applies to teachers hired after the date
Discussion: A HOUSSE is a method matter knowledge in each core academic of enactment of the Act, December 3,
by which teachers can demonstrate subject they teach? 2004, or after the 2005–06 school year.
competency in each subject they teach. • Is there a strong and compelling One commenter asked whether a fully
A HOUSSE does not address the rationale for each part of the HOUSSE certified regular education teacher who
requirement for full State certification as procedures? enrolls in a special education teacher
a special education teacher. • Do the procedures take into training program would be considered
Changes: None. account, but not primarily rely on, ‘‘new’’ to the profession when he or she
Comment: Several commenters previous teaching experience? completes the training program.
recommended clarifying the • Does the plan provide solid Discussion: Under the Act, mere
requirements for a HOUSSE, evidence that teachers have mastered completion of a special education
particularly at the high school level. the subject-matter content of each of the teacher training program is not a
One commenter recommended core academic subjects they are sufficient predicate for being considered
clarifying the use of a separate HOUSSE teaching? (Note: experience and a highly qualified special education
for teachers of children with visual association with content-focused groups teacher. Section 602(10)(B) of the Act
impairments. or organizations do not necessarily requires full State certification or
Discussion: The requirements for a translate into an objective measure of licensure as a special education teacher,
HOUSSE apply to public school content knowledge.) and this would apply to teachers who
elementary, middle, and high school • Has the State consulted with core are already certified or licensed as a
special education teachers. Neither the content specialists, teachers, principals, regular education teacher, as well as to
Act nor the ESEA provides for different and school administrators? other individuals.
HOUSSE procedures at the high school • Does the State plan to widely On the question of when a person is
level. Similarly, there are no distribute its HOUSSE procedures, and ‘‘new to the profession,’’ the
requirements for separate HOUSSE are they presented in a format Department’s non-regulatory guidance
procedures for teachers who teach understandable to all teachers? on Improving Teacher Quality State
children with visual impairments or any Changes: None. Grants issued on August 3, 2005,
other specific type of disability. We do Comment: A few commenters asked clarifies that States have the authority to
not believe it is necessary or appropriate whether the additional time allowed for define which teachers are new and not
to establish separate requirements for teachers living in rural areas who teach new to the profession; however, those
separate HOUSSE procedures for multiple subjects applies to special definitions must be reasonable. The
teachers who teach children with visual education teachers. One commenter guidance further states that the
impairments or any other specific type requested that teachers in rural areas Department strongly believes that a
of disability. All children with have three extra years after the date of teacher with less than one year of
disabilities, regardless of their specific employment to meet the standards. teaching experience is ‘‘new’’ to the
disability, should have teachers with the Another commenter stated it will be profession (see Question A–6). (The
subject matter knowledge to assist them difficult for these teachers to meet the guidance is available at http://
to achieve to high academic standards. highly qualified special education www.ed.gov/programs/teacherqual/
Changes: None. teacher requirements even with an guidance.doc). This guidance is
Comment: One commenter extended deadline. applicable to determinations of when a
recommended that States work Discussion: The Department’s policy person is new or not new to the
collaboratively to ensure there is State on flexibility for middle and high school profession under section 602(10)(C) and
reciprocity of content area standards for teachers in rural schools applies to (D)(ii) of the Act and § 300.18(c) and
special education teachers, including special education teachers. Under this (d)(2).
HOUSSE provisions. policy, announced on March 15, 2004, Under section 602(10)(D)(iii) of the
Discussion: It is up to each State to States may permit LEAs eligible to Act, and reflected in § 300.18(d)(3),
determine when and on what basis to participate in the Small Rural School there is additional flexibility for ‘‘a new
accept another State’s determination Achievement (SRSA) program that special education teacher’’ who is
that a particular teacher is highly employ teachers who teach multiple teaching multiple subjects and is highly
qualified. Additionally, each State subjects and are highly qualified in at qualified in mathematics, language arts,
determines whether to consider a least one core academic subject, to have or science, to demonstrate competence
teacher from another State to be both until the end of the 2006–07 school year in the other core academic subjects in
fully certified and competent in each for these teachers to be highly qualified which the teacher teaches in the same
subject area. in each subject that they teach. Newly- manner as is required for an elementary,
Changes: None. hired teachers in these covered LEAs middle, or secondary school teacher
Comment: One commenter requested have three years from the date of hire to who is not new to the profession, which
specific guidance on how to design a become highly qualified in each core may include a single, high objective

multi-subject HOUSSE for special academic subject that they teach. More uniform State standard of evaluation
education teachers. information about this policy is covering multiple subjects, not later
Discussion: The Department’s non- available in the Department’s than 2 years after the date of
regulatory guidance on Improving nonregulatory guidance, Improving employment. The phrase ‘‘2 years after
Teacher Quality State Grants issued on Teacher Quality State Grants (August 3, the date of employment’’ in section



602(10)(D)(iii) of the Act is interpreted Comment: One commenter Changes: None.
to mean 2 years after employment as a recommended requiring schools to post
Rule of Construction (New § 300.18(f))
special education teacher. the credentials of educational personnel
For purposes of this provision, we (Proposed § 300.18(e))
in a place with public access, and to
consider it appropriate to consider a include in the procedural safeguards Comment: A number of commenters
fully certified regular education teacher notice a parent’s right to request the stated that the rule of construction in
who subsequently becomes fully credentials of any teacher who supports new § 300.18(f) (proposed § 300.18(e))
certified or licensed as a special the child in an educational and § 300.156(e) should use the same
education teacher to be considered a environment. Another commenter stated language. One commenter stated that in
‘‘new special education teacher’’ when that parents should have access to order to prevent confusion, the right of
they are first hired as a special records documenting the type of action limitations regarding highly
education teacher. We will add language supervision that is being provided when qualified teachers in new § 300.18(f)
to new § 300.18(g) (proposed § 300.18(f)) a teacher or other service provider is (proposed § 300.18(e)) and personnel
to make this clear. under the supervision of a highly qualifications in § 300.156(e) should use
Changes: We have restructured qualified teacher. One commenter stated consistent language regarding
§ 300.18(g) (proposed § 300.18(f)) and that the ESEA requires districts to individual and class actions, and clearly
added a new paragraph (g)(2) to permit provide parents with information about underscore that the limitations are
a fully certified regular education the personnel qualifications of their applicable to both administrative and
teacher who subsequently becomes fully child’s classroom teachers and asked judicial actions. One commenter
certified or licensed as a special whether this requirement applies to recommended reiterating the language
education teacher to be considered a special education teachers. from section 612(a)(14)(D) of the Act
new special education teacher when Discussion: There is nothing in the that nothing prevents a parent from
first hired as a special education Act that authorizes the Department to filing a State complaint about staff
teacher. require schools to publicly post the qualifications. Another commenter
Comment: Some commenters credentials of educational personnel or expressed concern because new
recommended that the regulations to provide parents with information § 300.18(f) (proposed § 300.18(e)) and
clarify how co-teaching fits with the about the qualification of their child’s § 300.156(e) may be construed to
highly qualified special education teachers and other service providers. prevent due process hearings when an
teacher requirements. A few Section 615 of the Act describes the LEA or SEA fails to provide a highly
commenters stated that a special guaranteed procedural safeguards qualified teacher.
education teacher should be considered afforded to children with disabilities
a highly qualified teacher if co-teaching Discussion: We agree that the rule of
and their parents under the Act but does construction in new § 300.18(f)
with a highly qualified general not address whether parents can request
education teacher. One commenter (proposed § 300.18(e)) and § 300.156(e)
information about the qualifications of
stated that co-teaching will encourage should be the same. We will change the
teachers and other service providers.
districts to work toward more inclusive regulations to clarify that a parent or
However, section 1111(h)(6) of the
settings for children with disabilities ESEA requires LEAs to inform parents student may not file a due process
while also ensuring that teachers with about the quality of a school’s teachers complaint on behalf of a student, or file
appropriate qualifications are in the in title I schools. The ESEA requires that a judicial action on behalf of a class of
classroom. One commenter supported at the beginning of each school year, an students for the failure of a particular
co-teaching as a method for special LEA that accepts title I, part A funding SEA or LEA employee to be highly
education teachers to learn core content must notify parents of children in title qualified; however, a parent may file a
knowledge and be supported by the I schools that they can request complaint about staff qualifications with
general education teacher. One teacher information regarding their child’s the SEA. In addition to permitting a
recommended that a highly qualified classroom teachers, including, at a parent to file a complaint with the SEA,
general education teacher supervise minimum: (1) Whether the teacher has an organization or an individual may
teachers who do not meet the highly met the State requirements for licensure also file a complaint about staff
qualified special education teacher and certification for the grade levels and qualifications with the SEA, consistent
requirements. subject matters in which the teacher with the State complaint procedures in
Discussion: The term ‘‘co-teaching’’ provides instruction; (2) whether the §§ 300.151 through 300.153.
has many different meanings depending teacher is teaching under emergency or Changes: We have added ‘‘or to
on the context in which it is used. other provisional status through which prevent a parent from filing a complaint
Whether and how co-teaching is State qualification or licensing criteria about staff qualifications with the SEA
implemented is a matter that is best left have been waived; (3) the college major as provided for under this part’’ in new
to State and local officials’ discretion. and any other graduate certification or § 300.18(f) (proposed § 300.18(e)).
Therefore, we decline to include degree held by the teacher, and the field Comment: Several commenters
language regarding co-teaching in these of discipline of the certification or recommended that the regulations
regulations. Regardless of whether co- degree; and (4) whether the child is specify that the failure of an SEA or LEA
teaching models are used, States and provided services by paraprofessionals, to provide a child with a disability a
LEAs must ensure that teachers meet the and if so, their qualifications. In highly qualified teacher can be a
highly qualified teacher requirements in addition, each title I school must consideration in the determination of
34 CFR 200.56 and section 9101(23) of provide parents with timely notice that whether a child received FAPE, if the
the ESEA and the highly qualified the parent’s child has been assigned, or child is not learning the core content
special education teacher requirements has been taught for four or more standards or not meeting IEP goals.

in § 300.18 and section 602(10) of the consecutive weeks by, a teacher who is However, a few commenters
Act, as well as the personnel not highly qualified. These recommended that the regulations
requirements in § 300.156 and section requirements apply only to those special clarify that it is not a denial of FAPE if
612(a)(14) of the Act. education teachers who teach core a special education teacher is not highly
Changes: None. academic subjects in title I schools. qualified.



Discussion: If the only reason a parent of core academic subjects under the the SEA is in the best position to weigh
believes their child was denied FAPE is ESEA. This includes special education the needs of private school children for
that the child did not have a highly teachers who teach core academic highly qualified teachers and to assess
qualified teacher, the parent would have subjects. what effect these requirements would
no right of action under the Act on that The Office of Special Education have on the shortage of special
basis. The rules of construction in new programs (OSEP) collects data about education teachers in the State. One
§ 300.18(f) (proposed § 300.18(e)) and special education personnel commenter asked whether the highly
§ 300.156(e) do not allow a parent or qualifications and requires that SEAs qualified teacher requirements apply to
student to file a due process complaint establish and maintain qualifications to providers in private residential
for failure of an LEA or SEA to provide ensure that personnel essential to treatment centers where children with
a highly qualified teacher. carrying out the purposes of Part B of disabilities are placed to receive FAPE.
Changes: None. the Act are appropriately and Discussion: New § 300.18(h)
Comment: One commenter expressed adequately prepared and trained. Those (proposed § 300.18(g)) accurately
concern with the rule of construction in personnel must also have the content reflects the Department’s position that
new § 300.18(f) (proposed § 300.18(e)) knowledge and skills to serve children the highly qualified special education
because there are no requirements to with disabilities, consistent with teacher requirements do not apply to
develop a specific enforcement system § 300.156. teachers hired by private elementary
to ensure that teachers meet the highly OESE and OSEP will share their data schools and secondary schools. This
qualified standard. A few commenters to ensure that the highly qualified includes teachers hired by private
recommended changing the rule of teacher requirements under the ESEA elementary schools and secondary
construction so that States meet their and the Act are met. This sharing of schools who teach children with
supervisory responsibilities under the information will also prevent schools disabilities. Consistent with this
Act if LEAs in the State are sanctioned from being punished twice for the same position and in light of comments
under the ESEA for not having highly infraction. received regarding the requirements for
qualified teachers. Changes: None. private school teachers providing
Some commenters recommended equitable services for parentally-placed
Teachers Hired by Private Elementary
clarifying that when the SEA or LEA private school children with disabilities
and Secondary Schools (New
employs an individual who is not under § 300.138, we will add language
§ 300.18(h)) (Proposed § 300.18(g))
highly qualified, States meet their to new § 300.18(h) (proposed
responsibilities for general supervision Comment: Some commenters agreed § 300.18(g)) to clarify that the highly
under the Act through the notice and with new § 300.18(h) (proposed qualified special education teacher
other sanction procedures identified § 300.18(g)), which states that the highly requirements also do not apply to
under the ESEA. qualified special education teacher private school teachers who provide
One commenter stated that the requirements do not apply to teachers equitable services to parentally-placed
regulations are silent with regard to SEA hired by private elementary schools and private school children with disabilities
actions when meeting the general secondary schools. However, many under § 300.138.
supervision requirements under the Act, commenters disagreed, stating that Changes: We have added language in
and noted that unless the regulations are children placed by an LEA in a private new § 300.18(h) (proposed § 300.18(g))
expanded to clarify that SEA school are entitled to receive the same to clarify that the highly qualified
enforcement procedures under high quality instruction as special special education teacher requirements
compliance monitoring are limited to education children in public schools. A also do not apply to private school
ESEA enforcement procedures, the few commenters stated that LEAs will teachers who provide equitable services
highly qualified teacher requirements of place children in private schools to to parentally-placed private school
an individual teacher may avoid hiring highly qualified teachers. children with disabilities under
inappropriately become the target for a Some commenters stated that public § 300.138.
finding of noncompliance. This funds should not be used for any school
commenter further stated that the ESEA that is not held to the same high Homeless Children (§ 300.19)
contains specific procedures for failure standards as public schools. Other Comment: Several commenters
of a district to comply with the highly commenters stated that children with requested adding the definition of
qualified teacher provisions, and if the the most significant disabilities who are homeless children in the regulations so
SEA also exercises sanctioning authority placed in private schools are children that it is readily accessible to parents,
under the Act, schools could be with the most need for highly qualified advocates, and educators.
punished twice under two separate teachers. A few commenters stated that Discussion: The term homeless
provisions of Federal law for the same this provision is contrary to the intent children is defined in the McKinney-
infraction. The commenter of the ESEA and the Act to support the Vento Homeless Assistance Act. For the
recommended that to avoid double educational achievement of children reasons set forth earlier in this notice,
jeopardy the regulations should clarify with disabilities. Other commenters we are not adding the definitions of
that the ESEA enforcement procedures stated that if instruction by a highly other statutes to these regulations.
for a district’s failure to hire a highly qualified teacher is a hallmark of FAPE, However, we will include the current
qualified teacher follow the provisions it should be an element of FAPE in any definition of homeless children in
of the ESEA, not the Act. educational setting in which the child is section 725 (42 U.S.C. 11434a) of the
Discussion: The implementation and enrolled by a public agency. McKinney-Vento Homeless Assistance
enforcement of the highly qualified A few commenters recommended that Act, as amended, 42 U.S.C. 11431 et seq.
teacher standards under the ESEA and States have the discretion to determine (McKinney-Vento Act) here for

the Act complement each other. The whether and to what extent the highly reference.
Office of Elementary and Secondary qualified teacher requirements apply to The term homeless children and
Education (OESE) currently monitors teachers who teach publicly-placed and youths—
the implementation of the highly parentally-placed children with (A) means individuals who lack a
qualified teacher standards for teachers disabilities. The commenters stated that fixed, regular, and adequate nighttime



