Public Law 94-142 EDUCATION 34 Code of Federal Regulation Part 300 Revised as of July 1, 1987 Containing A Codification of Documents of General Applicability and Future Effect Chapter III -- Office of Special Education and Rehabilitation Services PART 300 -- ASSISTANCE TO STATES FOR EDUCATION OF HANDICAPPED CHILDREN Subpart A -- General PURPOSE, APPLICABILITY, AND GENERAL PROVISIONS REGULATIONS Sec. 300.1 Purpose. 300.2 Applicability to State, local, and private agencies. 300.3 Regulations that apply to assistance to States for education of handicapped children. 300.4 Free appropriate public education. 300.5 Handicapped children. 300.6 Include. 300.7 Intermediate educational unit. 300.8 Local educational agency. 300.9 Native language. 300.10 Parent. 300.11 Public Agency. 300.12 Qualified. 300.13 Related services. 300.14 Special education. Subpart B -- State Annual Program Plans and Local Applications ANNUAL PROGRAM PLANS -- GENERAL 300.110 Condition of assistance. 300.111 Contents of plan. ANNUAL PROGRAM PLANS -- CONTENTS 300.121 Right to free appropriate public education. 300.122 Timeliness and ages for free appropriate public education. 300.123 Full educational opportunity goal. 300.124 Full educational opportunity goal -- data requirement. 300.125 Full educational opportunity goal -- timetable. 300.126 Full educational opportunity goal -- facilities, personnel, and services. 300.127 Priorities. 300.128 Identification, location, and evaluation of handicapped children. 300.129 Confidentiality of personally identifiable information. 300.130 Individualized education programs. 300.131 Procedural safeguards. 300.132 Least restrictive environment. 300.133 Protection in evaluation procedures. 300.134 Responsibility of State educational agency for all educational programs. 300.135 [Reserved] 300.136 Implementation procedures -- State educational agency. 300.137 Procedures for consultation. 300.138 Other Federal programs. 300.139 Comprehensive system of personnel development. 300.140 Private schools. 300.141 Recovery of funds for misclassified children. 300.142 -300.143 [Reserved] 300.144 Hearing on application. 300.145 Prohibition of commingling. 300.146 Annual Evaluation. 300.147 State advisory panel. 300.148 Policies and procedures for use of Part B funds. 300.149 Description of use of Part B funds. 300.150 [Reserved] 300.151 Additional information if the State educational agency provides direct services. LOCAL EDUCATIONAL AGENCY APPLICATIONS -- GENERAL 300.180 Submission of application. 300.181 [Reserved] 300.182 The excess cost requirement. 300.183 Meeting the excess cost requirement. 300.184 Excess costs -- computation of minimum amount. 300.185 Computation of excess costs -- consolidated application. 300.186 Excess costs -- limitation on use of Part B funds. 300.190 Consolidated applications. 300.191 [Reserved] 300.192 State regulation of consolidated applications. 300.193 State educational agency approval; disapproval. 300.194 Withholding. LOCAL EDUCATIONAL AGENCY APPLICATIONS -- CONTENTS 300.220 Child identification. 300.221 Confidentiality of personally identifiable information. 300.222 Full educational opportunity goal; timetable. 300.223 Facilities, personnel, and services. 300.224 Personnel development. 300.225 Priorities. 300.226 Parent involvement. 300.227 Participation in regular education programs. 300.228 [Reserved] 300.229 Excess cost. 300.230 Nonsupplanting. 300.231 Comparable services. 300.232 -- 300.234 [Reserved] 300.235 Individualized education program. 300.236 [Reserved] 300.237 Procedural safeguards. 300.238 Use of Part B funds. 300.239 [Reserved] 300.240 Other requirements. APPLICATION FROM SECRETARY OF INTERIOR 300.260 Submission of annual application; approval. 300.261 Public participation. 300.263 Applicable regulations. PUBLIC PARTICIPATION 300.280 PUBLIC hearings before adopting an annual program plan. 300.281 Notice. 300.282 Opportunity to participate; comment period. 300.283 Review of public comments before adopting plan. 300.284 Publication and availability of application plan. Subpart C -- Services FREE APPROPRIATE PUBLIC EDUCATION 300.300 Timeliness for free appropriate public education. 300.301 Free appropriate public education -- methods and payments. 300.302 Residential placement. 300.303 Proper functioning of hearing aids. 300.304 Full educational opportunity goal. 300.305 Program options. 300.306 Nonacademic services. 300.307 Physical education. PRIORITIES IN THE USE OF PART B FUNDS 300.320 Definitions of "first priority children" and "second priority children." 300.321 Priorities. 300.322 First priority children -- school year 1977-1978. 300.323 Services to other children. 300.324 Application of local educational agency to use funds for the second priority. INDIVIDUAL EDUCATION PROGRAMS 300.340 Definition. 300.341 State educational agency responsibility. 300.342 When individualized education programs must be in effect. 300.343 Meetings. 300.344 Participants in meetings. 300.345 Parent participation. 300.346 Content of individualized education program. 300.347 Private school placements. 300.348 Handicapped children in parochial or other private schools. 300.349 Individualized education program -- accountability. DIRECT SERVICE BY THE STATE EDUCATIONAL AGENCY 300.360 Use of local educational agency allocation for direct services. 300.361 Nature and location of services. 300.370 Use of State educational agency allocation for direct and support services. 300.371 State matching. 300.372 Applicability of nonsupplanting requirement. COMPREHENSIVE SYSTEM OF PERSONAL DEVELOPMENT 300.380 Scope of system. 300.381 Participation of other agencies and institutions. 300.382 Inservice training. 300.383 Personnel development plan. 300.384 Dissemination. 300.385 Adoption of educational practices. 300.386 [Reserved] 300.387 Technical assistance to local educational agencies. Subpart D -- Private Schools HANDICAPPED CHILDREN IN PRIVATE SCHOOLS PLACED OR REFERRED BY PUBLIC AGENCIES 300.400 Applicability of Sec. 300.401 -- 300.403. 300.401 Responsibility of State educational agency. 300.402 Implementation by State educational agency. 300.403 Placement of children by parents. HANDICAPPED CHILDREN IN PRIVATE SCHOOLS NOT PLACED OR REFERRED BY PUBLIC AGENCIES. 300.450 Definition of "private school handicapped children." 300.451 State educational agency responsibility. 300.452 Local educational agency responsibility. PROCEDURES FOR BY-PASS 300.480 By-pass-general. 300.481 Provisions for services under a by-pass. DUE PROCESS PROCEDURES 300.482 Notice of intent to implement a by-pass. 300.483 Request to show cause. 300.484 Show cause hearing. 300.485 Decision. 300.486 Judicial review. Subpart E -- Procedural Safeguards DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN 300.500 Definitions of "consent", "evaluation", and "personally identifiable" 300.501 General responsibility of public agencies 300.502 Opportunity to examine records. 300.503 Independent educational evaluation. 300.504 Prior notice parent consent. 300.505 Content of notice. 300.506 Impartial due process hearing. 300.507 Impartial hearing officer. 300.508 Hearing rights. 300.509 Hearing decision: appeal. 300.510 Administrative appeal: impartial review. 300.511 Civil action. 300.512 Timeliness and convenience of hearings and reviews. 300.513 Child's status during proceedings. 300.514 Surrogate parents. PROTECTION IN EVALUATION PROCEDURES 300.530 General. 300.531 Preplacement evaluation. 300.532 Evaluation procedures. 300.533 Placement procedures. 300.534 Reevaluation. ADDITIONAL PROCEDURES FOR EVALUATING SPECIFIC LEARNING DISABILITIES 300.540 Additional team members. 300.541 Criteria for determining the existence of a specific learning disability. 300.542 Observation. 300.543 Written report. LEAST RESTRICTIVE ENVIRONMENT 300.550 General. 300.551 Continuum of alternative placements. 300.552 Placements. 300.553 Nonacademic settings. 300.554 Children in public or private institutions. 300.555 Technical assistance and training activities. 300.556 Monitoring activities. CONFIDENTIALLY OF INFORMATION 300.560 Definitions. 300.561 Notice to parents. 300.562 Access rights. 300.563 Record of access. 300.564 Records on more than one child. 300.565 List of types and locations of information. 300.566 Fees. 300.567 Amendment of records at parent's request. 300.568 Opportunity for a hearing. 300.569 Result of hearing. 300.570 Hearing procedures. 300.571 Consent. 300.572 Safeguards. 300.573 Destruction of information. 300.574 Children's rights. 300.575 Enforcement. 300.576 Department. DEPARTMENT PROCEDURES 300.580 [Reserved] 300.581 Disapproval of a State plan. 300.582 Content of notice. 300.583 Hearing Official or Panel. 300.584 Hearing procedures. 300.585 Initial decision; final decision 300.586 Judicial review. 300.587-300.588 [Reserved] Subpart F -- State Administration STATE EDUCATIONAL AGENCY RESPONSIBILITIES: GENERAL 300.600 Responsibility for all educational programs. USE OF FUNDS 300.620 Federal funds for State administration. 300.621 Allowable costs. STATE ADVISORY PANEL 300.650 Establishment. 300.651 Membership. 300.652 Advisory panel functions. 300.653 Advisory panel procedures. Subpart G -- Allocation of Funds; Reports ALLOCATIONS 300.700 Special definition of the term State. 300.701 State entitlement; formula. 300.702 Limitations and exclusions. 300.703 Ratable reductions. 300.704 Hold harmless provision. 300.705 Within-State distribution; Fiscal year 1978. 300.706 Within-State distribution; Fiscal year 1979 and after. 300.707 Local educational agency entitlements; formula. 300.708 Reallocation of local educational agency funds. 300.709 Payments to Secretary of Interior. 300.710 Entitlements to jurisdictions. REPORTS 300.750 Annual report of children served--report requirement. 300.751 Annual report of children served--information required in the report. 300.752 Annual report of children served--certification. 300.753 Annual report of children served--criteria for counting children. 300.754 Annual report of children served--other responsibilities of the State educational agency. APPENDIX A -- [RESERVED] APPENDIX B -- INDEX TO PART 300 (20 U.S.C. 1411-1420) unless otherwise noted. SOURCE: 42 FR 42476. Aug 23, 1977, unless otherwise noted. Redesigned at 45 FR 77368. Nov. 21, 1980. Subpart A -- General PURPOSE APPLICABILITY, AND GENERAL PROVISIONS REGULATIONS SEC 300.1 Purpose. The purpose of this part is: (a) To insure that all handicapped children have available to them a free appropriate public education which includes special education and related services to meet their unique needs, (b) To insure that the rights of handicapped children and their parents are protected, (c) To assist States and localities to provide for the children, and (d) To assess and insure the effectiveness of efforts to educate those children. (20 U.S.C. 1401 Note) SEC. 300.2 Applicability to State, local, and private agencies. (a) States. This part applies to each State which receives payments under Part B of the Education of the Handicapped Act. (b) Public agencies within the State. The annual program plan is submitted by the State educational agency on behalf of the State as a whole. Therefore, the provisions of this part apply to all political subdivisions of the State that are involved in the education of handicapped children. These would include: (1) The State educational agency, (2) local Educational units, (3) other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for the deaf or blind), and (4) State correctional facilities. (c) Private schools and facilities. Each public agency in the State is responsible for insuring that the rights and protections under this part are given to children referred to or placed in private schools and facilities by that public agency. (See Sections 300.400-300.403) (20 U.S.C. 1412(1), (6); 1413(a); 1413(a)(4)(B)) Comment. The requirements of this part are binding on each public agency that has direct or delegated authority to provide special education and related services in a State that receives funds under part B of this Act, regardless of whether that agency is receiving funds under part B. SEC. 300.3 Regulations that apply to assistance to States for education of handicapped children. (a) Regulations. The following regulations apply to this program of Assistance to States for Education of Handicapped Children. (1) The Education Department General Administrative Regulations (EDGAR) in 34 CFR Part 76 (State-Administered Programs) and Part 77 (Definitions). (2) The regulations in this Part 300. (b) How to use regulations; how to apply for funds. The "Introduction to Regulations of the Department" at the beginning of EDGAR includes general information to assist in: (1) Using regulations that apply to Department programs; and (2) Applying for assistance under a Department program. (20 U.S.C. 121e-3(a)(1)) DEFINITIONS Comment. Definitions of terms that are used throughout these regulations are included in this subpart. Other terms are defined in the specific subparts in which they are used. Below is a list of those terms and the specific sections and subparts in which they are defined: Consent (Sec. 300.500 of Subpart E) Destruction (Sec. 300.560 of Subpart E) Direct services (Sec. 300.370 (b)(1) of Subpart C) Evaluation (Sec. 300.500 of Subpart E) First priority children (Sec. 300.320(a) of Subpart C) Independent educational evaluation (Sec. 300.503 of Subpart E) Individualized education program. (Sec. 300.340 of Subpart C) Participating agency (Sec. 300.560 of Subpart E) Personally identifiable (Sec. 300.500 of Subpart E) Private school handicapped children (Sec. 300.450 of Subpart D) Public Expense (Sec. 300.503 of Subpart E) Second priority children (Sec. 300.320(b) of Subpart C) Special definition of "State" (Sec. 300.700 of Subpart G) Support services (Sec. 300.370(b)(2) of Subpart C) [42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980] SEC. 300.4 Free appropriate public education. As used in this part, the term "free appropriate public education" means special education and related services which: (a) Are provided at public expense, under public supervision and direction, and without charge. (b) Meet the standards of the State educational agency, including the requirements of this part, (c) Include preschool, elementary school, or secondary school education in the State involved, and (d) Are provided in conformity with an individualized education program which meets the requirements under SEC 300.340- 300.349 of Subpart C. (20 U.S.C. 1401(18)) SEC. 300.5 (a) As used in this part, the term "handicapped children" means those children evaluated in accordance with SEC. 300.350- 300.534 as being mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, other health impaired, deaf-blind, multi-handicapped, or as having specific learning disabilities, who because of those impairments needs special education and related services. (b) The terms used in this definition are defined as follows: (1) "Deaf" means a hearing impairment which is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, which adversely affects educational performance. (2) "Deaf-blind" means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational problems that they cannot be accommodated in special education programs solely for deaf or blind children. (3) "Hard of Hearing" means a hearing impairment, whether permanent or fluctuating, which adversely affects a child's educational performance but which is not included under the definition of "deaf" in this section. (4) "Mentally retarded" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, which adversely affects a child's educational performance. (5) "Multihandicapped" means concomitant impairments (such as mentally retarded--blind, mentally retarded-- orthopedically impaired, etc.), the combination of which causes such severe educational problems that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf- blind children. (6) "Orthopedically impaired" means a severe orthopedic impairment which adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g. poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns which cause contractures.) (7) "Other health impaired" means (i) having an autistic condition which is manifested by severe communication and other developmental and educational problems; or (ii) having limited strength, vitality or alertness, due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes, which adversely affects a child's educational performance. (8) "Seriously emotionally disturbed" is defined as follows: (i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance: (A) An inability to learn which cannot be explained by intellectual, sensory, or health factors; (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (C) Inappropriate types of behavior or feelings under normal circumstance; (D) A general pervasive mood of unhappiness or depression; or (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (ii) The term includes children who are schizophrenic. The term does not include children who are socially maladjusted, unless it is determined that they are seriously emotionally disturbed. (9) "Specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, minimal brain disfunction, dyslexia, and developmental aphasia. The term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, of mental retardation of emotional disturbances or of environmental, cultural, or economic disadvantage. (10) "Speech impaired" means a communication disorder such as stuttering, impaired articulation, a language impairment, or a voice impairment, which adversely affects a child's educational performance. (11) "Visually handicapped" means a visual impairment which, even with correction, adversely affects the child's educational performance. The term includes both partially seeing and blind children. (20 U.S.C. 1401(1),(15)) [42 FR 42476, Aug. 23, 1977, as amended at 42 FR 65083, Dec. 29, 1977. Redesignated at 45 FR 77368, Nov. 21, 1980, and further amended at 46 FR 3866, Jan. 16, 1981] SEC. 300.6 Include. As used in this part, the term "include" means that the items named are not all of the possible items that are covered, whether like or unlike the ones named. (20 U.S.C. 1417(b)) SEC. 300.7 Intermediate educational unit. As used in this part, the term "intermediate educational unit" means any public authority, other than a local educational agency, which: (a) Is under the general supervision of a State educational agency; (b) Is established by State law for the purpose of providing free public education on a regional basis; and (c) Provides special education and related services to handicapped children within that State. (20 U.S.C. 1401 (22)) SEC. 