residence (within the meaning of Changes: None. provision of services by including State
section 103(a)(1)); and Indian tribes in the definition. Another
(B) includes— Indian and Indian Tribe (§ 300.21)
commenter stated that including State
(i) children and youths who are Comment: One commenter expressed Indian tribes in the definition of Indian
sharing the housing of other persons support for combining and moving the and Indian tribe implies that children of
due to loss of housing, economic definition of Indian and Indian tribe State-recognized tribes are considered
hardship, or a similar reason; are living from current § 300.264 to the definitions differently than other children.
in motels, hotels, trailer parks, or section of these regulations because the Discussion: As noted in the
camping grounds due to the lack of term is applicable in instances not discussion responding to the previous
alternative adequate accommodations; related to BIA schools. However, comment, the list of Indian entities
are living in emergency or transitional another commenter stated that the recognized as eligible to receive services
shelters; are abandoned in hospitals; or definition was unnecessary because the from the United States is published in
are awaiting foster care placement; purpose of the Act is to ensure that the Federal Register, pursuant to
(ii) children and youths who have a every child has FAPE. Section 104 of the Federally Recognized
primary nighttime residence that is a Discussion: The definitions of Indian Indian Tribe List Act of 1994, 25 U.S.C.
public or private place not designed for and Indian tribe are included in 479a–1. The Federal government does
or ordinarily used as a regular sleeping sections 602(12) and (13) of the Act, not maintain a list of other State Indian
accommodation for human beings respectively, and are, therefore, tribes. Including State Indian tribes that
(within the meaning of section included in subpart A of these are not federally recognized in the
103(a)(2)(C)); regulations. Subpart A includes definition does not affect who is
(iii) children and youths who are definitions for those terms and phrases responsible under the Act for the
living in cars, parks, public spaces, about which we are frequently asked provision of services to children with
abandoned buildings, substandard and which we believe will assist SEAs disabilities who are members of State
housing, bus or train stations, or similar and LEAs in implementing the Indian tribes. Under section 611(h)(1) of
settings; and requirements of the Act. Including the the Act, the Secretary of the Interior is
(iv) migratory children (as such term definitions of Indian and Indian tribe in responsible for providing special
is defined in section 1309 of the the definitions section does not in any education and related services to
Elementary and Secondary Education way affect the provision of FAPE to all children age 5 through 21 with
Act of 1965) who qualify as homeless eligible children under the Act. disabilities on reservations who are
for the purposes of this subtitle because Changes: None. enrolled in elementary schools and
the children are living in circumstances Comment: One commenter requested secondary schools for Indian children
described in clauses (i) through (iii). omitting ‘‘State Indian tribes’’ that are operated or funded by the Secretary of
Changes: None. not also federally-recognized tribes from the Interior. With respect to all other
Comment: One commenter stated that the definition of Indian and Indian tribe children aged 3 through 21 on
regulations are needed to address school stating that Federal recognition of an reservations, the SEA of the State in
selection and enrollment provisions Indian tribe should be a predicate for which the reservation is located is
under the McKinney-Vento Act. the tribe’s eligibility for Federal responsible for ensuring that all the
Another commenter recommended that programs and services. One commenter requirements of Part B of the Act are
the regulations include the McKinney- expressed concern that including ‘‘State implemented.
Vento Act’s requirement that school Indian tribes’’ in the definition could Changes: None.
stability for homeless children be imply that the Secretary of the Interior
maintained during periods of residential is responsible for providing special Individualized Family Service Plan
mobility and that homeless children education and related services or (§ 300.24)
enrolled in new schools have the ability funding to all State Indian tribes. Comment: A few commenters
to immediately attend classes and Discussion: Section 602(13) of the Act recommended including the entire
participate in school activities. and § 300.21(b) define Indian tribe as definition of individualized family
Discussion: We appreciate the ‘‘any Federal or State Indian tribe’’ and service plan in the regulations so that
commenters’ concerns, but do not do not exclude State Indian tribes that parents and school personnel do not
believe it is necessary to duplicate the are not federally-recognized tribes. We have to shift back and forth between
requirements of the McKinney-Vento will add a new paragraph (c) to § 300.21 documents.
Act in these regulations. We believe that clarifying that the definition of Indian Discussion: Adding the entire
these issues, as well as other issues and Indian tribe is not intended to definition of individualized family
regarding children with disabilities who indicate that the Secretary of Interior is service plan in section 636 of the Act,
are homeless, would be more required to provide services or funding which includes information related to
appropriately addressed in non- to a State Indian tribe that is not listed assessment and program development;
regulatory guidance, in which more in the Federal Register list of Indian periodic review; promptness after
detailed information and guidance can entities recognized as eligible to receive assessment; content of the plan; and
be provided on how to implement the services from the United States, parental consent, would unnecessarily
requirements of the Act and the published pursuant to Section 104 of add to the length of the regulations.
McKinney-Vento Act to best meet the the Federally Recognized Indian Tribe However, the required content of the
needs of homeless children with List Act of 1994, 25 U.S.C. 479a–1. IFSP in section 636(d) of the Act is
disabilities. We will work with the Changes: A new paragraph (c) has added here for reference.
Office of Elementary and Secondary been added to § 300.21 to provide this The individualized family service
Education to provide guidance and clarification. plan shall be in writing and contain—

disseminate information to special Comment: One commenter stated that (1) A statement of the infant’s or
education teachers and administrators it was unclear how many States have toddler’s present levels of physical
regarding their responsibilities for defined Indian tribes that are not development, cognitive development,
serving children with disabilities who defined by the Federal government and communication development, social or
are homeless. asked what the effect would be on the emotional development, and adaptive



development, based on objective Changes: Section 300.25 has been compulsory school attendance in the
criteria; revised to include the entire definition State in which the institution is located.
(2) a statement of the family’s of infant or toddler with a disability Changes: None.
resources, priorities, and concerns from section 632(5) of the Act. Comment: One commenter requested
relating to enhancing the development that we add language to the regulations
Institution of Higher Education that would allow Haskell and Sipi,
of the family’s infant or toddler with a
(§ 300.26) postsecondary programs under the
disability;
(3) a statement of the measurable Comment: One commenter Haskell Indian Nations University and
results or outcomes expected to be recommended including the definition Southwestern Indian Polytechnic
achieved for the infant or toddler and of institution of higher education in Institute Administrative Act of 1988, 25
the family, including pre-literacy and these regulations. U.S.C. 3731 et seq., to be included in the
language skills, as developmentally Discussion: The term institution of definition of institution of higher
appropriate for the child, and the higher education is defined in section education.
criteria, procedures, and timelines used 101 of the Higher Education Act of Discussion: The Haskell and Sipi
to determine the degree to which 1965, as amended, 20 U.S.C. 1021 et postsecondary programs under the
progress toward achieving the results or seq. (HEA). For the reasons set forth Haskell Indian Nations University and
outcomes is being made and whether earlier in this notice, we are not adding Southwestern Indian Polytechnic
modifications or revisions of the results definitions from other statutes to these Institute Administrative Act of 1988, 25
or outcomes or services are necessary; regulations. However, we are including U.S.C. 3731 et seq. meet the statutory
(4) a statement of specific early the current definition here for reference. definition of institution of higher
intervention services based on peer- (a) Institution of higher education— education in section 602(17) of the Act
reviewed research, to the extent For purposes of this Act, other than title because they meet the definition of the
practicable, necessary to meet the IV, the term institution of higher term in section 101 of the HEA. The Act
unique needs of the infant or toddler education means an educational does not include specific institutions in
and the family, including the frequency, institution in any State that— the definition of institution of higher
(1) Admits as regular students only education, nor do we believe it is
intensity, and method of delivering
persons having a certificate of necessary to add specific institutions to
services;
graduation from a school providing the definition in § 300.26.
(5) a statement of the natural
secondary education, or the recognized Changes: None.
environments in which early
equivalent of such a certificate;
intervention services will appropriately (2) is legally authorized within such Limited English Proficient (§ 300.27)
be provided, including a justification of State to provide a program of education Comment: One commenter requested
the extent, if any, to which the services beyond secondary education; specific information about bilingual
will not be provided in a natural (3) provides an educational program qualified personnel and qualified
environment; for which the institution awards a interpreters. Some commenters
(6) the projected dates for initiation of bachelor’s degree or provides not less recommended including the definition
services and the anticipated length, than a 2-year program that is acceptable of ‘‘limited English proficient’’ in the
duration, and frequency of the services; for full credit toward such a degree; regulations.
(7) the identification of the service (4) is a public or other nonprofit Discussion: Each State is responsible
coordinator from the profession most institution; and for determining the qualifications of
immediately relevant to the infant’s or (5) is accredited by a nationally bilingual personnel and interpreters for
toddler’s or family’s needs (or who is recognized accrediting agency or children with limited English
otherwise qualified to carry out all association, or if not so accredited, is an proficiency.
applicable responsibilities under this institution that has been granted The term limited English proficient is
part) who will be responsible for the preaccreditation status by such an defined in the ESEA. For the reasons set
implementation of the plan and agency or association that has been forth earlier in this notice, we are not
coordination with other agencies and recognized by the Secretary for the adding the definitions from other
persons, including transition services; granting of preaccreditation status, and statutes to these regulations. However,
and the Secretary has determined that there we will include the current definition in
(8) the steps to be taken to support the is satisfactory assurance that the section 9101(25) of the ESEA here for
transition of the toddler with a institution will meet the accreditation reference.
disability to preschool or other standards of such an agency or The term limited English proficient
appropriate services. association within a reasonable time. when used with respect to an
Changes: None. (b) Additional Institutions Included— individual, means an individual—
Infant or Toddler With a Disability For purposes of this Act, other than title (A) Who is aged 3 through 21;
(§ 300.25) IV, the term institution of higher (B) Who is enrolled or preparing to
education also includes— enroll in an elementary school or
Comment: A few commenters (1) Any school that provides not less secondary school;
recommended including the entire than a 1-year program of training to (C)(i) who was not born in the United
definition of infant or toddler with a prepare students for gainful States or whose native language is a
disability in the regulations so that employment in a recognized occupation language other than English;
parents and school personnel do not and that meets the provision of (ii)(I) who is a Native American or
have to shift back and forth between paragraphs (1), (2), (4), and (5) of Alaska Native, or a native resident of the
documents. subsection (a); and outlying areas; and

Discussion: We agree with the (2) a public or nonprofit private (II) who comes from an environment
commenters and, therefore, will include educational institution in any State that, where a language other than English has
the definition of infant or toddler with in lieu of the requirement in subsection had a significant impact on the
a disability from section 632(5) of the (a)(1), admits as regular students individual’s level of English language
Act in these regulations for reference. persons who are beyond the age of proficiency; or



(iii) who is migratory, whose native is established as an LEA under State communication). We believe this
language is a language other than law.’’ language adequately addresses the
English, and who comes from an Comment: One commenter stated that commenters’ concerns.
environment where a language other § 300.28(c) is in error from a technical Changes: None.
than English is dominant; and drafting perspective because it does not
Parent (§ 300.30)
(D) whose difficulties in speaking, follow the statutory language in section
reading, writing, or understanding the 602(19)(C) of the Act. The commenter Comment: Several commenters
English language may be sufficient to also suggested adding a definition of objected to the term ‘‘natural parent’’ in
deny the individual— ‘‘BIA funded school,’’ rather than the definition of parent because
(i) the ability to meet the State’s adding a new definition of LEA related ‘‘natural parent’’ presumes there are
proficient level of achievement on State to BIA funded schools. ‘‘unnatural parents.’’ The commenters
assessments described in section Discussion: We agree that § 300.28(c) recommended using ‘‘birth parent’’ or
1111(b)(3); does not accurately reflect the statutory ‘‘biological parent’’ throughout the
(ii) the ability to successfully achieve language in section 602(19)(C) of the Act regulations.
in classrooms where the language of and, as written, could be interpreted as Discussion: We understand that many
instruction is English; or defining BIA funded schools. This was people find the term ‘‘natural parent’’
(iii) the opportunity to participate not our intent. Rather, the intent was to offensive. We will, therefore, use the
fully in society. include ‘‘BIA funded schools’’ in the term ‘‘biological parent’’ to refer to a
Changes: None. definition of LEA, consistent with non-adoptive parent.
section 602(19)(C) of the Act. Changes: We have replaced the term
Local Educational Agency (§ 300.28) In order to correct the technical ‘‘natural parent’’ with ‘‘biological
Comment: One commenter suggested drafting error, we will change parent’’ in the definition of parent and
revising § 300.28 to ensure that all § 300.28(c) to accurately reflect section throughout these regulations.
responsibilities and rights attributed to 602(19)(C) of the Act. We decline to add Comment: A significant number of
an LEA apply to an ESA. a definition of ‘‘BIA funded schools.’’ commenters recommended retaining the
Discussion: We believe that the The Act does not define this term and language in current § 300.20(b), which
provisions in § 300.12 and § 300.28 are the Department does not believe that it states that a foster parent can act as a
clear that ESAs have full responsibilities is necessary to define the term. parent if the biological parent’s
and rights as LEAs. We, therefore, Changes: In order to correct a authority to make educational decisions
decline to revise § 300.28. technical drafting error, § 300.28(c) has on the child’s behalf have been
Changes: None. been revised to be consistent with extinguished under State law, and the
Comment: None. statutory language. foster parent has an ongoing, long-term
Discussion: Through its review of parental relationship with the child; is
charter schools’ access to Federal Native Language (§ 300.29)
willing to make the educational
funding, it has come to the Department’s Comment: A few commenters decisions required of parents under the
attention that additional guidance is expressed support for retaining the Act; and has no interest that would
needed regarding whether charter definition of native language, stating conflict with the interest of the child.
schools that are established as their own that it is important to clarify that sign A few commenters stated that current
LEAs must be nonprofit entities in order language is the native language of many § 300.20(b) better protects children’s
to meet the definition of LEA in children who are deaf. One commenter interests and should not be removed.
§ 300.28. The definition of LEA in stated it is important to clarify that the Another commenter stated that
§ 300.28(b)(2) specifically includes a language normally used by the child removing current § 300.20 will have
public charter school that is established may be different than the language unintended consequences for the many
as an LEA under State law and that normally used by the parents. Another foster children who move frequently to
exercises administrative control or commenter stated that the definition of new homes because there will be
direction of, or performs a service native language does not adequately confusion as to who has parental rights
function for, itself. For purposes of the cover individuals with unique language under the Act. A few commenters stated
Act, the definitions of charter school, and communication techniques such as that short-term foster parents may not
elementary school, and secondary deafness or blindness or children with have the knowledge of the child or the
school in §§ 300.7, 300.13, and 300.36, no written language. willingness to actively participate in the
respectively, require that a public Discussion: The definition of native special education process, which will
elementary or secondary charter school language was expanded in the 1999 effectively leave the child without a
be a nonprofit entity. Therefore, a public regulations to ensure that the full range parent.
elementary or secondary charter school of needs of children with disabilities One commenter stated that § 300.30
established as its own LEA under State whose native language is other than needs to be changed to protect
law, also must be a nonprofit entity. English is appropriately addressed. The biological and adoptive parents from
Although these regulations do not definition clarifies that in all direct arbitrary decisions by educational
specifically define nonprofit, the contact with the child (including an officials who lack the legal authority to
definition in 34 CFR § 77.1 applies to evaluation of the child), native language make educational decisions for the child
these regulations. In order to eliminate means the language normally used by and to ensure that when no biological or
any confusion on this issue, we will the child and not that of the parents, if adoptive parent is available, a person
revise the definition of LEA to reflect there is a difference between the two. with a long-term relationship with, and
that a public elementary or secondary The definition also clarifies that for commitment to, the child has decision-
charter school that is established as its individuals with deafness or blindness, making authority.

own LEA under State law must be a or for individuals with no written Discussion: Congress changed the
nonprofit entity. language, the native language is the definition of parent in the Act. The
Changes: For clarity, we have revised mode of communication that is definition of parent in these regulations
§ 300.28(b)(2) by inserting the term normally used by the individual (such reflects the revised statutory definition
‘‘nonprofit’’ before ‘‘charter school that as sign language, Braille, or oral of parent in section 602(23) of the Act.