300.8 Local education agency. (a) [Reserved] (b) For the purposes of this part, the term "local educational agency" also includes intermediate educational units. (20 U.S.C. 1401(8)) [42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr.3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980] SEC. 300.9 Native language. As used in this part, the term "native language" has the meaning given that term by section 703(a)(2) of the Bilingual Education Act, which provides as follows: The term "native language", when used with reference to a person of limited English-speaking ability, means the language normally used by that person, or in the case of child, the language normally used by the parents of the child. (20 U.S.C. 880-b1(a)(2); 1401(21)) Comment. Section 602(21) of the Education of the Handicapped Act states that the term "native language" has the same meaning as the definition from the Bilingual Education Act. (The term is used in the prior notice and evaluation sections under Sec. 300.505(b)(2) and Sec. 300.532(a)(1) of Subpart E.) In using the term, the Act does not prevent the following means of communication: (1) In all direct contact with a child (including evaluation of the child), communication would be that normally used by the child and not that of the parents, if there is a difference between the two. (2) If a person is deaf or blind, or has no written language, the mode of communication would be that normally used by the person (such as sign language, braille, or oral communication). SEC. 300.10 Parent. As used in this part, the term "parent" means a parent, a guardian, a person acting as a parent of a child, or a surrogate parent who has been appointed in accordance with SEC. 300.514. The term does not include the State if the child is a ward of the State. Comment. The term "parent" is defined to include persons acting in the place of a parent, such as a grandmother or stepparent with whom a child lives, as well as persons who are legally responsible for a child's welfare. (20 U.S.C. 1415) Comment. The term "parent" is defined to include persons acting in the place of a parent, such as a grandmother or stepparent with whom a child lives, as well as persons who are legally responsible for a child's welfare. SEC. 300.11 Public agency. As used in this part, the term "public agency" includes the State educational agency, local educational agencies, intermediate educational units, and any other political subdivision of the State which are responsible for providing education to handicapped children. (20 U.S.C 1412(2)(B); 1412(6); 1413(a)) SEC. 300.12 Qualified. As used in this part, the term "qualified" means that a person has met State educational agency approved or recognized certification, licensing, registration, or other comparable requirements which apply to the area in which he or she is providing special education or related services. (20 U.S.C. 1417(b)) SEC. 300.13 Related services. (a) 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 handicapped child to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. (b) The terms used in this definition are defined as follows: (1) "Audiology" includes: (i) Identification of children with hearing loss; (ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing; (iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lipreading), hearing evaluation, and speech conservation; (iv) Creation and administration of programs for prevention of hearing loss; (v) Counseling and guidance of pupils, parents, and teachers regarding hearing loss; and (vi) Determination of the child's need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification. (2) "Counseling services" means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. (3) "Early identification" means the implementation of a formal plan for identifying a disability as early as possible in a child's life. (4) "Medical services" means services provided by a licensed physician to determine a child's medically related handicapping condition which results in the child's need for special education and related services. (5) "Occupational therapy" includes: (i) Improving, developing or restoring functions impaired or lost through illness, injury, or deprivation; (ii) Improving ability to perform tasks for independent functioning when functions are impaired or lost; and (iii) Preventing, through early intervention, initial or further impairment or loss of function. (6) "Parent counseling and training" means assisting parents in understanding the special needs of their child and providing parents with information about child development. (7) "Physical therapy" means services provided by a qualified physical therapist. (8) "Psychological services" include: (i) Administering psychological and educational tests, and other assessment procedures; (ii) Interpreting assessment results; (iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning. (iv) Consulting with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations; and (v) Planning and managing a program of psychological services, including psychological counseling for children and parents. (9) "Recreation" includes: (i) Assessment of leisure function; (ii) Therapeutic recreation services; (iii) Recreation programs in schools and community agencies; and (iv) Leisure Education. (10) "School health services" means services provided by a qualified school nurse or other qualified person. (11) "Social work services in schools" include: (i) Preparing a social or developmental history on a handicapped child; (ii) Group and individual counseling with the child and the family; (iii) Working with those problems in a child's living situation (home, school, and community) that affect the child's adjustment in school; and (iv) Mobilizing school and community resources to enable the child to receive maximum benefit from his or her educational program. (12) "Speech pathology" includes: (i) Identification of children with speech or language disorders; (ii) Diagnosis and appraisal of specific speech or language disorders; (iii) Referral for medical or other professional attention necessary for the habilitation of speech or language disorders; (iv) Provisions of speech and language services for the habilitation or prevention of communicative disorders; and (v) Counseling and guidance of parents, children, and teachers regarding speech and language disorders. (13) "Transportation" includes: (i) Travel to and from school 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 handicapped child. (20 U.S.C. 1401 (17)) Comment. With respect to related services, the Senate Report states: The Committee bill provides a definition of "related services" making clear that all such related services may not be required for each individual child and that such term includes early identification and assessment of handicapping conditions and the provisions of services to minimize the efforts of such conditions. (Senate Report No. 94-168, p. 12 (1975)) The list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as artistic and cultural programs , and art, music, and dance therapy), if they are required to assist a handicapped child to benefit from special education. There are certain kinds of services which might be provided by persons from varying professional backgrounds and with a variety of operational titles, depending upon requirements in individual States. For example, counseling services might be provided by social workers, psychologists, or guidance counselors; and psychological testing might be done by qualified psychologists, depending upon State standards. Each related service defined under this part may include appropriate administrative and supervisory activities that are necessary for program planning, management, and evaluation. SEC. 300.14 Special Education. (a) (1) As used in this part, the term "special education" means specially designed instruction, at no-cost to the parent, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions. (2) The term includes speech pathology, or any other related service, if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a handicapped child, and is considered "special education" rather than a "related service" under State standards. (3) The term also includes vocational education if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a handicapped child. (b) The terms in this definition are defined as follows: (1) "At no cost" means that all specially designed instruction is provided without charge, but does nor preclude incidental fees which are normally charged to non-handicapped students or their parents as a part of the regular education program. (2) "Physical education" is defined as follows: (i) The term means the development of: (A) Physical and motor fitness; (B) Fundamental motor skills and patterns; and (C) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports.) (ii) The term includes special physical education, adapted physical education, movement education, and motor development. (20 U.S.C. 1401(16)) (3) "Vocational education" means organized educational programs which are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree. (20 U.S.C. 1401 (16)) Comment. (1) The definition of "special education" is a particularly important one under these regulations, since a child is not handicapped unless he or she needs special education. (See the definition of "handicapped children" in SEC. 300.5) The definition of related services" (Sec. 300.13) also depends on this definition, since a related service must be necessary for a child to benefit from special education. Therefore, if a child does not need special education, there can be no "related services," and the child (because not "handicapped") is not covered under the Act. (2) The above definition of vocational education is taken from the Vocational Education Act of 1963, as amended by Pub. L. 94-482. Under this Act, "vocational education" includes industrial arts and consumer and homemaking education programs. Subpart B -- State Annual Program Plans and Local Applications ANNUAL PROGRAM PLANS -- GENERAL SEC. 300.110 Condition of assistance. In order to receive funds under Part B of the Act for any fiscal year, a State must submit an annual program plan to the Secretary through its State educational agency. (20 U.S.C. 1232c(b), 1412, 1413) SEC. 300.111 Contents of plan. Each annual program plan must contain the provisions required in this subpart. (20 U.S.C. 1412, 1413, 1232c(b)) ANNUAL PROGRAM PLANS -- CONTENTS SEC. 300.121 Right to a free appropriate public education. (a) Each annual program plan must include information which shows the State has in effect a policy which insures that all handicapped children have the right to a free appropriate public education within the ranges and timelines under Sec. 300.122. (b) The information must include a copy of each State statute, court order, State Attorney General opinion, and other State document that shows the source of the policy. (c) The information must show that the policy: (1) Applies to all public agencies in the State; (2) Applies to all handicapped children; (3) Implements the priorities established under Sec. 300.127(a)(1) of the subpart; and (4) Establishes timelines for implementing the policy, in accordance with Sec. 300.122. (20 U.S.C. 1412(1)(2)(B), (6); 1413(a)(3)) SEC. 300.122 Timeliness and ages for free appropriate public education. (a) General. Each annual program plan must include in detail the policies and procedures which the State will undertake or has undertaken in order to insure that a free appropriate public education is available for all handicapped children aged three through eighteen within the State not later than September 1, 1980. (b) Documents relating to timeliness. Each annual program plan must include a copy of each statute, court order, attorney general decision, and other State document which demonstrates that the State has established timelines in accordance with paragraph (a) of this section. (c) Exception. The requirement in paragraph (a) of this section does not apply to a State with respect to handicapped children aged three, four, five, eighteen, nineteen, twenty, or twenty-one to the extent that the requirement would be inconsistent with State law or practice, or the order of any court, respecting public education for one or more of those age groups in the State. (d) Documents relating to exceptions. Each annual program plan must: (1) Describe in detail the extent