The Department understands the regulations or in contractual agreements youth (and thus prohibited from serving
concerns expressed by the commenters, between a State or local entity and a as a surrogate parent), provided that
but believes that the changes requested foster parent, and should be accorded such a role is temporary until a
would not be consistent with the intent similar deference. We believe it is surrogate parent can be appointed who
of the statutory changes. In changing the essential for LEAs to have knowledge of meets the requirements for a surrogate
definition of parent in the Act, Congress State laws, regulations, and any parent in § 300.519(d). This provision is
incorporated some of the wording from contractual agreements between a State included in § 300.519(f), regarding
the current regulations and did not or local entity and a foster parent to surrogate parents. Therefore, we do not
incorporate in the new definition of ensure that the requirements in believe it is necessary to add
parent, the current foster parent § 300.30(a)(2) are properly ‘‘temporary parent’’ to the definition of
language referenced by the commenters. implemented. States and LEAs should parent in § 300.30.
Changes: None. develop procedures to make this Changes: None.
Comment: One commenter information more readily and easily Comment: A few commenters stated
recommended allowing a foster parent available so that LEAs do not have to that the definition of parent is
who does not have a long-term engage in extensive fact finding each confusing, especially in light of the
relationship to be the parent, if a court, time a child with a foster parent enrolls definition of ward of the State in new
after notifying all interested parties, in a school. § 300.45 (proposed § 300.44) and the
determines that it is in the best interest Changes: None. LEA’s obligation to appoint a surrogate
of the child. Comment: One commenter stated that parent. These commenters stated that
Discussion: Section 300.30(b)(2) the regulations need to clarify that § 300.30 should cross-reference the
clearly states that if a person is specified guardians ad litem do not meet the definition of ward of the State in new
in a judicial order or decree to act as the definition of a parent except for wards § 300.45 (proposed § 300.44) and state
parent for purposes of § 300.30, that of the State where consent for the initial that the appointed surrogate parent for
person would be considered the parent evaluation has been given by an a child who is a ward of the State is the
under Part B of the Act. individual appointed by the judge to parent.
Changes: None. represent the child in the educational Discussion: Section 615(b)(2) of the
Comment: One commenter stated that decisions concerning the child. Act does not require the automatic
§ 300.30(a)(2) withdraws the rights of Discussion: We agree that guardians appointment of a surrogate parent for
biological parents under the Act without with limited appointments that do not every child with a disability who is a
due process of law. qualify them to act as a parent of the ward of the State. States and LEAs must
Discussion: We do not agree with the child generally, or do not authorize ensure that the rights of these children
commenter. If more than one person is them to make educational decisions for are protected and that a surrogate parent
attempting to act as a parent, the child, should not be considered to is appointed, if necessary, as provided
§ 300.30(b)(1) provides that the be a parent within the meaning of these in § 300.519(b)(1). If a child who is a
biological or adoptive parent is regulations. What is important is the ward of the State already has a person
presumed to be the parent if that person legal authority granted to individuals who meets the definition of parent in
is attempting to act as the parent under appointed by a court, and not the term § 300.30, and that person is willing and
§ 300.30, unless the biological or used to identify them. Whether a person able to assume the responsibilities of a
adoptive parent does not have legal appointed as a guardian ad litem has the parent under the Act, a surrogate parent
authority to make educational decisions requisite authority to be considered a might not be needed. Accordingly, we
for the child, or there is a judicial order parent under this section depends on do not believe it is necessary to make
or decree specifying some other person State law and the nature of the person’s the changes suggested by the
to act as a parent under Part B of the appointment. We will revise commenters.
Act. We do not believe that provisions § 300.30(a)(3) to clarify that a guardian Changes: None.
regarding lack of legal authority or must be authorized to act as the child’s Comment: One commenter expressed
judicial orders or decrees would apply parent generally or must be authorized concern that public agencies will
unless there has already been a to make educational decisions for the require biological or adoptive parents to
determination, through appropriate child in order to fall within the affirmatively assert their rights or to take
legal processes, that the biological definition of parent. action in order to be presumed to be the
parent should not make educational Changes: We have added language in parent. The commenter requested
decisions for the child or that another § 300.30(a)(3) to clarify when a guardian clarifying in § 300.30(b)(1) that
person has been ordered to serve as the can be considered a parent under the biological or adoptive parents do not
parent. Act. have to take affirmative steps in order
Changes: None. Comment: One commenter requested for the presumption to apply.
Comment: One commenter stated that adding a ‘‘temporary parent’’ appointed Discussion: The biological or adoptive
§ 300.30(a)(2) is unwieldy and difficult in accordance with sections 615(b)(2) or parent would be presumed to be the
to implement because it requires 639(a)(5) of the Act to the definition of parent under these regulations, unless a
extensive fact finding by the LEA to parent. question was raised about their legal
determine whether any contractual Discussion: There is nothing in the authority. There is nothing in the Act
obligations would prohibit the foster Act that would prevent a temporary that requires the biological or adoptive
parent from acting as a parent. surrogate parent from having all the parent to affirmatively assert their rights
Discussion: The statutory language rights of a parent. Note 89 of the Conf. to be presumed to be the parent. We
concerning the definition of parent was Rpt., p. 35810, provides that appropriate continue to believe that § 300.30(b)(1) is
changed to permit foster parents to be staff members of emergency shelters, clear and, therefore, will not make the

considered a child’s parent, unless State transitional shelters, independent living changes requested by the commenters.
law prohibits a foster parent from programs, and street outreach programs Changes: None.
serving as a parent. The language in the would not be considered to be Comment: Some commenters
regulations also recognizes that similar employees of agencies involved in the recommended removing ‘‘when
restrictions may exist in State education or care of unaccompanied attempting to act as a parent under this



part’’ in § 300.30(b)(1). A few It recognizes the priority of the would be determined to be the parent.
commenters stated that there is no biological or adoptive parent and the It was intended to add clarity about who
explanation of what it means for a authority of the courts to make would be designated a parent when
biological parent to ‘‘attempt to act as a decisions, and does not leave these there are competing individuals under
parent.’’ Another commenter stated that decisions to school administrators. § 300.30(a)(1) through (4) who could be
the regulations do not set any guidelines The phrase ‘‘attempting to act as a considered a parent for purposes of this
for determining how a public agency parent’’ is generally meant to refer to part. It is not necessary to specify or
decides if a biological or adoptive situations in which an individual limit this language to provide that the
parent is attempting to act as a parent. attempts to assume the responsibilities judicial decree or order applies to
One commenter stated ‘‘attempting to of a parent under the Act. An individual specific situations, such as divorce or
act’’ would require LEAs to make may ‘‘attempt to act as a parent’’ under custody cases. However, it should not
determinations about a biological the Act in many situations; for example, authorize courts to appoint individuals
parent’s decision-making authority and if an individual provides consent for an other than those identified in
this should be left up to courts to evaluation or reevaluation, or attends an § 300.30(a)(1) through (4) to act as
determine. One commenter stated that IEP Team meeting as the child’s parent. parents under this part. Specific
the regulations permit multiple persons We do not believe it is necessary or authority for court appointment of
to act as a child’s parent and do not possible to include in these regulations individuals to provide consent for
adequately set forth a process to the numerous situations in which an initial evaluations in limited
determine who should be identified as individual may ‘‘attempt to act as a circumstances is in § 300.300(a)(2)(c).
the actual parent for decision-making parent.’’ Authority for court appointment of a
purposes. The commenter further stated Section 300.30(b)(1) provides that the surrogate parent in certain situations is
that the regulations do not set out a biological or adoptive parent is in § 300.519(c).
procedure or a timeframe by which presumed to be the parent if that person Changes: We have revised
public agency officials should is attempting to act as the parent under § 300.30(b)(2) to limit its application to
determine if a biological parent has § 300.30, unless the biological or individuals identified under
retained the right to make educational adoptive parent does not have legal § 300.30(a)(1) through (4) and have
decisions for his or her child. authority to make educational decisions deleted the phrase ‘‘except that a public
One commenter stated that the for the child, or there is a judicial order agency that provides education or care
definition of parent gives school or decree specifying some other person for the child may not act as the parent’’
districts excessive power; for example a to act as a parent under Part B of the as unnecessary.
school could appoint a surrogate parent Act. Section 300.30(b)(2) provides that if Comment: One commenter
if the foster parent was excessively a person (or persons) is specified in a recommended allowing foster parents to
demanding. The commenter further judicial order or decree to act as the act as parents only when the birth
stated that a clearer order of priority and parent for purposes of § 300.30, that parent’s rights have been extinguished
selection mechanism with judicial person would be the parent under Part or terminated. A few commenters
oversight needs to be in place so that B of the Act. We do not believe that it requested that the regulations clarify the
school districts cannot ‘‘parent shop’’ is necessary for these regulations to circumstances under which a foster
for the least assertive individual, and so establish procedures or a timeline for a parent can take over educational
that relatives, foster parents, social public agency to determine whether a decision making. One commenter stated
workers, and others involved with the biological parent has retained the right that allowing a foster parent to act as a
child will know who has educational to make educational decisions for a parent would disrupt the special
decision making authority. child. Such procedures and timelines education process.
One commenter questioned whether will vary depending on how judicial Discussion: Under § 300.30(a)(2), a
§ 300.30(b) helps identify parents or orders or decrees are routinely handled foster parent can be considered a parent,
confuses situations in which the person in a State or locality, and are best left unless State law, regulations, or
to be designated the parent is in dispute. to State and local officials to determine. contractual obligations with a State or
Another commenter stated that the Changes: None. local entity prohibit a foster parent from
requirements in § 300.30(b) place the Comment: A few commenters acting as a parent. However, in cases
responsibility of determining who recommended modifying § 300.30(b)(2) where a foster parent and a biological or
serves as the parent of a child in foster to clarify that a court has the discretion adoptive parent attempt to act as the
care directly on the shoulders of school to decide who has the right to make parent, § 300.30(b)(1) clarifies that the
administrators who are not child educational decisions for a child. One biological or adoptive parent is
welfare experts. The commenter commenter recommended clarifying presumed to be the parent, unless the
recommended that a foster parent that the judicial decree referred to in biological or adoptive parent does not
automatically qualify as a parent when § 300.30(b)(2) relates specifically to have legal authority to make educational
the rights of the child’s biological divorce situations, rather than situations decisions for the child. Section
parents have been extinguished and the involving children who are wards of the 300.30(b)(2) further clarifies that if a
foster parent has a long-term State. Another commenter stated that person or persons such as a foster parent
relationship with the child, no conflict § 300.30(b)(2) appears to be aimed at or foster parents is specified in a
of interest, and is willing to make situations where the court has judicial order or decree to act as the
educational decisions. designated a parent, such as in a parent for purposes of § 300.30, that
Discussion: Section 300.30(b) was custody decree, and that it is not clear person would be the parent under Part
added to assist schools and public what the provision adds. B of the Act. We do not believe that
agencies in determining the appropriate Discussion: Section 300.30(b)(2) further clarification is necessary.

person to serve as the parent under Part specifically states that if a judicial Changes: None.
B of the Act in those difficult situations decree or order identifies a person or Comment: A few commenters
in which more than one individual is persons to act as the parent of a child recommended that ‘‘extinguished under
‘‘attempting to act as a parent’’ and or to make educational decisions on State law’’ be defined to mean both
make educational decisions for a child. behalf of a child, then that person temporary and permanent termination



of parental rights to make educational foster parent when a child is in foster apply to both parents, unless a court
decisions because this would allow care and the foster parent is not order or State law specifies otherwise.
courts to make more timely decisions prohibited by the State from acting as a Changes: None.
regarding the role of a parent and not parent. Comment: A few commenters
feel bound to wait for a full termination Discussion: Section 300.30(b)(1) states recommended clarifying in the
of parental rights. that when more than one party is regulations that a private agency that
Discussion: The phrase ‘‘extinguished qualified under § 300.30(a) to act as the contracts with a public agency for the
under State law’’ is not used in the Act parent, the biological or adoptive parent education or care of the child may not
or these regulations. The phrase was is presumed to be the parent (unless a act as a parent.
used in the definition of parent in judicial decree or order identifies a Discussion: A private agency that
current § 300.20(b)(1). The comparable specific person or persons to act as the contracts with a public agency for the
provision in these regulations is in parent of a child). The biological or education or care of the child, in
§ 300.30(b)(1), which refers to situations adoptive parent has all the rights and essence, works for the public agency,
in which the ‘‘biological or adoptive responsibilities of a parent under the and therefore, could not act as a parent
parent does not have legal authority to Act, and the LEA must provide notice under the Act. We do not believe it is
make educational decisions for the to the parent, accommodate his or her necessary to regulate on this matter.
child.’’ We do not believe that either of schedule when arranging meetings, and Changes: None.
these phrases affects the timeliness of involve the biological or adoptive parent
Parent Training and Information Center
decision making by courts regarding in the education of the child with a
(§ 300.31)
parental rights. disability. Thus, if a child is in foster
Changes: None. care (and the foster parent is not Comment: One commenter requested
Comment: Some commenters stated prohibited by the State from acting as a describing a parent training and
that ‘‘consistent with State law’’ should parent) and the biological or adoptive information center (PTI) and a
be included in § 300.30(b)(2) in order to parent is attempting to act as a parent, community parent resource center
honor local laws already in place to the biological or adoptive parent is (CPRC) in the regulations, rather than
protect these children. presumed to be the parent unless the referencing section 671 or 672 of the
Discussion: We do not believe the biological or adoptive parent does not Act.
change recommended by the have legal authority to make educational Discussion: We do not believe it is
commenters is necessary. Courts issue decisions for the child or a judicial necessary to include these descriptions
decrees and orders consistent with decree or order identifies a specific in the regulations. Section 671 of the
applicable laws. person or persons to act as the parent of Act describes the program requirements
Changes: None. a child. for a PTI and section 672 of the Act
Comment: One commenter stated that Changes: None. describes the program requirements for
it would not be wise to completely Comment: A few commenters stated a CPRC. These sections describe the
exclude an agency involved in the that it is unclear when or under what activities required of PTIs and CPRCs, as
education or care of the child from circumstances a biological or adoptive well as the application process for
serving as a parent because situations in parent ceases or surrenders their rights discretionary funding under Part D of
which an LEA acts as a parent are very to a foster parent to make educational the Act, and would unnecessarily add to
rare and only occur under very unusual decisions for a child. One commenter the length of the regulations.
circumstances. stated that the regulations should define Changes: None.
Discussion: The exclusion of an clearly the situations when this would Comment: One commenter stated that,
agency involved in the education or care occur and the level of proof that must in order for a State or LEA to be
of the child from serving as a parent is be shown by the party seeking to make considered for funding under the Act,
consistent with the statutory prohibition educational decisions on behalf of a the regulations should require
that applies to surrogate parents in child. The commenter stated that only partnerships with the PTIs and the
sections 615(b)(2) and 639(a)(5) of the under the most extreme and compelling CPRCs, as well as input from PTIs and
Act. circumstances should a court be able to CPRCs on assessing State and local
Changes: None. appoint another individual to take the needs, and developing and
Comment: One commenter place of a biological or adoptive parent. implementing a plan to address State
recommended that the regulations Discussion: It would be inappropriate and local needs.
clarify the responsibilities of the LEA and beyond the authority of the Discussion: We disagree with the
when a biological or adoptive parent Department to regulate on the commenter. There is nothing in the Act
and a foster parent attempt to act as the termination of parental rights to make that requires States or LEAs, as a
parent. Although the regulations state educational decisions. It is the condition of funding, to obtain input
that the biological or adoptive parent responsibility of a court to decide from PTIs and CPRCs in assessing needs
must be presumed to be the parent whether to appoint another person or or developing and implementing a plan
unless the biological or adoptive parent persons to act as a parent of a child or to address State or local needs. States
has been divested of this authority by a to make educational decisions on behalf and LEAs are free to do so, but it is not
court, the commenter stated that the of a child. a requirement for funding.
regulations are not clear as to whether Changes: None. Changes: None.
the LEA has the duty to notify the Comment: One commenter requested
biological or adoptive parent, clarifying to whom LEAs must provide Public Agency (§ 300.33)
accommodate his or her schedule, or notice, or obtain consent in situations Comment: One commenter stated that
otherwise take steps to facilitate the where there are disputes between the term public agency is not in the Act

biological or adoptive parent’s biological or adoptive parents (e.g., and noted that no State has created a
participation. when parents separate or divorce). new type of public education agency
One commenter recommended Discussion: In situations where the beyond LEAs and SEAs. The commenter
clarifying the relative rights of a parents of a child are divorced, the stated that including the definition of
biological or adoptive parent and a parental rights established by the Act public agency in the regulations,



therefore, raises concerns regarding the number of commenters recommended types of specialists also often provide
responsibility and authority for future adding art, music, and dance therapy. them.
special education services. One commenter recommended adding Discussion: The list of related services
Discussion: The definition of public services to ensure that medical devices, in § 300.34 is consistent with section
agency refers to all agencies responsible such as those used for breathing, 602(26) of the Act and, as noted above,
for various activities under the Act. The nutrition, and other bodily functions, we do not believe it is necessary to add
terms ‘‘LEA’’ or ‘‘SEA’’ are used when are working properly. One commenter additional related services to this list.
referring to a subset of public agencies. requested adding programming and We agree with the commenter that there
We disagree that the definition raises training for parents and staff as a related may be many professionals in a school
concerns about the responsibility and service. district who are involved in the
authority for future educational services A few commenters requested development of positive behavioral
because the term public agency is used clarification on whether auditory interventions. Including the
only for those situations in which a training and aural habilitation are development of positive behavioral
particular regulation does not apply related services. One commenter asked interventions in the description of
only to SEAs and LEAs. whether hippotherapy should be activities under psychological services
During our internal review of the included as a related service. Other (§ 300.34(b)(10)) and social work
NPRM, we found several errors in the commenters recommended adding services in schools (§ 300.34(b)(14)) is
definition of public agency. Our intent language in the regulations stating that not intended to imply that school
was to use the same language in current the list of related services is not psychologists and social workers are
§ 300.22. We will, therefore, correct exhaustive. A few commenters asked automatically qualified to perform these
these errors to be consistent with whether a service is prohibited if it is services or to prohibit other qualified
current § 300.22. Additionally, we will not listed in the definition of related personnel from providing these services,
clarify that a charter school must be a services. consistent with State requirements.
nonprofit charter school. As noted in Discussion: Section 300.34(a) and Changes: None.
the discussion regarding § 300.28(b)(2), section 602(26) of the Act state that
Exception; Services That Apply to
we clarified that a charter school related services include other
Children With Cochlear Implants
established as its own LEA under State supportive services that are required to
(§ 300.34(b))
law, must be a nonprofit charter school. assist a child with a disability to benefit
from special education. We believe this Comment: Many commenters opposed
Changes: We have removed the
clearly conveys that the list of services the exclusion of surgically implanted
phrase ‘‘otherwise included as’’ the devices from the definition of related
second time it appears, and replaced it in § 300.34 is not exhaustive and may
include other developmental, corrective, services. Many commenters stated that
with ‘‘a school of an’’ in § 300.33. We the Act does not exclude the
have also changed ‘‘LEAs’’ to ‘‘LEA’’ or supportive services if they are
required to assist a child with a maintenance or programming of
and ‘‘ESAs’’ to ‘‘ESA’’ the third time surgically implanted devices from the
these abbreviations appear in § 300.33. disability to benefit from special
education. It would be impractical to definition of related services, and that
Related Services (§ 300.34) list every service that could be a related the regulations should specifically state
service, and therefore, no additional that related services includes the
Related Services, General (§ 300.34(a))
language will be added to the provision of mapping services for a
Comment: One commenter requested regulations. child with a cochlear implant. A few
defining related services as enabling a Consistent with §§ 300.320 through commenters stated that the issue of
child with a disability to receive FAPE 300.328, each child’s IEP Team, which mapping cochlear implants needs to be
in the LRE. includes the child’s parent along with clarified so that schools and parents
Discussion: The definition of related school officials, determines the understand who is responsible for
services is consistent with section instruction and services that are needed providing this service. One commenter
601(26) of the Act, which does not refer for an individual child to receive FAPE. requested that the regulations clearly
to LRE. The Department believes that In all cases concerning related services, specify that optimization of a cochlear
revising the regulations as requested the IEP Team’s determination about implant is a medical service and define
would inappropriately expand the appropriate services must be reflected in mapping as an audiological service.
definition in the Act. Furthermore, the the child’s IEP, and those listed services Discussion: The term ‘‘mapping’’
regulations in § 300.114(a)(2)(ii) already must be provided in accordance with refers to the optimization of a cochlear
prevent placement of a child outside the the IEP at public expense and at no cost implant and is not included in the
regular education environment unless to the parents. Nothing in the Act or in definition of related services.
the child cannot be satisfactorily the definition of related services Specifically, ‘‘mapping’’ and
educated in the regular education requires the provision of a related ‘‘optimization’’ refer to adjusting the
environment with the use of service to a child unless the child’s IEP electrical stimulation levels provided by
supplementary aids and services. Team has determined that the related the cochlear implant that is necessary
Therefore, we see no need to make the service is required in order for the child for long-term post-surgical follow-up of
change suggested by the commenter. to benefit from special education and a cochlear implant. Although the
Changes: None. has included that service in the child’s cochlear implant must be properly
Comment: We received numerous IEP. mapped in order for the child to hear
requests to revise § 300.34 to add Changes: None. well in school, the mapping does not
specific services in the definition of Comment: One commenter have to be done in school or during the
related services. A few commenters recommended adding behavior school day in order for it to be effective.

recommended including marriage and interventions to the list of related The exclusion of mapping from the
family therapy. One commenter services, stating that while positive definition of related services reflects the
recommended adding nutrition therapy behavioral interventions and supports language in Senate Report (S. Rpt.) No.
and another commenter recommended are often provided by one of the 108–185, p. 8, which states that the
adding recreation therapy. A significant professionals listed in § 300.34(c), other Senate committee did not intend that



mapping a cochlear implant, or even the mapping as a related service preclude a device, make certain that it is turned on,
costs associated with mapping, such as child with a cochlear implant from or help the child to learn to listen with
transportation costs and insurance co- receiving the related services (e.g., the cochlear implant. One commenter
payments, be the responsibility of a speech and language services) that are stated that children with cochlear
school district. These services and costs necessary for the child to benefit from implants should have the same services
are incidental to a particular course of special education services. As the as children who use a hearing aid when
treatment chosen by the child’s parents commenters point out, a child with a the battery needs changing or
to maximize the child’s functioning, and cochlear implant may still require equipment breaks down.
are not necessary to ensure that the related services, such as speech and One commenter stated that § 300.34(b)
child is provided access to education, language therapy, to process spoken is confusing and should explicitly state
regardless of the child’s disability, language just as other children with that the exception of the optimization of
including maintaining health and safety hearing loss who use hearing aids may device functioning, maintenance of the
while in school. We will add language need those services and are entitled to device, or replacement of the device is
in § 300.34(b) to clarify that mapping a them under the Act if they are required limited to surgically implanted devices.
cochlear implant is an example of for the child to benefit from special The commenter stated that the language
device optimization and is not a related education. Each child’s IEP Team, could erroneously lead to an
service under the Act. which includes the child’s parent along interpretation that this exception is
Changes: We have added ‘‘(e.g., with school officials, determines the applicable to all medical devices. One
mapping)’’ following ‘‘functioning’’ in related services, and the amount of commenter expressed concern that this
§ 300.34(b) to clarify that mapping a services, that are required for the child misinterpretation could put insulin
surgically implanted device is not a to benefit from special education. It is pumps and other medical devices that
related service under the Act. important that the regulations clearly are required for the health of the child
Comment: A significant number of state that a child with a cochlear in the same category as cochlear
commenters stated that children with implant or other surgically implanted implants.
cochlear implants need instruction in medical device is entitled to related A few commenters stated that it is
listening and language skills to process services that are determined by the important to clarify that excluding the
spoken language, just as children with child’s IEP Team to be necessary for the optimization of device functioning and
hearing loss who use hearing aids, and child to benefit from special education. the maintenance of the device should
requested that the regulations clarify Therefore, we will add language in not be construed to exclude medical
that excluding the optimization of § 300.34(b) to clarify that a child with a devices and services that children need
device functioning from the definition cochlear implant or other surgically to assist with breathing, nutrition, and
of related services does not impact a implanted medical device is entitled to other bodily functions while the child is
child’s access to related services such as those related services that are required involved with education and other
speech and language therapy, assistive for the child to benefit from special school-related activities.
listening devices, appropriate classroom education, as determined by the child’s One commenter stated that a school
acoustics, auditory training, educational IEP Team. nurse, aide, teacher’s aide, or any other
interpreters, cued speech transliterators, Changes: We have reformatted person who is qualified and trained
and specialized instruction. § 300.34(b) and added a new paragraph should be allowed to monitor and
One commenter requested that the (2) to clarify that a child with a cochlear maintain, as necessary, a surgically
regulations explicitly state whether a implant or other surgically implanted implanted device.
public agency is required to provide device is entitled to the related services Discussion: A cochlear implant is an
more speech and language services or that are determined by the child’s IEP electronic device surgically implanted
audiology services to a child with a Team to be required for the child to to stimulate nerve endings in the inner
cochlear implant. Another commenter benefit from special education. We have ear (cochlea) in order to receive and
requested that the regulations clarify also added the phrase ‘‘services that process sound and speech. The device
that optimization only refers to access to apply to children with surgically has two parts, one that is surgically
assistive technology, such as assistive implanted devices, including cochlear implanted and attached to the skull and,
listening devices (e.g., personal implants’ to the heading in § 300.34(b). the second, an externally worn speech
frequency modulation (FM) systems) Comment: One commenter expressed processor that attaches to a port in the
and monitoring and troubleshooting of concern that excluding the optimization implant. The internal device is intended
the device function that is required of device functioning and maintenance to be permanent.
under proper functioning of hearing of the device as related services will Optimization or ‘‘mapping’’ adjusts or
aids. establish different standards for serving fine tunes the electrical stimulation
Discussion: Optimization generally children with cochlear implants versus levels provided by the cochlear implant
refers to the mapping necessary to make children who use hearing aids and other and is changed as a child learns to
the cochlear implant work properly and external amplification devices, and discriminate signals to a finer degree.
involves adjusting the electrical recommended clarifying that routine Optimization services are generally
stimulation levels provided by the monitoring of cochlear implants and provided at a specialized clinic. As we
cochlear implant. The exclusion of other surgically implanted devices to discussed previously regarding § 300.34,
mapping as a related service is not ensure that they are functioning in a optimization services are not a covered
intended to deny a child with a safe and effective manner is permitted service under the Act. However, a
disability assistive technology (e.g., FM under the Act. public agency still has a role in
system); proper classroom acoustical A few commenters stated that some providing services and supports to help
modifications; educational support schools are interpreting the exclusion of children with cochlear implants.

services (e.g., educational interpreters); device optimization, functioning, and Particularly with younger children or
or routine checking to determine if the maintenance to mean that they do not children who have recently obtained
external component of a surgically have to help the child change a battery implants, teachers and related services
implanted device is turned on and in the externally worn speech processor personnel frequently are the first to
working. Neither does the exclusion of connected with the surgically implanted notice changes in the child’s perception



of sounds that the child may be missing. settings are correct, and the cable is Audiology (§ 300.34(c)(1))
This may manifest as a lack of attention connected, in much the same manner as
Comment: One commenter stated that
or understanding on the part of the they are taught to make sure a hearing
the definition of audiology does not
child or frustration in communicating. aid is properly functioning. To allow a
reflect current audiology practice in
The changes may indicate a need for child to sit in a classroom when the
schools and recommended new
remapping, and we would expect that child’s hearing aid or cochlear implant
language to include services for children
school personnel would communicate is not functioning is to effectively
with auditory-related disorders,
with the child’s parents about these exclude the child from receiving an
issues. To the extent that adjustments to appropriate education. Therefore, we provision of comprehensive audiologic
the devices are required, a specially believe it is important to clarify that a habilitation and rehabilitation services;
trained professional would provide the public agency is responsible for the consultation and training of teachers
remapping, which is not considered the routine checking of the external and other school staff; and involvement
responsibility of the public agency. components of a surgically implanted in classroom acoustics.
In many ways, there is no substantive device in much the same manner as a Discussion: The definition of
difference between serving a child with public agency is responsible for the audiology is sufficiently broad to enable
a cochlear implant in a school setting proper functioning of hearing aids. audiologists to be involved in the
and serving a child with a hearing aid. The public agency also is responsible activities described by the commenter.
The externally worn speech processor for providing services necessary to We do not believe it is necessary to
connected with the surgically implanted maintain the health and safety of a child change the definition to add the specific
device is similar to a hearing aid in that while the child is in school, with functions recommended by the
it must be turned on and properly breathing, nutrition, and other bodily commenter.
functioning in order for the child to functions (e.g., nursing services, Changes: None.
benefit from his or her education. suctioning a tracheotomy, urinary Comment: A few commenters
Parents of children with cochlear catheterization) if these services can be requested adding mapping services for a
implants and parents of children with provided by someone who has been child with a cochlear implant to the
hearing aids both frequently bring to trained to provide the service and are definition of audiology.
school extra batteries, cords, and other not the type of services that can only be Discussion: For the reasons discussed
parts for the hearing aids and externally provided by a licensed physician. previously in this section, § 300.34(b)
worn speech processors connected with (Cedar Rapids Community School specifically excludes the optimization of
the surgically-implanted devices, District v. Garret F., 526 U.S. 66 (1999)). a surgically implanted device from the
especially for younger children. The Changes: We have added new definition of related services. This
child also may need to be positioned so § 300.113 to cover the routine checking includes mapping of a cochlear implant.
that he or she can directly see the of hearing aids and external components Changes: None.
teacher at all times, or may need an FM of surgically implanted devices. The Comment: One commenter stated that
amplification system such as an audio requirement for the routine checking of the definition of audiology appears to be
loop. hearing aids has been removed from limited to children who are deaf or hard
For services that are not necessary to proposed § 300.105 and included in of hearing, and recommended adding
provide access to education by new § 300.113(a). The requirement for
language to allow children without
maintaining the health or safety of the routine checking of an external
expressive speech to receive such
child while in school, the distinguishing component of a surgically implanted
services.
factor between those services that are medical device has been added as new
not covered under the Act, such as § 300.113(b). The requirements for Discussion: The term audiology, as
mapping, and those that are covered, assistive technology devices and defined in § 300.34(c)(1), focuses on
such as verifying that a cochlear implant services remain in § 300.105 and the identifying and serving children who
is functioning properly, in large heading has been changed to reflect this are deaf or hard of hearing. It is not
measure, is the level of expertise change. We have also included a necessary to add language in the
required. The maintenance and reference to new § 300.113(b) in new regulations regarding children without
monitoring of surgically implanted § 300.34(b)(2). expressive speech because the
devices require the expertise of a Comment: A few commenters stated determining factor of whether audiology
licensed physician or an individual that specialized cochlear implant services are appropriate for a child is
with specialized technical expertise audiologists who are at implant centers whether the child may be deaf or hard
beyond that typically available from or closely associated with them should of hearing, not whether a child has
school personnel. On the other hand, program cochlear implants. One expressive speech.
trained lay persons or nurses can commenter stated that, typically, school Changes: None.
routinely check an externally worn audiologists and school personnel do Early Identification and Assessment of
processor connected with a surgically not have the specialized experience to Disabilities (§ 300.34(c)(3))
implanted device to determine if the program cochlear implants.
batteries are charged and the external Discussion: The personnel with the Comment: Some commenters noted
processor is operating. (As discussed specific expertise or licensure required that ‘‘early identification and
below, the Act does require public for the optimization (e.g., mapping) of assessment of disabilities’’ was removed
agencies to provide those services that surgically implanted devices are from the list of related services in
are otherwise related services and are decisions to be made within each State § 300.34(a).
necessary to maintain a child’s health or based on applicable State statutes and Discussion: ‘‘Early identification and
safety in school even if those services licensing requirements. Since mapping assessment of disabilities’’ was

require specialized training.) Teachers is not covered under the Act, personnel inadvertently omitted from the list of
and related services providers can be standards for individuals who provide related services in § 300.34(a).
taught to first check the externally worn mapping services are beyond the scope Changes: ‘‘Early identification and
speech processor to make sure it is of these regulations. assessment’’ will be added to the list of
turned on, the volume and sensitivity Changes: None. related services in § 300.34(a).