to which the exception in paragraph (c) of this section applies to the State, and (2) Include a copy of each State law, court order, and other document which provides a basis for the exception. (20 U.S.C. 1412(2)(B)) SEC. 300.123 Full educational opportunity goal. Each annual program plan must include in detail the policies and procedures which the State will undertake, or has taken, in order to insure that the State has a goal of providing full educational opportunity to all handicapped children aged birth through twenty-one. (20 U.S.C. 1412(2)(A)) SEC. 300.124 Full educational opportunity goal -- data requirement. Beginning with school year 1978-1979, each annual program plan must contain the following information: (a) The estimated number of handicapped children who need special education and related services. (b) For the current school year: (1) The number of handicapped children aged birth through two, who are receiving special education and related services; and (2) The number of handicapped children: (i) Who are receiving a free appropriate public education, (ii) Who need, but are not receiving a free appropriate public education, (iii) Who are enrolled in public and private institutions who are receiving a free appropriate public education, and (iv) Who are enrolled in public and private institutions and are not receiving a free appropriate public education. (c) The estimated numbers of handicapped children who are expected to receive special education and related services during the next school year. (d) A description of the basis used to determine the data required under this section. (e) The data required by paragraphs (a), (b), and (c) of this section must be provided: (1) For each disability category (except for children aged birth through two), and (2) For each of the following age ranges: birth through two, three through five, six through seventh, and eighteen through twenty-one. (20 U.S.C. 1412(2)(A)) Comment. In Part B of the Act, the term "disability" is used interchangeably with "handicapping condition". For consistency in this regulation, a child with a "disability" means a child with one of the impairments listed in the definition of "handicapped children in Sec. 300.5, if the child needs special education because of the impairment. In essence, there is a continuum of impairments. When an impairment is of such a nature that a child needs special education, it is referred to as a disability, in these regulations, and the child is a "handicapped" child. States should note that data required under this section are not to be transmitted to the Secretary in personally identifiable form. Generally, except for such purposes as monitoring and auditing, neither the States nor the Federal Government should have to collect data under this part in personally identifiable form. SEC. 300.125 Full educational opportunity goal -- timetable. (a) General requirement. Each annual program plan must contain a detailed timetable for accomplishing the goal of providing full educational opportunity of all handicapped children. (b) Content of timetable. (1) The timetable must indicate what percent of the total estimated number of handicapped children the State expects to have full educational opportunity in each succeeding school year. (2) The data required under this paragraph must be provided: (i) For each disability category (except for children aged birth through two), and (ii) For each of the following age ranges: birth through two, three through five, six through seventeen, and eighteen through twenty-one. (20 U.S.C. 1412(2)(A)) SEC. 300.126 Full educational opportunity goal -- facilities, personnel, and services. (a) General requirement. Each annual program plan must include a description of the kind and number of facilities, personnel, and services necessary throughout the State to meet the goal of providing full educational opportunity for all handicapped children. The State educational agency shall include the data required under paragraph (b) of this section and whatever additional data are necessary to meet the requirement. (b) Statistical description. Each annual program plan must include the following data: (1) The number of additional special class teachers, resource room teachers, and intinerant or consultant teachers needed for each disability category and the number of each of these who are currently employed in the State. (2) The number of other additional personnel needed, and the number currently employed in the State, including school psychologists, school social workers, occupational therapists, physical therapists, home-hospital teachers, speech-language pathologists, audiologists, teacher aides, vocational education teachers, work study coordinators, physical education teachers, therapeutic recreation specialists, diagnostic personnel, supervisors, and other instructional and non- instructional staff. (3) The total number of personnel reported under paragraphs (b)(1) and (2) of this section, and the salary costs of those personnel. (4) The number and kind of facilities needed for handicapped children and the number and kind currently in use in the State, including regular classes serving handicapped children, self-contained classes on a regular school campus, resource rooms, private special education day schools, private education residential schools, public special education residential schools, hospital programs, occupational therapy facilities, physical therapy facilities, public sheltered workshops, private sheltered workshops, and other type of facilities. (5) The total number of transportation units needed for handicapped children, the number of transportation units designed for handicapped children which are in use in the State, and the number of handicapped children who use these units to benefit from special education. (c) Data categories. The data required under paragraph (b) of this section must be provided as follows: (1) Estimates for serving all handicapped children who require special education and related services. (2) Current year data, based on the actual numbers of handicapped children receiving special education and related services (as reported under Subpart G), and (3) Estimates for the next school year. (d) Rationale. Each annual program plan must include a description of the means used to determine the number and salary costs of personnel. (20 U.S.C. 1412(2)(A)) SEC. 300.127 Priorities. (a) General requirement. Each annual program plan must include information which shows that: (1) The State has established priorities which meet the requirements under Sections 300.320-300.324 of Subpart C. (2) The State priorities meet the timelines under SEC. 300.122 of this subpart, and (3) The State has made progress in meeting those timelines. (b) Child data. (1) Each annual program plan must show the number of handicapped children known by the State to be in each of the first two priority groups named in SEC. 300.321 of Subpart C: (i) By disability category, and (ii) By the age ranges in SEC. 300.124(e)(2) of this subpart. (c) Activities and resources. Each annual program plan must show for each of the first two priority groups: (1) The programs, services, and activities that are being carried out in the State. (2) The Federal, State, and local resources that have been committed during the current school year, and (3) The programs, services, activities, and resources that are to be provided during the next school year. (20 U.S.C. 1412(3)) SEC. 300.128 Identification, location, and evaluation of handicapped children. (a) General requirement. Each annual program plan must include in detail the policies and procedures which the State will undertake or has undertaken to insure that: (1) All children who are handicapped, regardless of the severity of their handicap, and who are in need of special education and related services are identified, located, and evaluated; and (2) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services and which children are not currently receiving needed special education and related services. (b) Information. Each annual program plan must: (1) Designate the State agency (if other than State educational agency) responsible for coordinating the planning and implementation of the policies and procedures under paragraph (a) of this section; (2) Name each agency that participates in the planning and implementation and describe the nature and extent of its participation; (3) Describe the extent to which: (i) The activities described in paragraph (a) of this section have been achieved under the current annual program plan, and (ii) The resources named for these activities in that plan have been used; (4) Describe each type of activity to be carried out during the next school year, including the role of the agency named under paragraph (b)(1) of this section, timelines for completing those activities, resources that will be used, and expected outcomes; (5) Describe how the policies and procedures under paragraph (a) of this section will be monitored to insure that the State educational agency obtains: (i) The number of handicapped children within each disability category that have been identified, located, and evaluated, and (ii) Information adequate to evaluate the effectiveness of those polices and procedures; and (6) Describe the method the State uses to determine which children are currently receiving special education and related services and which children are not receiving special education and related services. (20 U.S.C. 1412(2)(C)) Comment. The State is responsible for insuring that all handicapped children are identified, located, and evaluated, including children in all public and private agencies and institutions in the State. Collection and use of data are subject to the confidentiality requirements in Sections 300.560-300.576. SEC. 300.129 Confidentiality of personally identifiable information. (a) Each annual program plan must include in detail the policies and procedures which the State will undertake or has undertaken in order to insure the protection of the confidentiality of any personally identifiable information collected, used, or maintained under this part. (b) The Secretary shall use the criteria in Sections 300.560- 300.576 of Subpart E to evaluate the policies and procedures of the State under paragraph (a) of this section. (20 U.S.C. 1412(2)(D); 1417(c)) Comment. The confidentiality regulations were published in the FEDERAL REGISTER in final form on February 27, 1976 (41 FR 8603-8610), and met the requirements of Part B of the Act, as amended by Pub. L. 94-142. Those regulations are incorporated in Sections 300.560-300.576 of Subpart E. SEC. 300.130 Individualized education programs. (a) Each annual program plan must include information which shows that each public agency in the State maintains records of the individualized education program for each handicapped child, and each public agency establishes, reviews, and revises each program as provided in Subpart C. (b) Each annual program plan must include: (1) A copy of each State statute, policy, and standard that regulates the manner in which individualized education programs are developed, implemented, reviewed, and revised, and (2) The procedures which the State educational agency follows in monitoring and evaluating those programs. (20 U.S.C. 1412(4)) SEC. 300.131 Procedural safeguards. (a) Each annual program plan must include procedural safeguards which insure that the requirements in Sections 300.500- 300.514 of Subpart E are met. (20 U.S.C. 1412(5)(A)) SEC. 300.132 Least restrictive environment. (a) Each annual program plan must include procedures which insure that the requirements in Sections 300.550-300.556 of Subpart E are met. (b) Each annual program plan must include the following information: (1) The number of handicapped children in the State, within each disability category, who are participating in regular education programs consistent with Sections 300.550-300.556 of Subpart E. (2) The number of handicapped children who are in separate classes or otherwise removed from the regular education environment. (20 U.S.C. 1412(5)(B)) SEC. 300.133 Protection in evaluation procedures. Each annual program plan must include procedures which insure that the requirements in Sections 300.530-300.534 of Subpart E are met. (20 U.S.C. 1412(5)(C)) SEC. 300.134 Responsibility of State educational agency for all educational programs. (a) Each annual program plan must include