Interpreting Services (§ 300.34(c)(4)) Changes: We have added language to language pathology services, consistent
§ 300.34(c)(4)(i) to include sign language with § 300.34(c)(15).
Comment: One commenter transliteration. Changes: None.
recommended that the definition of Comment: A few commenters Comment: Some commenters
interpreting services requires that such recommended changing the definition recommended including
services be provided by a qualified of interpreting services to clarify that the communication access real-time
interpreter who is able to effectively, need for interpreting services must be transcription (CART) services in the
accurately, and impartially use any based on a child’s disability and not definition of interpreting services
specialized vocabulary, both receptively degree of English proficiency. because these services are being used
and expressively. A few commenters Discussion: The definition of with increasing frequency in
strongly recommended requiring interpreting services clearly states that postsecondary education and
interpreting services to be provided by interpreting services are used with employment settings, and familiarity
qualified interpreters to ensure children who are deaf or hard of and experience with CART services may
equivalent communication access and hearing. The nature and type of better prepare children who are deaf or
effective communication with, and for, interpreting services required for hard of hearing to transition to higher
children who are deaf or hard of children who are deaf or hard of hearing education and employment
hearing. The commenter stated that and also limited in English proficiency environments. A few commenters stated
personnel standards for interpreters are to be determined by reference to the that the definition of interpreting
vary greatly across SEAs and LEAs, and Department’s regulations and policies services appears to limit interpreting
requiring qualified interpreters would regarding students with limited English services to the methods listed in
be consistent with the definition of proficiency. For example, the § 300.34(c)(4), which exclude tactile and
other related services included in these Department’s regulations in 34 CFR part close vision interpreting for children
regulations such as physical therapy 100, implementing Title VI of the Civil who are deaf-blind.
and occupational therapy. Rights Act of 1964, 42 U.S.C. 2000d, Discussion: Although the definition of
One commenter recommended require that recipients of Federal interpreting services is written broadly
defining the function of an interpreter as financial assistance ensure meaningful to include other types of interpreting
a person who facilitates communication access to their programs and activities services, we believe that it is important
between children who are deaf or hard by students who are limited English to include in the definition services in
of hearing, staff, and children, proficient, including those who are deaf which oral communications are
regardless of the job title. or hard of hearing. The requirement to transcribed into real-time text.
Discussion: Section 300.156, provide services to students who are Therefore, we are adding language to
consistent with section 612(a)(14) of the limited English proficient and others is § 300.34(c)(4) to refer to transcription
Act, clarifies that it is the responsibility also governed by various Department services and include several examples
of each State to establish personnel policy memoranda including the of transcription systems used to provide
qualifications to ensure that personnel September 27, 1991 memorandum, such services.
necessary to carry out the purposes of ‘‘Department of Education Policy We also believe that it is important
the Act are appropriately and Update on Schools’ Obligations Toward that the definition of interpreting
adequately prepared and trained and National Origin Minority Students With services include services for children
have the content knowledge and skills Limited English Proficiency’’; the who are deaf-blind. However, because
to serve children with disabilities. It is December 3, 1985 guidance document, there are many types of interpreting
not necessary to add more specific ‘‘The Office for Civil Rights’ Title VI services for children who are deaf-blind,
functions of individuals providing Language Minority Compliance in addition to tactile and close vision
interpreting services, as recommended Procedures’’; and the May 1970 interpreting services, we will add a
by the commenters. States are memorandum to school districts, more general statement to include
appropriately given the flexibility to ‘‘Identification of discrimination and interpreting services for children who
determine the qualifications and Denial of Services on the Basis of are deaf-blind, rather than listing all the
responsibilities of personnel, based on National Origin,’’ 35 FR 11595. These different methods that might be used for
the needs of children with disabilities in documents are available at http:// children who are deaf-blind.
the State. www.lep.gov. We do not believe Changes: We have restructured
additional clarification is necessary. § 300.34(c)(4) and added ‘‘and
Changes: None. Changes: None. transcription services such as
Comment: A few commenters Comment: One commenter stated that communication real-time translation
recommended including American sign the definition of interpreting services (CART), C-Print, and TypeWell’’ to the
language and sign language systems in appears to be limited to children who definition of interpreting services in
the definition of interpreting services. are deaf or hard of hearing, and paragraph (c)(4)(i). We have also added
Discussion: The definition of recommended adding language to allow a new paragraph (c)(4)(ii) to include
interpreting services is sufficiently children without expressive speech to interpreting services for children who
broad to include American sign receive such services. are deaf-blind.
language and sign language systems, Discussion: Interpreting services, as
and therefore, will not be changed. We defined in § 300.34(c)(4), clearly states Medical Services (§ 300.34(c)(5))
believe it is important to include sign that interpreting services are used with Comment: One commenter stated that
language transliteration (e.g., translation children who are deaf and hard of the definition of medical services is not
systems such as Signed Exact English hearing. Therefore, a child who is not in the Act and recommended that the
and Contact Signing), in addition to sign deaf or hard of hearing, but who is definition be broader than the decision

language interpretation of another without expressive speech, would not in Cedar Rapids Community School
language (e.g., American sign language) be considered eligible to receive Dist. v. Garrett F., 526 U.S. 66 (1999),
in the definition of interpreting services, interpreting services as defined in which the definition appears to follow.
and will add this language to § 300.34(c)(4). However, such a child Discussion: The list of related services
§ 300.34(c)(4)(i). could be considered eligible for speech- in § 300.34(a) includes medical services



for diagnostic and evaluation purposes, specify who is qualified to provide Changes: None.
consistent with section 602(26) of the travel training instruction and stated
Physical Therapy (§ 300.34(c)(9))
Act. The Department continues to that it is critical that skills such as street
believe that using language from the Act crossing be taught correctly. Comment: One commenter
to define medical services is essential. Discussion: Section 300.156, recommended the definition of physical
Defining medical services more broadly, consistent with section 612(a)(14) of the therapy include related therapeutic
as recommended by the commenter, Act, requires each State to establish services for children with degenerative
would not be consistent with the Act. personnel qualifications to ensure that diseases.
Changes: None. personnel necessary to carry out the Discussion: We do not believe the
purposes of the Act are appropriately suggested change is necessary because
Orientation and Mobility Services the definition of physical therapy is
and adequately prepared and trained
(§ 300.34(c)(7)) broadly defined and could include
and have the content knowledge and
Comment: Several commenters skills to serve children with disabilities. therapeutic services for children with
supported including travel training in It is, therefore, the State’s responsibility degenerative diseases. It is the
the definition of orientation and to determine the qualifications that are responsibility of the child’s IEP Team to
mobility services and recommended necessary to provide travel training determine the special education and
adding a reference to the definition of instruction. related services that are necessary for a
travel training in new § 300.39(b)(4) Changes: None. child to receive FAPE. There is nothing
(proposed § 300.38(b)(4)). However, in the Act that prohibits the provision
other commenters stated that travel Parent Counseling and Training
(§ 300.34(c)(8)) of therapeutic services for children with
training should appear as a distinct degenerative diseases, if the IEP Team
related service and should not be Comment: A few commenters stated determines they are needed for an
included in the definition of orientation that the definition of parent counseling individual child and, thereby, includes
and mobility services because children and training in § 300.34(c)(8) is not the services in the child’s IEP.
who are blind and visually impaired included in the definition of related Changes: None.
receive this type of instruction from services in section 602(26)(A) of the Act Comment: One commenter stated that
certified orientation and mobility and, therefore, should not be included the definition of physical therapy in
specialists. One commenter stated that in the regulations. § 300.34(c)(9) is circular and requested
the regulations should specify that Discussion: Paragraphs (i) and (ii) of that a functional definition be provided.
travel training is for children with § 300.34(c)(8), regarding assisting Discussion: The definition of physical
cognitive or other disabilities. parents in understanding the special therapy has been in the regulations
Discussion: We believe that including needs of their child, and providing since 1977 and is commonly accepted
travel training in the definition of parents with information about child by SEAs, LEAs, and other public
orientation and mobility services may be development, respectively, are protected agencies. We do not believe it is
misinterpreted to mean that travel by section 607(b) of the Act, and cannot necessary to change the definition.
training is available only for children be removed. Section 300.34(c)(8)(iii), Changes: None.
who are blind or visually impaired or regarding helping parents acquire the
that travel training is the same as skills to allow them to support the Psychological Services (§ 300.34(c)(10))
orientation and mobility services. We implementation of their child’s IEP or Comment: One commenter
will, therefore, remove travel training IFSP, was added in the 1999 regulations recommended that the definition of
from § 300.34(c)(7). This change, to recognize the more active role of psychological services include strategies
however, does not diminish the services parents as participants in the education to facilitate social-emotional learning.
that are available to children who are of their children. Although not included Discussion: We do not believe the
blind or visually impaired. in the Act, we believe it is important to definition should be revised to add a
Travel training is defined in new retain this provision in these regulations specific reference to the strategies
§ 300.39(b)(4) (proposed § 300.38(b)(4)) so that there is no question that parent recommended by the commenter. The
for children with significant cognitive counseling and training includes definition of psychological services is
disabilities and any other children with helping parents acquire skills that will sufficiently broad to enable
disabilities who require this instruction, help them support the implementation psychologists to be involved in
and, therefore, would be available for of their child’s IEP or IFSP. strategies to facilitate social-emotional
children who are blind or visually Changes: None. learning.
impaired, as determined by the child’s Comment: One commenter Changes: None.
IEP Team. Travel training is not the recommended that the regulations Comment: One commenter stated that
same as orientation and mobility describe the responsibility of LEAs to unless the definition of psychological
services and is not intended to take the provide parent counseling and training. services includes research-based
place of appropriate orientation and Discussion: As with other related counseling, schools will argue that they
mobility services. services, an LEA only is responsible for are required to provide counseling
Changes: We have removed ‘‘travel providing parent counseling and services delivered by social workers
training instruction’’ from training if a child’s IEP Team because counseling is included in the
§ 300.34(c)(7)(ii) to avoid confusion determines that it is necessary for the definition of social work services in
with the definition of travel training in child to receive FAPE. To include this schools.
new § 300.39(b)(4) (proposed language in the definition of parent Discussion: We do not believe
§ 300.38(b)(4)), and to clarify that travel counseling and training, moreover, including research-based counseling in
training is not the same as orientation would be unnecessarily duplicative of the definition of psychological services

and mobility services and cannot take § 300.17(d), which states that FAPE is necessary. Including counseling in
the place of appropriate orientation and means special education and related the definition of social work services in
mobility services. services that are provided in conformity schools in § 300.34(c)(14) is intended to
Comment: One commenter with an IEP that meets the requirements indicate the types of personnel who
recommended that the regulations in §§ 300.320 through 300.324. assist in this activity and is not intended



either to imply that school social be provided by other qualified persons, services to children who are medically-
workers are automatically qualified to as well as a qualified school nurse, fragile.
perform counseling or to prohibit other because the majority of schools do not Discussion: It is unclear how adding
qualified personnel from providing have a school nurse on staff. One school nurse services to the definition of
counseling, consistent with State commenter requested that the related services affects services to
requirements. regulations clarify that schools can children who are medically fragile. As
Changes: None. continue to use registered nurses or defined in § 300.34(c)(13), school health
Comment: One commenter stated that other personnel to provide school nurse services and school nurse services are
other related services personnel, in services, consistent with State law. designed to enable a child with a
addition to school psychologists, should Another commenter stated that there is disability to receive FAPE as described
be permitted to develop and deliver well-established case law upholding the in the child’s IEP. A child who is
positive behavioral intervention obligation of an SEA and LEA to medically fragile and needs school
strategies. provide health-related services health services or school nurse services
Discussion: There are many necessary for a child to benefit from in order to receive FAPE must be
professionals who might also play a role special education. provided such services, as indicated in
in developing and delivering positive Discussion: School health services the child’s IEP.
behavioral intervention strategies. The was retained in the definition of related Changes: None.
standards for personnel who assist in services in § 300.34(a). However, the Comment: One commenter stated that
developing and delivering positive definition of school health services was the definition of school nurse services
behavioral intervention strategies will inadvertently removed in the NPRM. To should include services that enable a
vary depending on the requirements of correct this error, we will add school child with a disability to receive FAPE
the State. Including the development health services to the definition of in the LRE. Another commenter stated
and delivery of positive behavioral school nurse services and clarify that that school nurses can be extremely
intervention strategies in the definition school health services and school nurse supportive of children with disabilities
of psychological services is not intended services means health services that are receiving FAPE in the LRE and
to imply that school psychologists are designed to enable a child with a recommended changing the regulations
automatically qualified to perform these disability to receive FAPE. We will also to ensure that parents understand that
duties or to prohibit other qualified add language to clarify that school nurse the definition of related services
personnel from providing these services, services are provided by a qualified includes school nurse services.
consistent with State requirements. school nurse and that school health Discussion: The LRE requirements in
Changes: None. services are provided by either a §§ 300.114 through 300.120 provide,
qualified school nurse or other qualified that to the maximum extent appropriate,
Recreation (§ 300.34(c)(11)) person. We recognize that most schools children with disabilities are to be
Comment: A few commenters do not have a qualified school nurse on educated with children who are not
requested modifying the definition of a full-time basis (i.e., a nurse that meets disabled. It is not necessary to repeat
recreation to include therapeutic the State standards for a qualified this requirement in the definition of
recreation services provided by a school nurse), and that many schools school health services and school nurse
qualified recreational therapist, which rely on other qualified school personnel services.
include services that restore, remediate, to provide school health services under We agree that school health services
or rehabilitate to improve functioning the direction of a school nurse. and school nurse services are important
and independence, and reduce or Therefore, we believe it is important to related services. Section 300.34(a) and
eliminate the effects of illness or retain the definition of school health section 602(26)(A) of the Act are clear
disability. services and school nurse services in that the definition of related services
Discussion: We do not believe it is these regulations. includes school health services and
necessary to change the definition of With the changes made in § 300.34(c), school nurse services. The IEP Team, of
recreation as recommended by the it is not necessary for the reference to which the parent is an integral member,
commenters because the definition is ‘‘school nurse services’’ in § 300.34(a) to is responsible for determining the
sufficiently broad to include the include the phrase, ‘‘designed to enable services that are necessary for the child
services mentioned by the commenters. a child with a disability to receive a free to receive FAPE. We, therefore, do not
Changes: None. appropriate public education as believe that it is necessary to add a
described in the IEP of the child.’’ We regulation requiring public agencies to
School Health Services and School will, therefore, remove this phrase in ensure that parents understand that
Nurse Services (Proposed School Nurse § 300.34(a). related services include school health
Services) (§ 300.34(c)(13)) Changes: Section 300.34(c)(13) has services and school nurse services.
Comment: Some commenters noted been revised to include a definition of Changes: None.
that while ‘‘school health services’’ is school health services and school nurse Comment: One commenter stated that
included in the list of related services in services. Additional language has been including the phrase, ‘‘designed to
§ 300.34(a), it is not defined, which will added to clarify who provides school enable a child with a disability to
result in confusion about the health services and school nurse receive a free appropriate public
relationship between ‘‘school health services. We have also modified education’’ in § 300.34(c)(13) in relation
services’’ and ‘‘school nurse services.’’ § 300.34(a) by deleting the redundant to school nurse services, is unnecessary
Some commenters stated that adding phrase, ‘‘designed to enable a child with and confusing.
the definition of school nurse services a disability to receive a free appropriate Discussion: As stated in § 300.34(a),
and eliminating the definition of school public education as described in the IEP the purpose of related services is to

health services must not narrow the of the child.’’ assist a child with a disability to benefit
range of related services available to Comment: One commenter stated that from special education. We believe it is
children. One commenter recommended adding school nurse services to the necessary to specify that school health
that the definition of school nurse definition of related services makes it services and school nurse services are
services allow school nurse services to more burdensome for the delivery of related services only to the extent that



the services allow a child to benefit language in the preamble to the final community resources would not be an
from special education and enable a 1992 regulations also clarified that this effective means of enabling the child to
child with a disability to receive FAPE. provision did not set a legal standard for learn as effectively as possible because
Changes: None. that program or entitle the child to a there are no community resources to
Social Work Services in Schools particular educational benefit. The address the needs of the child, the IEP
(§ 300.34(c)(14)) preamble further explained that, during Team would need to consider other
the public comment period for the 1992 ways to meet the child’s needs. While
Comment: One commenter regulations, commenters raised there is the possibility that a due
recommended including strategies to concerns that the term ‘‘maximum process hearing might be filed based on
facilitate social-emotional learning in benefit’’ appeared to be inconsistent a failure to mobilize community
the definition of social work services in with the decision by the United States resources that do not exist, we do not
schools. A few commenters stated that Supreme Court in Board of Education v. believe that such a claim could ever be
the role of the school social worker is Rowley, 458 U.S. 176 (1982). Therefore, successful, as the regulation does not
evolving and recommended that the the phrase was revised to read ‘‘to learn require the creation of community
definition include the role of social as effectively as possible in his or her resources that do not exist.
workers as integral members of pre- educational program.’’ This is the same Changes: None.
referral teams that deliver interventions phrase used in the 1999 regulations and
to decrease the number of referrals to Speech-language Pathology Services
in these regulations in
special education. One commenter (§ 300.34(c)(15))
§ 300.34(c)(14)(iv). Because the language
recommended that the definition in the 1977 final regulations did not Comment: One commenter stated that
include a reference to the social entitle a child to any particular benefit, children who need speech therapy
worker’s role in addressing the relevant the change made in 1992 did not lessen should have it for a full classroom
history and current functioning of an protections for a child, and, therefore, is period, five days a week, and not be
individual within his or her not subject to section 607(b) of the Act. removed from other classes to receive
environmental context, rather than Changes: None. this related service.
referring to social-developmental Comment: One commenter Discussion: It would be inconsistent
histories. Another commenter stated recommended adding a reference to with the Act to dictate the amount and
that social workers are trained to find ‘‘functional behavioral assessments’’ in location of services for all children
resources in the home, school, and § 300.34(c)(14)(v) because functional receiving speech-language pathology
community and recommended behavioral assessments should always services, as recommended by the
including such language in the precede the development of behavioral commenter. As with all related services,
definition. intervention strategies. Another section 614(d)(1)(A)(i)(IV) of the Act
Discussion: The definition of social commenter expressed concern that provides that the child’s IEP Team is
work services in schools is sufficiently § 300.34(c)(14)(iv), regarding social responsible for determining the services
broad to include the services described work services to mobilize school and that are needed for the child to receive
by the commenters and we do not community resources to enable the FAPE. This includes determining the
believe the definition should be revised child to learn as effectively as possible, type of related service, as well as the
to add these more specific functions. creates a potential for litigation. The amount and location of services.
Changes: None. commenter asked whether a school Changes: None.
Comment: One commenter stated that district could face a due process hearing Comment: One commenter stated that
the definition of social work services in for failure to mobilize community the definition of speech-language
schools removes language from the 1983 resources if there are no community pathology services appears to be limited
regulations that states that social work resources to address the needs of the to children who are deaf or hard of
services allow children with disabilities child or family. hearing, and recommended adding
to maximize benefit from the learning Discussion: The definition of social language to the regulations to allow
program. The commenter stated that this work services in schools includes children without expressive speech to
is a higher standard than what is examples of the types of social work receive such services.
required in § 300.34(c)(14), which only services that may be provided. It is not Discussion: There is nothing in the
requires that services enable a child to a prescriptive or exhaustive list. The Act or the regulations that would limit
learn as effectively as possible, and, child’s IEP Team is responsible for speech-language pathology services to
therefore, the 1983 definition should be determining whether a child needs children who are deaf or hard of hearing
retained, consistent with section 607(b) social work services, and what specific or to children without expressive
of the Act. social work services are needed in order speech. The definition of speech-
Discussion: We disagree with the for the child to receive FAPE. Therefore, language pathology services specifically
commenter. The definition of social while conducting a functional includes services for children who have
work services in schools in the 1977 behavioral assessment typically language impairments, as well as speech
regulations included ‘‘mobilizing school precedes developing positive behavioral impairments.
and community resources to enable the intervention strategies, we do not Changes: None.
child to receive maximum benefit from believe it is necessary to include Comment: One commenter requested
his or her educational program.’’ As functional behavioral assessments in the the definition of speech-language
explained in the preamble to the final definition of social work services in pathology services specify the
1992 regulations, the phrase ‘‘to receive schools because providing positive qualifications and standards for speech-
maximum benefit’’ was intended only to behavioral intervention strategies is just language professionals. Another
provide that the purpose of activities an example of a social work service that commenter requested that the definition

carried out by personnel qualified to might be provided to a child if the require a highly qualified provider to
provide social work services in schools child’s IEP Team determines that such deliver speech-language services. One
is to mobilize resources so that a child services are needed for the child to commenter requested that the definition
can learn as effectively as possible in his receive FAPE. Similarly, if a child’s IEP require a speech-language pathologist to
or her educational program. The Team determines that mobilizing provide speech-language services.



Discussion: Consistent with § 300.156 escort the child to and from the bus B of the Act and, therefore, we will
and section 612(a)(14) of the Act, it is each day. include a reference to the definition of
up to each State to establish personnel Discussion: A child’s IEP Team is that term in section 9101(37) of the
qualifications to ensure that personnel responsible for determining whether ESEA.
necessary to carry out the purposes of transportation between school and other For the reasons set forth earlier in this
the Act are appropriately and locations is necessary in order for the notice, we are not including definitions
adequately prepared and trained and child to receive FAPE. Likewise, if a from other statutes in these regulations.
have the content knowledge and skills child’s IEP Team determines that However, we will include the current
to serve children with disabilities. supports or modifications are needed in definition of scientifically based
Section 300.156(b), consistent with order for the child to be transported so research in section 9101(37) of the
section 614(a)(14)(B) of the Act, that the child can receive FAPE, the ESEA here for reference.
specifically requires that these child must receive the necessary Scientifically based research—
personnel qualifications must include transportation and supports at no cost to (a) Means research that involves the
qualifications for related services the parents. We believe the definition of application of rigorous, systematic, and
personnel. Establishing qualifications transportation is sufficiently broad to objective procedures to obtain reliable
for individuals providing speech- address the commenters’ concerns. and valid knowledge relevant to
language services in these regulations Therefore, we decline to make the education activities and programs; and
would be inconsistent with these requested changes to the definition. (b) Includes research that—
statutory and regulatory requrements. Changes: None. (1) Employs systematic, empirical
Changes: None. Comment: Some commenters methods that draw on observation or
recommended removing the term experiment;
Comment: One commenter stated that
‘‘special transportation’’ from the (2) Involves rigorous data analyses
the roles and responsibilities for speech-
definition of transportation because the that are adequate to test the stated
language pathologists in schools have
term gives the impression that adapted hypotheses and justify the general
been expanded to help all children gain
buses are used for a separate and conclusions drawn;
language and literacy skills and (3) Relies on measurements or
different transportation system, when,
recommended that the definition of observational methods that provide
in fact, adapted buses are part of the
speech-language pathology services be reliable and valid data across evaluators
regular transportation fleet and system.
revised to include consultation and and observers, across multiple
These commenters stated that adapted
collaboration with other staff members measurements and observations, and
buses should only be used as a separate,
to plan and implement special across studies by the same or different
special transportation service if the
intervention monitoring programs and investigators;
child’s IEP indicates that the
modify classroom instruction to assist (4) Is evaluated using experimental or
transportation needs of the child can be
children in achieving academic success. quasi-experimental designs in which
met only with transportation services
The commenter also recommended individuals, entities, programs, or
that are separate from the transportation
including services for other health activities are assigned to different
services for all children.
impairments, such as dysphagia, in the Discussion: We do not believe it is conditions and with appropriate
definition of speech-language pathology necessary to make the change requested controls to evaluate the effects of the
services. by the commenters. It is assumed that condition of interest, with a preference
Discussion: The Act provides for most children with disabilities will for random-assignment experiments, or
speech-language pathology services for receive the same transportation other designs to the extent that those
children with disabilities. It does not provided to nondisabled children, designs contain within-condition or
include speech-language pathology consistent with the LRE requirements in across-condition controls;
services to enable all children to gain §§ 300.114 through 300.120, unless the (5) Ensures that experimental studies
language and literacy skills, as IEP Team determines otherwise. While are presented in sufficient detail and
suggested by the commenter. It would, we understand the commenter’s clarity to allow for replication or, at a
therefore, be inconsistent with the Act concern, adapted buses may or may not minimum, offer the opportunity to build
to change the definition of speech- be part of the regular transportation systematically on their findings; and
language pathology services in the system in a particular school system. In (6) Has been accepted by a peer-
manner recommended by the any case, if the IEP Team determines reviewed journal or approved by a panel
commenter. We believe that the that a child with a disability requires of independent experts through a
definition is sufficiently broad to transportation as a related service in comparably rigorous, objective, and
include services for other health order to receive FAPE, or requires scientific review.
impairments, such as dysphagia, and supports to participate in integrated Changes: A cross-reference to the
therefore, decline to revise the transportation with nondisabled definition of scientifically based
definition to include this specific children, the child must receive the research in section 9101(37) of the
service. necessary transportation or supports at ESEA has been added as new § 300.35.
Changes: None. no cost to the parents. Subsequent definitions have been
Transportation (§ 300.34(c)(16)) Changes: None. renumbered accordingly.

Comment: A few commenters stated Scientifically Based Research (new Secondary School (New § 300.36)
that the definition of transportation § 300.35) (Proposed § 300.35)
should require transportation to be Comment: A number of commenters Comment: One commenter requested
provided between school and other requested that the regulations include a clarification regarding the definition of

locations in which IEP services are definition of scientifically based secondary school and whether ‘‘grade
provided. Other commenters requested research. 12’’ refers to the regular grade 12
that the definition explicitly define Discussion: The definition of curriculum aligned to State academic
transportation as door-to-door services, scientifically based research is achievement standards under the ESEA
including provisions for an aide to important to the implementation of Part or a limit on the number of years



children with a disabilities can spend in other forms of education mentioned by disabilities have access to the general
school. the commenter. curriculum is a major focus of the
Discussion: The term ‘‘grade 12’’ in Changes: None. requirements for developing a child’s
the definition of secondary school has IEP. For example, § 300.320(a)(1)
Individual Special Education Terms
the meaning given it under State law. It requires a child’s IEP to include a
Defined (New § 300.39(b)) (Proposed
is not intended to impose a Federal statement of how the child’s disability
§ 300.38(b))
limit on the number of years a child affects the child’s involvement and
with a disability is allowed to complete Comment: A few commenters progress in the general education
his or her secondary education, as some provided definitions of curriculum; § 300.320(a)(2)(i) requires
children with disabilities may need ‘‘accommodations’’ and ‘‘modifications’’ annual IEP goals to be designed to
more than 12 school years to complete and recommended including them in enable the child to be involved in and
their education. new § 300.39(b) (proposed § 300.38(b)). make progress in the general education
Changes: None. Discussion: The terms curriculum; and § 300.320(a)(4) requires
‘‘accommodations’’ and ‘‘modifications’’ the IEP to include a statement of the
Services Plan (New § 300.37) (Proposed are terms of art referring to adaptations special education and related services
§ 300.36) of the educational environment, the the child will receive, as well as the
Comment: One commenter stated that presentation of educational material, the program modifications or supports for
the term services plan is not in the Act method of response, or the educational school personnel that will be provided,
and, therefore, should be removed. content. They are not, however, to enable the child to be involved in and
However, the commenter stated that if examples of different types of make progress in the general education
the definition of services plan remained ‘‘education’’ and therefore we do not curriculum. We do not believe
in the regulations, it should reflect the believe it is appropriate to define these additional language is necessary.
fact that parentally-placed private terms of art or to include them in new Changes: None.
school children are not entitled to § 300.39(b) (proposed § 300.38(b)).
Travel Training (New § 300.39(b)(4))
FAPE. Changes: None.
(Proposed § 300.38(b)(4))
Discussion: The definition of services Physical Education (New § 300.39(b)(2)) Comment: A few commenters
plan was included to describe the (Proposed § 300.38(b)(2)) recommended strengthening the
content, development, and Comment: One commenter requested definition of travel training in new
implementation of plans for parentally- that adaptive physical education be § 300.39(b)(4) (proposed § 300.38(b)(4))
placed private school children with subject to the LRE requirements of the and adding travel training to new
disabilities who have been designated to Act. § 300.43 (proposed § 300.42) (transition
receive equitable services. The Discussion: The requirements in services) to acknowledge that
definition cross-references the specific §§ 300.114 through 300.120 require that, transportation is vitally important for
requirements for the provision of to the maximum extent appropriate, children with disabilities to have full
services to parentally-placed private children with disabilities are educated participation in the community. The
school children with disabilities in with children who are nondisabled. commenters recommended that the
§ 300.132 and §§ 300.137 through This requirement applies to all special definition of travel training include
300.139, which provide that parentally- education services, including adaptive providing instruction to children with
placed private school children have no physical education. We see no need to disabilities, other than blindness, to
individual right to special education repeat this requirement specifically for enable them to learn the skills and
and related services and thus are not the provision of adaptive physical behaviors necessary to move effectively
entitled to FAPE. We do not believe education. and safely in various environments,
further clarification is necessary. Changes: None. including use of public transportation.
Changes: None. Discussion: We believe the definition
Specially Designed Instruction (New of travel training already acknowledges
Special Education (New § 300.39) § 300.39(b)(3)) (Proposed § 300.38(b)(3)) the importance of transportation in
(Proposed § 300.38)
Comment: One commenter stated that supporting children with disabilities to
Comment: One commenter requested the regulations should strengthen the fully participate in their communities.
modifying the definition of special requirements ensuring children access New § 300.43(a)(4) (proposed
education to distinguish special to the general curriculum, because many § 300.42(a)(4)) defines travel training to
education from other forms of children with disabilities still do not include providing instruction that
education, such as remedial have the tools they need or the teachers enables children to learn the skills
programming, flexible grouping, and with expertise to access the general necessary to move effectively and safely
alternative education programming. The curriculum. from place to place in school, home, at
commenter stated that flexible grouping, Discussion: We believe the regulations work and in the community. Therefore,
diagnostic and prescriptive teaching, place great emphasis on ensuring that we do not believe that further
and remedial programming have children with disabilities have access to clarification is necessary. We also do
expanded in the general curriculum in the general education curriculum. New not believe that it is necessary to add
regular classrooms and the expansion of § 300.39(b)(3) (proposed § 300.38(b)(3)) travel training to the definition of
such instruction will only be defines specially designed instruction as transition services, as recommended by
encouraged with the implementation of adapting the content, methodology, or the commenters. We believe that IEP
early intervening services under the Act. delivery of instruction to address the Teams already consider the importance
Discussion: We believe the definition unique needs of the child and to ensure of transportation and travel training

of special education is clear and access to the general curriculum so that services in the course of planning for a
consistent with the definition in section the child can meet the educational student’s postsecondary transition
602(29) of the Act. We do not believe it standards within the jurisdiction of the needs. It is unnecessary to state that
is necessary to change the definition to public agency that apply to all children. travel training includes instructing
distinguish special education from the In addition, ensuring that children with children with disabilities other than



blindness, as requested by the secondary education, which is an individuals because § 300.320(a)(4)
commenters, because the definition of unwarranted responsibility for school requires each child’s IEP to include a
travel training already states that travel districts. One commenter stated that the statement of the program modifications
training is appropriate for any child definition could be interpreted to or supports for school personnel that
with a disability who requires this require public agencies to provide two will be provided to enable the child to
instruction. years of postsecondary education for be involved in and make progress in the
Changes: None. students with disabilities. A few general education curriculum, and to
Comment: A few commenters strongly commenters strongly recommended participate in extracurricular and other
recommended clarifying that the removing the definition of vocational nonacademic activities.
definition of travel training does not and technical education. As noted in the Analysis of Comments
include training for children with visual Some commenters recommended and Changes section for subpart B, we
impairments, regardless of whether they removing the reference to the have clarified in § 300.107(a) that States
have additional disabilities. postsecondary level for a 1-year must ensure that public agencies take
Discussion: Any child with a certificate, an associate degree, and steps to provide nonacademic and
disability, including a child with a industry-recognized credential in the extracurricular services and activities,
visual impairment, who needs travel definition of vocational and technical including providing supplementary aids
training instruction to receive FAPE, as education. One commenter suggested and services determined appropriate
determined by the child’s IEP Team, can that proposed § 300.38(b)(6)(i)(A) and necessary by the child’s IEP Team
receive travel training instruction. New conclude with the word ‘‘or’’ to clarify to afford children with disabilities an
§ 300.39(b)(4) (proposed § 300.38(b)(4)) that the sequence of courses is equal opportunity for participation in
specifically states that travel training discretionary. those services and activities. We have,
means providing instruction to children Discussion: The definition of therefore, revised the definition of
with significant cognitive disabilities vocational education was revised to supplementary aids and services in new
and any other children with disabilities include the definition of vocational and § 300.42 (proposed § 300.41) to be
who require this instruction. We, technical education in the Carl D. consistent with this change.
therefore, decline to change the Perkins Vocational and Applied
Changes: We have added language in
definition, as recommended by the Technology Act of 1988, as amended, 20
new § 300.42 (proposed § 300.41) to
commenters. U.S.C. 2301, 2302(29). However, based
clarify that supplementary aids and
Changes: None. on the comments we received, it is
services can be provided in
apparent that including the definition of
Vocational Education (New extracurricular and nonacademic
vocational and technical education has
§ 300.39(b)(5)) (Proposed § 300.38(b)(5)) settings to enable children with
raised concerns and confusion regarding
Comment: A few commenters disabilities to be educated with
the responsibilities of SEAs and LEAs to
recommended revising the definition of nondisabled children to the maximum
provide vocational education.
vocational education to include extent appropriate.
Therefore, we will remove the definition
specially designed educational of vocational and technical education in Comment: None.
programs that are directly related to the proposed § 300.38(b)(6) and the Discussion: New § 300.42 (proposed
preparation of individuals for paid or reference to vocational and technical § 300.41) contains an incorrect reference
unpaid employment or for additional education in proposed § 300.38(b)(5)(ii). to § 300.112. The correct reference
preparation for a career not requiring a Changes: The definition of vocational should be to § 300.114.
baccalaureate or advanced degree. and technical education in proposed Changes: We have removed the
Discussion: We believe that the more § 300.38(b)(6) has been removed. reference to § 300.112 and replaced it
general reference to ‘‘organized Accordingly, the reference to vocational with a reference to § 300.114.
education programs’’ in the definition of and technical education in proposed Transition Services (New § 300.43)
vocational education is accurate and § 300.38(b)(5)(ii)) has also been (Proposed § 300.42)
should not be changed to refer to removed.
‘‘specially designed educational Comment: One commenter
Supplementary Aids and Services (New recommended replacing the word
programs,’’ as recommended by the
§ 300.42) (Proposed § 300.41) ‘‘child’’ with ‘‘student’’ in the definition
commenter, because some children with
disabilities will benefit from Comment: A few commenters stated of transition services.
educational programs that are available that the definition of supplementary Discussion: The definition of
for all children and will not need aids and services should be changed to transition services follows the language
specially designed programs. mean aids, services, and other supports in section 602(34) of the Act. The words
Changes: None. provided in general education classes or ‘‘child’’ and ‘‘student’’ are used
Comment: Some commenters stated other settings to children with throughout the Act and we have used
that Congress did not intend that the disabilities, as well as to educators, the statutory language in these
definition of vocational education other support staff, and nondisabled regulations whenever possible.
would include vocational and technical peers, if necessary, to support the Changes: None.
education. The commenters stated that inclusion of children with disabilities. Comment: One commenter
the addition of vocational and technical Discussion: The definition of recommended that the regulations
education to the definition of vocational supplementary aids and services in new include vocational and career training
education creates a right under the Act § 300.42 (proposed § 300.41) is through work-study as a type of
to educational services that would be consistent with the specific language in transition service. A few commenters
extremely costly for States and LEAs to section 602(33) of the Act, and refers to stated that the definition of transition

implement. aids, services, and other supports for services must specify that a student’s
Other commenters stated that children with disabilities. We do not need for transition services cannot be
including the definition of vocational believe it is necessary to change the based on the category or severity of a
and technical education from the Carl definition to include providing aids, student’s disability, but rather on the
D. Perkins Act expands FAPE beyond services, and supports to other student’s individual needs.



Discussion: We do not believe it is with a disability, and not just for interoperable with assistive
necessary to change the definition of students with significant cognitive technologies.
transition services because the disabilities. As with all special Changes: None.
definition is written broadly to include education and related services, the Comment: Several commenters stated
a range of services, including vocational student’s IEP Team determines the that the definition of universal design
and career training that are needed to services that are needed to provide should be changed to include the
meet the individual needs of a child FAPE to a child with a disability based universal design of academic content
with a disability. The definition clearly on the needs of the child. standards, curricula, instructional
states that decisions regarding transition Changes: None. materials, and assessments.
services must be made on the basis of Comment: One commenter requested Discussion: The definition of
the child’s individual needs, taking into a definition of ‘‘results-oriented universal design is statutory. Congress
account the child’s strengths, process.’’ clearly intended that we use this
preferences, and interests. As with all Discussion: The term ‘‘results- specific definition when it used this
special education and related services, oriented process,’’ which appears in the term in the Act. We do not believe we
the student’s IEP Team determines the statutory definition of transition can change this definition as suggested
transition services that are needed to services, is generally used to refer to a by the commenters.
provide FAPE to a child with a process that focuses on results. Because Changes: None.
disability based on the needs of the we are using the plain meaning of the Subpart B—State Eligibility
child, not on the disability category or term (i.e., a process that focuses on
severity of the disability. We do not FAPE Requirements
results), we do not believe it is
believe further clarification is necessary. necessary to define the term in these Free Appropriate Public Education
Changes: None. regulations. (FAPE) (§ 300.101)
Comment: A few commenters stated
Changes: None. Comment: One commenter
that the regulations do not define
Comment: A few commenters stated recommended revising § 300.101 to
‘‘functional’’ or explain how a student’s
that ‘‘acquisition of daily living skills ensure that children with disabilities
functional performance relates to the
and functional vocational evaluation’’ is who are suspended or expelled from
student’s unique needs or affects the
student’s education. The commenters unclear as a child does not typically their current placement are provided
noted that the word ‘‘functional’’ is used ‘‘acquire’’ an evaluation. The educational services consistent with
throughout the regulations in various commenters stated that the phrase State academic achievement standards.
forms, including ‘‘functional should be changed to ‘‘functional One commenter asked whether children
assessment,’’ ‘‘functional goals,’’ vocational skills.’’ with disabilities who are suspended or
‘‘functional abilities,’’ ‘‘functional Discussion: We agree that the phrase expelled from their current placement
needs,’’ ‘‘functional achievement,’’ and is unclear and will clarify the language must continue to be taught by highly
‘‘functional performance,’’ and should in the regulation to refer to the qualified teachers.
be defined to avoid confusion. One ‘‘provision of a functional vocational Discussion: We believe the concern
commenter recommended either evaluation.’’ raised by the commenter is already
defining the term or explicitly Changes: We have added ‘‘provision addressed by this regulation and
authorizing States to define the term. of a’’ before ‘‘functional vocational elsewhere in the regulations and that no
One commenter recommended evaluation’’ in new § 300.43(a)(2)(v) for changes to § 300.101 are necessary.
clarifying that ‘‘functional performance’’ clarity. Section 300.530(d), consistent with
must be a consideration for any child Universal Design (New § 300.44) section 615(k)(1)(D) of the Act, clarifies
with a disability who may need services (Proposed § 300.43) that a child with a disability who is
related to functional life skills and not removed from his or her current
just for students with significant Comment: Many commenters placement for disciplinary reasons,
cognitive disabilities. A few requested including the full definition irrespective of whether the behavior is
commenters stated that the definition of of universal design in the regulations, determined to be a manifestation of the
transition services must specify that rather than providing a reference to the child’s disability, must be allowed to
‘‘functional achievement’’ includes definition of the term. participate in the general education
achievement in all major life functions, Discussion: The term universal design curriculum, although in another setting,
including behavior, social-emotional is defined in the Assistive Technology and to progress toward meeting his or
development, and daily living skills. Act of 1998, as amended. For the her IEP goals. As the term ‘‘general
Discussion: We do not believe it is reasons set forth earlier in this notice, education curriculum’’ is used
necessary to include a definition of we are not including in these throughout the Act and in these
‘‘functional’’ in these regulations regulations full definitions of terms that regulations, the clear implication is that
because the word is generally used to are defined in other statutes. However, there is an education curriculum that is
refer to activities and skills that are not we will include the definition of this applicable to all children and that this
considered academic or related to a term from section 3 of the Assistive curriculum is based on the State’s
child’s academic achievement as Technology Act of 1998, as amended, 29 academic content standards.
measured on Statewide achievement U.S.C. 3002, here for reference. Children with disabilities who are
tests. There is nothing in the Act that The term universal design means a suspended or expelled from their
would prohibit a State from defining concept or philosophy for designing and current placement in public schools
‘‘functional,’’ as long as the definition delivering products and services that are must continue to be taught by highly
and its use are consistent with the Act. usable by people with the widest qualified teachers, consistent with the

We also do not believe it is necessary possible range of functional capabilities, requirements in §§ 300.156 and 300.18.
for the definition of transition services which include products and services Private school teachers are not subject to
to refer to all the major life functions or that are directly accessible (without the highly qualified teacher
to clarify that functional performance requiring assistive technologies) and requirements under this part.
must be a consideration for any child products and services that are Changes: None.



Comment: One commenter suggested violated school conduct rules, and secondary school experience and
clarifying in § 300.101 that FAPE must should not necessarily have to provide postsecondary goals.
be available to children with disabilities exactly the same services, in the same Discussion: We believe that
in the least restrictive environment. settings, to these children. Therefore, we § 300.102(a)(3) is sufficiently clear that
Discussion: We do not believe further decline to regulate further in this regard. public agencies need not make FAPE
clarification is needed in § 300.101, as Changes: None. available to children with disabilities
the matter is adequately covered Comment: Some commenters who have graduated with a regular high
elsewhere in the regulations. Section expressed concern that children with school diploma and that no change is
300.101 clarifies that, in order to be disabilities have to fail or be retained in needed to the regulations. Children with
eligible to receive funds under Part B of a grade or course in order to be disabilities who have not graduated
the Act, States must, among other considered eligible for special education with a regular high school diploma still
conditions, ensure that FAPE is made and related services. have an entitlement to FAPE until the
available to all children with specified Discussion: Section 300.101(c) child reaches the age at which eligibility
disabilities in mandated age ranges. The provides that a child is eligible to ceases under the age requirements
term FAPE is defined in § 300.17 and receive special education and related within the State. However, we have
section 602(9)(D) of the Act as services even though the child is reviewed the regulations and believe
including, among other elements, advancing from grade to grade. Further, that it is important for these regulations
special education and related services, it is implicit from paragraph (c) of this to define ‘‘regular diploma’’ consistent
provided at no cost to parents, in section that a child should not have to with the ESEA regulations in 34 CFR
conformity with an individualized fail a course or be retained in a grade in § 200.19(a)(1)(i). Therefore, we will add
education program (IEP). Sections language to clarify that a regular high
order to be considered for special
300.114 through 300.118, consistent school diploma does not include an
education and related services. A public
with section 612(a)(5) of the Act, alternative degree that is not fully
agency must provide a child with a
implement the Act’s strong preference aligned with the State’s academic
disability special education and related
for educating children with disabilities standards, such as a certificate or
services to enable him or her to progress
in regular classes with appropriate aids general educational development (GED)
in the general curriculum, thus making
and supports. Specifically, § 300.114 credential.
clear that a child is not ineligible to We do not believe § 300.102 could be
provides that States must have in effect
receive special education and related interpreted to permit public agencies to
policies and procedures ensuring that,
services just because the child is, with delay implementation of transition
to the maximum extent appropriate,
the support of those individually services, as stated by one commenter
children with disabilities, including
children in public or private institutions designed services, progressing in the because transition services must be
or other care facilities, are educated general curriculum from grade-to-grade provided based on a child’s age, not the
with children who are nondisabled, and or failing a course or grade. The group number of years the child has remaining
that special classes, separate schooling, determining the eligibility of a child for in the child’s high school career.
or other removal of children with special education and related services Section 300.320(b), consistent with
disabilities from the regular educational must make an individual determination section 614(d)(1)(A)(i)(VIII) of the Act,
environment occurs only if the nature or as to whether, notwithstanding the requires each child’s IEP to include,
severity of the disability is such that child’s progress in a course or grade, he beginning not later than the first IEP to
education in regular classes with the use or she needs or continues to need be in effect when the child turns 16, or
of supplementary aids and services special education and related services. younger if determined appropriate by
cannot be achieved satisfactorily. However, to provide additional clarity the IEP Team, appropriate measurable
Changes: None. we will revise paragraph (c)(1) of this postsecondary goals and the transition
Comment: A few commenters section to explicitly state that children services needed to assist the child in
recommended including language in do not have to fail or be retained in a reaching those goals.
§ 300.101(a) specifying that children course or grade in order to be Changes: A new paragraph (iv) has
with disabilities expelled or suspended considered eligible for special education been added in § 300.102(a)(3) stating
from the general education classroom and related services. that a regular high school diploma does
must be provided FAPE in the least Changes: Section 300.101(c)(1) has not include an alternative degree that is
restrictive environment. been revised to provide that children do not fully aligned with the State’s
Discussion: The Department believes not have to fail or be retained in a academic standards, such as a certificate
it would not be appropriate to include course or grade in order to be or GED.
the requested language in this section considered eligible for special education Comment: One commenter requested
because services in these circumstances and related services. clarification as to how States should
are provided under somewhat different include children with disabilities who
Limitation—Exception to FAPE for
criteria than is normally the case. require special education services
Certain Ages (§ 300.102)
Section 300.530 clarifies the procedures through age 21 in calculating, for
school personnel must follow when Comment: One commenter requested adequate yearly progress (AYP)
removing a child with a disability who that the regulations clarify that children purposes, the percentage of children
violates a code of student conduct from with disabilities who do not receive a who graduate with a regular high school
their current placement (e.g., regular high school diploma continue to diploma in the standard number of
suspension and expulsion). This be eligible for special education and years. The commenter expressed
includes how decisions are made related services. One commenter concern that States, in order to comply
regarding the educational services the expressed concern that the provision in with their high school graduation rate

child receives and the location in which § 300.102(a)(3)(ii) regarding children academic outcome requirements under
they will be provided. School officials with disabilities who have not been the ESEA, will change the grade status
need some reasonable amount of awarded a regular high school diploma from 12th grade to 11th grade for those
flexibility in providing services to could result in the delay of transition children with disabilities who will
children with disabilities who have services in the context of the child’s typically age out of the public education



system under the Act. The commenter such a case, the SEA is responsible for Team determines that the child requires
further stated that this will affect the ensuring that the entire cost of that a personal device (e.g., eyeglasses) in
exception to FAPE provisions in child’s placement, including the order to receive FAPE, the public
§ 300.102 for children with disabilities therapeutic care as well as room and agency must ensure that the device is
who require special education services board, is without cost to the parents. provided at no cost to the child’s
through age 21. However, the SEA is not responsible for parents.
Discussion: The calculation of providing medical care. Thus, visits to Changes: None.
graduation rates under the ESEA for a doctor for treatment of medical Comment: One commenter
AYP purposes (34 CFR 200.19(a)(1)(i)) conditions are not covered services recommended adding language to
does not alter the exception to FAPE under Part B of the Act and parents may § 300.105(b) to include, in addition to
provisions in § 300.102(a)(3) for be responsible for the cost of the hearing aids, other hearing
children with disabilities who graduate medical care. enhancement devices, such as a
from high school with a regular high Changes: None. cochlear implant.
school diploma, but not in the standard Discussion: Section 300.105(b), as
Assistive Technology (§ 300.105)
number of years. The public agency proposed, requires a public agency to
must make FAPE available until age 21 Comment: One commenter ensure that hearing aids worn in school
or the age limit established by State law, recommended removing § 300.105 and by children with hearing impairments,
even though the child would not be including the requirements in this including deafness, are functioning
included as graduating for AYP section in the definition of assistive properly. This is a longstanding
purposes under the ESEA. In practice, technology device in § 300.5 and requirement and was included pursuant
though, there is no conflict between the assistive technology service in § 300.6. to a House Committee Report on the
Act and the ESEA, as the Department Discussion: Section 300.5 and § 300.6 1978 appropriations bill (H. Rpt. No.
interprets the ESEA title I regulations to define the terms assistive technology 95–381, p. 67 (1977)) directing the
permit States to propose a method for device and assistive technology service, Department to ensure that children with
accurately accounting for students who respectively. Section 300.105 is not part hearing impairments are receiving
legitimately take longer than the of the definition of these terms, but adequate professional assessment,
standard number of years to graduate. rather is necessary to specify the follow-up, and services. The
Changes: None. circumstances under which public Department believes that, given the
agencies are responsible for making increase in the number of children with
Residential Placement: (§ 300.104) available assistive technology devices disabilities with surgically implanted
Comment: A few commenters and assistive technology services to devices (e.g., cochlear implants, vagus
requested that the regulations clarify children with disabilities.
that parents cannot be held liable for nerve stimulators, electronic muscle
Changes: None.
any costs if their child with a disability Comment: A few commenters stimulators), and rapid advances in new
is placed in a residential setting by a requested clarifying in § 300.105(b) technologies to help children with
public agency in order to provide FAPE whether hearing aids are included in the disabilities, it is important that these
to the child. definition of an assistive technology regulations clearly address any
Discussion: Section 300.104, device. obligation public agencies have to
consistent with section 612(a)(1) and Discussion: An assistive technology provide follow-up and services to
(a)(10)(B) of the Act, is a longstanding device, as defined in § 300.5, means any ensure that such devices are functioning
provision that applies to placements item, piece of equipment, or product properly.
that are made by public agencies in system that is used to increase, Section 602(1) of the Act clarifies that
public and private institutions for maintain, or improve the functional the definition of assistive technology
educational purposes and clarifies that capabilities of a child with a disability. device does not include a medical
parents are not required to bear the costs The decision of whether a hearing aid device that is surgically implanted or
of a public or private residential is an assistive technology device is a the replacement of such device. Section
placement if such placement is determination that is made on an 602(26) of the Act also stipulates that
determined necessary to provide FAPE. individual basis by the child’s IEP only medical services that are for
If a public agency determines in an Team. However, even if the IEP Team diagnostic and evaluative purposes and
individual situation that a child with a determines that a hearing aid is an required to assist a child with a
disability cannot receive FAPE from the assistive technology device, within the disability to benefit from special
programs that the public agency meaning of § 300.5, for a particular education are considered a related
conducts and, therefore, placement in a child, the public agency is responsible service. We believe Congress was clear
public or private residential program is for the provision of the assistive in its intent in S. Rpt. 108–185, p. 8,
necessary to provide special education technology device as part of FAPE, only which states:
and related services to the child, the if, as specified in § 300.105, the device [T]he definitions of ‘‘assistive technology
program, including non-medical care is required as part of the child’s special device’’ and ‘‘related services’’ do not
include a medical device that is surgically
and room and board, must be at no cost education defined in § 300.39, related implanted, or the post-surgical maintenance,
to the parents of the child. services defined in § 300.34, or programming, or replacement of such device,
In situations where a child’s supplementary aids and services or an external device connected with the use
educational needs are inseparable from defined in § 300.42. of a surgically implanted medical device
the child’s emotional needs and an As a general matter, public agencies (other than the costs of performing routine
individual determination is made that are not responsible for providing maintenance and monitoring of such external
the child requires the therapeutic and personal devices, such as eyeglasses or device at the same time the child is receiving

habilitation services of a residential hearing aids that a child with a other services under the act).
program in order to ‘‘benefit from disability requires, regardless of The Department believes, however,
special education,’’ these therapeutic whether the child is attending school. that public agencies have an obligation
and habilitation services may be However, if it is not a surgically to change a battery or routinely check an
‘‘related services’’ under the Act. In implanted device and a child’s IEP external component of a surgically



implanted medical device to make sure who require ESY services in order to extent that its application to those
it is turned on and operating. However, receive FAPE have the necessary children would be inconsistent with
mapping a cochlear implant (or paying services available to them, and that State law or practice, or the order of any
the costs associated with mapping) is individualized determinations about court, regarding the provision of public
not routine checking as described above each disabled child’s need for ESY education to children of those ages. We
and should not be the responsibility of services are made through the IEP do not believe any further clarification
a public agency. We will add language process. is necessary.
to the regulations to clarify a public Changes: None. Changes: None.
agency’s responsibility regarding the Comment: One commenter stated that Comment: One commenter requested
routine checking of external the ESY requirements in § 300.106 that language be added to
components of surgically implanted should not be included as part of the § 300.106(b)(1)(i) to clarify that
medical devices. State eligibility requirements and would providing ESY services to a child with
Changes: A new § 300.113 has been be more appropriately included in the a disability beyond the normal school
added with the heading, ‘‘Routine definition of FAPE in § 300.17. year includes, but is not limited to,
checking of hearing aids and external Discussion: The definition of FAPE in before and after regular school hours, on
components of surgically implanted § 300.17 is taken directly from section weekends, and during regular school
medical devices.’’ Section 300.105(b), 602(9) of the Act. We believe the ESY vacations.
regarding the proper functioning of requirements are appropriately included Discussion: Typically, ESY services
hearing aids, has been removed and under the FAPE requirements as a part are provided during the summer
redesignated as new § 300.113(a). We of a State’s eligibility for assistance months. However, there is nothing in
have added a new paragraph (b) in new under Part B of the Act because the right § 300.106 that would limit a public
§ 300.113 clarifying that, for a child of an individual child with a disability agency from providing ESY services to
with a surgically implanted medical to ESY services is based on a child’s a child with a disability during times
device who is receiving special entitlement to FAPE. As a part of the other than the summer, such as before
education and related services under State’s eligibility for assistance under and after regular school hours or during
this part, a public agency is responsible Part B of the Act, the State must make school vacations, if the IEP Team
for routine checking of external FAPE available to all children with determines that the child requires ESY
components of surgically implanted disabilities residing in the State in services during those time periods in
medical devices, but is not responsible mandated age ranges. order to receive FAPE. The regulations
for the post-surgical maintenance, Changes: None.
Comment: One commenter give the IEP Team the flexibility to
programming, or replacement of a
recommended removing the word determine when ESY services are
medical device that has been surgically
‘‘only’’ in § 300.106(a)(2) because it is appropriate, depending on the
implanted (or of an external component
unduly limiting. circumstances of the individual child.
of a surgically implanted medical
Discussion: The inclusion of the word Changes: None.
device).
The provisions in § 300.105 have been ‘‘only’’ is intended to be limiting. ESY Comment: One commenter suggested
changed to conform with the other services must be provided ‘‘only’’ if a adding language to § 300.106 clarifying
changes to this section and the phrase child’s IEP Team determines, on an that ‘‘recoupment and retention’’ should
‘‘proper functioning of hearing aids’’ has individual basis, in accordance with not be used as the sole criteria for
been removed from the heading. §§ 300.320 through 300.324, that the determining the child’s eligibility for
services are necessary for the provision ESY services.
Extended School Year Services Discussion: We do not believe the
of FAPE to the child. We do not think
(§ 300.106) commenter’s suggested change should
this language is overly restrictive;
Comment: Several commenters instead, we think it is necessary for be made. The concepts of ‘‘recoupment’’
recommended removing § 300.106 providing appropriate parameters to the and ‘‘likelihood of regression or
because the requirement to provide responsibility of the IEP Team. retention’’ have formed the basis for
extended school year (ESY) services to Changes: None. many standards that States use in
children with disabilities is not required Comment: A few commenters making ESY eligibility determinations
in the Act. suggested revising § 300.106(a)(3)(i) to and are derived from well-established
Discussion: The requirement to specifically state that, in addition to judicial precedents. (See, for example,
provide ESY services to children with particular categories of disabilities, Johnson v. Bixby Independent School
disabilities who require such services in public agencies may not limit ESY District 4, 921 F.2d 1022 (10th Cir.
order to receive FAPE reflects a services to particular age ranges. Other 1990); Crawford v. Pittman, 708 F.2d
longstanding interpretation of the Act commenters proposed adding 1028 (5th Cir. 1983); GARC v. McDaniel,
by the courts and the Department. The ‘‘preschooler with a disability’’ to the 716 F.2d 1565 (11th Cir. 1983)). States
right of an individual child with a definition of ESY services in may use recoupment and retention as
disability to receive ESY services is § 300.106(b)(1). their sole criteria but they are not
based on that child’s entitlement to Discussion: The revisions limited to these standards and have
FAPE under section 612(a)(1) of the Act. recommended by the commenters are considerable flexibility in determining
Some children with disabilities may not not necessary. Section 300.106(a) eligibility for ESY services and
receive FAPE unless they receive clarifies that each public agency must establishing State standards for making
necessary services during times when ensure that ESY services are available ESY determinations. However, whatever
other children, both disabled and for children with disabilities if those standard a State uses must be consistent
nondisabled, normally would not be services are necessary for the children to with the individually-oriented

served. We believe it is important to receive FAPE. Section 300.101(a) clearly requirements of the Act and may not
retain the provisions in § 300.106 states that FAPE must be available to all limit eligibility for ESY services to
because it is necessary that public children aged 3 through 21, inclusive, children with a particular disability
agencies understand their obligation to residing in the State, except for children category or be applied in a manner that
ensure that children with disabilities ages 3, 4, 5, 18, 19, 20, or 21 to the denies children with disabilities who



require ESY services in order to receive other children of the public agency. We Special education as set forth in the
FAPE access to necessary ESY services. disagree that the list of activities causes Committee bill includes instruction in
Changes: None. confusion with related services, as we physical education, which is provided as a
think that the public can easily matter of course to all non-handicapped
Nonacademic Services (§ 300.107) children enrolled in public elementary and
recognize the difference between secondary schools. The Committee is
Comment: One commenter academic counseling services, for
recommended adding more specific concerned that although these services are
example, that are offered to all children, available to and required of all children in
language in § 300.107 regarding services and the type of counseling services that our school systems, they are often viewed as
and accommodations available for might be included in a child’s IEP as a a luxury for handicapped children.
nonacademic activities to ensure that related service. For these reasons, we
children with disabilities are fully We agree that § 300.108(a) could be
believe it is appropriate to maintain the interpreted to mean that physical
included in nonacademic activities. list of nonacademic and extracurricular
Discussion: We agree with the education must be made available to all
services and activities in § 300.107, children with disabilities, regardless of
commenter. Section 300.107(a), as including those services that are also
proposed, requires public agencies to whether physical education is provided
related services in § 300.34. to children without disabilities. We
take steps to provide nonacademic and
Changes: None. will, therefore, revise paragraph (a) to
extracurricular services and activities in
a manner necessary to afford children Physical Education (§ 300.108) clarify that the public agency has no
with disabilities an equal opportunity to obligation to provide physical education
participate in those services and Comment: A few commenters stated for children with disabilities if it does
activities. In addition, that, in some States, physical education not provide physical education to
§ 300.320(a)(4)(ii), consistent with is not required for every nondisabled nondisabled children attending their
section 614(d)(1)(i)(IV)(bb) of the Act, child every year and this creates schools.
clarifies that an IEP must include a situations in which children with Changes: Section 300.108(a) has been
statement of the special education and disabilities are in segregated physical revised as described in the preceding
related services and supplementary aids education classes. The commenters paragraph.
and services to be provided to the child recommended that the regulations
clarify the requirements for public Full Education Opportunity Goal
to participate in extracurricular and
agencies to make physical education (FEOG) (§ 300.109)
other nonacademic activities. We will
add language in § 300.107(a) to clarify available to children with disabilities Comment: One commenter requested
that the steps taken by public agencies when physical education is not that the regulations clarify how a State
to provide access to nonacademic and available to children without communicates and monitors the
extracurricular services and activities disabilities. progress of the State’s FEOG.
include the provision of supplementary Discussion: Section 300.108 describes Discussion: We do not believe it is
aids and services determined two considerations that a public agency appropriate to regulate how a State
appropriate and necessary by the child’s must take into account to meet the communicates and monitors its progress
IEP Team. physical education requirements in this toward the State’s FEOG. We believe the
Changes: Additional language has section. First, physical education must State should have the flexibility needed
been added in § 300.107(a) to clarify be made available equally to children to implement the provisions of this
that the steps taken by public agencies with disabilities and children without section and the State is in the best
to provide access to nonacademic and disabilities. If physical education is not position to make this determination.
extracurricular services and activities available to all children (i.e., children Changes: None.
include the provision of supplementary with and without disabilities), the
public agency is not required to make Program Options (§ 300.110)
aids and services determined
appropriate and necessary by the child’s physical education available for Comment: A few commenters
IEP Team. children with disabilities (e.g., a district recommended revising § 300.110 to
Comment: One commenter expressed may provide physical education to all require States to ensure that each public
concern about including ‘‘nonacademic children through grade 10, but not to agency have in effect policies,
services’’ in § 300.107, because it is not any children in their junior and senior procedures, and programs to provide
in the Act. The commenter stated that years). Second, if physical education is children with disabilities the variety of
services such as athletics, recreational specially designed to meet the unique educational programs and services
activities and clubs, counseling, needs of a child with a disability and is available to nondisabled children. The
transportation and health services set out in that child’s IEP, those services commenters stated that § 300.110 does
should not be included in the must be provided whether or not they not provide any guidance to educators.
regulations because they may be costly are provided to other children in the A few commenters stated that
and are usually available on a limited agency. ‘‘vocational education is an outdated
basis. One commenter stated that it is This is the Department’s longstanding term’’ and proposed replacing it with
confusing to include related services in interpretation of the requirements in ‘‘career-technical and adult education’’
the examples of nonacademic services § 300.108 and is based on legislative or ‘‘career and technical education.’’
and recommended that they be history that the intent of Congress was Discussion: We do not believe it is
removed. to ensure equal rights for children with necessary to change § 300.110. Under
Discussion: The list of nonacademic disabilities. The regulation as this provision, States must ensure that
and extracurricular services and promulgated in 1977 was based on an public agencies take steps to ensure that
activities in § 300.107(b) is not understanding that physical education children with disabilities have access to

exhaustive. The list provides public was available to all children without the same program options that are
agencies with examples of services and disabilities and, therefore, must be made available to nondisabled children in the
activities that may afford children with available to all children with area served by the agency, whatever
disabilities an equal opportunity for disabilities. As stated in H. Rpt. No. 94– those options are, and we are not aware
participation in the services offered to 332, p. 9, (1975): of any implementation problems with



this requirement. We believe that it is school children whose parents refuse have traditionally been interpreted to
important that educators understand consent. mean identifying and evaluating
that children with disabilities must have Discussion: This issue is addressed in children beginning at birth. While child
access to the same range of programs the Analysis of Comments and Changes find under Part C of the Act overlaps, in
and services that a public agency section for subpart D in response to part, with child find under Part B of the
provides to nondisabled children and comments on § 300.300. Act, the coordination of child find
that the regulation conveys this point. Changes: None. activities under Part B and Part C is an
We also do not believe it is necessary to Comment: One commenter implementation matter that is best left
replace the term ‘‘vocational education’’ recommended retaining current to each State. Nothing in the Act or
with the language recommended by the § 300.125(b) to ensure that the child find these regulations prohibits a Part C lead
commenter. The term is broad in its requirements are retained for parentally- agency’s participation, with the
meaning and generally accepted and placed private school children. agreement of the SEA, in the actual
understood in the field and, therefore, Discussion: Current § 300.125(b) was implementation of child find activities
would encompass such areas as ‘‘career- removed from these regulations because, for infants and toddlers with
technical’’ and ‘‘technical education.’’ under the Act, States are no longer disabilities.
Changes: None. required to have State policies and Changes: None.
Comment: Several commenters procedures on file with the Secretary. Comment: One commenter
requested that the regulations explicitly Furthermore, the Department believes recommended removing § 300.111(c)
state that a child with a disability who the requirements in §§ 300.111 and because child find for children with
has not yet received a regular high 300.131 adequately ensure that developmental delays, older children
school diploma or ‘‘aged out’’ of special parentally-placed private school progressing from grade to grade, and
education may participate in dual children are considered in the child find highly mobile children is not
enrollment programs and receive process. specifically required by the Act.
services in a postsecondary or Changes: None. Discussion: The changes requested by
community-based setting if the IEP Comment: One commenter requested
the commenter cannot be made because
Team decides it is appropriate. a definition of the term ‘‘private
Discussion: Section 300.110, they are inconsistent with the Act.
school,’’ as used in § 300.111.
consistent with section 612(a)(2) of the Section 300.111(a)(1)(i), consistent with
Discussion: The term ‘‘private school’’
Act, requires States to ensure that public section 612(a)(3)(A) of the Act,
as used in § 300.111 means a private
agencies take steps to ensure that explicitly requires that all children with
elementary school or secondary school,
children with disabilities have access to disabilities residing in the State are
including a religious school. The terms
the same program options that are identified, located, and evaluated. This
elementary school and secondary school
available to nondisabled children in the includes children suspected of having
are defined in subpart A of these
area served by the agency. This would developmental delays, as defined in
regulations. The term private is defined
apply to dual enrollment programs in section 602(3)(B) of the Act. We
in 34 CFR Part 77, which applies to this
post-secondary or community-based recognize that it is difficult to locate,
program, and we see no need to include
settings. Therefore, a State would be identify, and evaluate highly mobile and
those definitions here.
responsible for ensuring that a public Changes: None. migrant children with disabilities.
agency that offered dual enrollment Comment: One commenter requested However, we strongly believe it is
programs in post-secondary or that the child find requirements in important to stress in these regulations
community-based settings to a § 300.111(c)(2) include homeless that the States’ child find
nondisabled student would have that children. responsibilities in § 300.111 apply
option available to a student with Discussion: Homeless children are equally to such children. We also
disabilities whose IEP Team determined already included in the child find believe it is important to clarify that a
that such a program would best meet the requirements. Section 300.111(a)(1)(i) child suspected of having a disability
student’s needs. However, we do not clarifies that the State must have but who has not failed, is making
believe that the Act requires public policies and procedures to ensure that academic progress, and is passing from
agencies to provide dual enrollment children with disabilities who are grade to grade must be considered in the
programs in post-secondary or homeless and who are in need of special child find process as any other child
community-based settings for students education and related services, are suspected of having a disability. As
with disabilities, if such programs are identified, located, and evaluated. No noted earlier in the discussion regarding
not available to nondisabled secondary further clarification is needed. § 300.101, paragraph (c)(1) of § 300.111
school students. Therefore, we are not Changes: None. has been revised to clarify that children
modifying the regulations. Comment: A few commenters do not have to fail or be retained in a
Changes: None. recommended including in § 300.111 course or grade in order to be
the requirements in current § 300.125(c), considered for special education and
Child Find (§ 300.111) regarding child find for children from related services.
Comment: Several commenters birth through age two when the SEA Changes: None.
expressed confusion about the child and lead agency for the Part C program Comment: One commenter requested
find requirements in § 300.111 and the are different. The commenters stated that § 300.111 explicitly require that
parental consent requirements in that this will ensure that children with children in residential facilities be
§ 300.300, and requested clarification on disabilities from birth through age two included in the public agency’s child
whether child find applies to private are eligible to participate in child find find process.
school children and whether LEAs may activities when the Part C lead agency Discussion: We believe § 300.111(a),

use the consent override procedures for is not the SEA. consistent with section 612(a)(3)(A) of
children with disabilities enrolled in Discussion: The Department does not the Act, clarifies that the State must
private schools. Two commenters believe it is necessary to retain the ensure that all children with disabilities
requested that § 300.111(a)(1)(i) specify language in current § 300.125(c). The residing in the State are identified,
that child find does not apply to private child find requirements in § 300.111 located, and evaluated. This would



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