information which shows that the requirements in Section 300.600 of Subpart F are met. (b) The information under paragraph (a) of this section must include a copy of each State statute, State regulation, signed agreement between respective agency officials, and any other document that shows compliance with that paragraph. (20 U.S.C. 1412(6)) SEC. 300.135 [Reserved] SEC. 300.136 Implementation procedures -- State educational agency. Each annual program plan must describe the procedures the State educational agency follows to inform each public agency of its responsibility for insuring effective implementation of procedural safeguards for the handicapped children served by that public agency. (20. U.S.C. 1412(6)) SEC. 300.137 Procedures for consultation. Each annual program plan must include an assurance that in carrying out the requirements of section 612 of the Act, procedures are established for consultation with individuals involved in or concerned with the education of handicapped children, including handicapped individuals and parents of handicapped children. (20 U.S.C. 1412 (7)(A)) SEC. 300.138 Other Federal programs. Each annual program plan must provide that programs and procedures are established to insure that funds received by the State or any public agency in the State under any other Federal program, including section 121 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 241e-2), section 305(b)(8) of that Act (20 U.S.C. 844a(b)(8)) or Title IV-C of that Act (20 U.S.C. 1831). and section 110(a) of the Vocational Education Act of 1963, under which there is specific authority for assistance for the education of handicapped children, are used by the State, or any public agency in the State, only in a manner consistent with the goal of providing free appropriate public education for all handicapped children, except that nothing in this section limits the specific requirements of the laws governing those Federal programs. (20 U.S.C. 1413(a)(2)) SEC. 300.139 Comprehensive system of personnel development. Each annual program plan must include the material required under sections 300.380-300.387 of Subpart C. (20 U.S.C. 1413(a)(3)) SEC. 300.140 Private schools. Each annual program plan must include policies and procedures which insure that the requirements of Subpart D or met. (20 U.S.C. 1413(a)(4)) SEC. 300.141 Recovery of funds for misclassified children. Each annual program plan must include policies and procedures which insure that the State seeks to recover any funds provided under Part B of the Act for services to a child who is determined to be erroneously classified as eligible to be counted under section 611(a) or (d) of the Act. (20 U.S.C. 1413(a)(5)) SEC. 300.142-300.143 [Reserved] SEC. 300.144 Hearing on application. Each annual program plan must include procedures to insure that the State educational agency does not take any final action with respect to an application submitted by a local educational agency before giving the local educational agency reasonable notice and an opportunity for a hearing. (20 U.S.C. 1413(a)(8)) SEC. 300.145 Prohibition of commingling. Each annual program plan must provide assurance satisfactory to the Secretary that funds provided under Part B of the Act are not commingled with State funds. (20 U.S.C. 1413(a)(9)) Comment. This assurance is satisfied by the use of a separate accounting system that includes an "audit trail" of the expenditure of the Part B funds. Separate bank accounts are not required. (See 34 CFR 76, Subpart F (Cash Depositories)) SEC. 300.146 Annual evaluation. Each annual program plan must include procedures for evaluation at least annually of the effectiveness of the programs in meeting the educational needs of handicapped children, including evaluation of individualized education programs. (20 U.S.C. 1413(a)(11)) SEC. 300.147 State advisory panel. Each annual program plan must provide that the requirements of Sections 300.650-300.653 of Subpart F are met. (20 U.S.C. 1413(a)(12)) SEC. 300.148 Policies and procedures for use of Part B funds. Each annual program plan must set forth policies and procedures designed to insure that funds paid to the State under Part B of the Act are spent in accordance with the provisions of Part B, with particular attention given to sections 611(b), 611(c), 611(d), 612(2), and 612(3) of the Act. (20 U.S.C. 1413(a)(1)) SEC. 300.149 Description of use of Part B funds. (a) State allocation. Each annual program plan must include the following information about the State's use of funds under Section 300.370 of Subpart C and Section 300.620 of Subpart F: (1) A list of administrative positions, and a description of duties for each person whose salary is paid in whole or in part with those funds. (2) For each position, the percentage of salary paid with those funds. (3) A description of each administrative activity the State educational agency will carry out during the next school year with those funds. (4) A description of each direct service and each support service which the State educational agency will provide during he next school year with those funds, and the activities the State advisory panel will undertake during that period with those funds. (b) Local educational agency allocation. Each annual program plan must include: (1) An estimate of the number and percent of local educational agencies in the State which will receive an allocation under this part (other than local educational agencies which submit a consolidated application), (2) An estimate of the number of local educational agencies which will receive an allocation under a consolidation application, (3) An estimate of the number of consolidated applications and the average number of local educational agencies per application, and (4) A description of direct services the State educational agency will provide under Sec. 300.360 of Subpart C. (20 U.S.C. 1232c(b)(1)(B)(ii)) SEC. 300.150 [Reserved] SEC. 300.151 Additional information if the State educational agency provides direct services. If a State educational agency provides free appropriate public education for handicapped children or provides them with direct services, its annual program plan must include the information required under Sections 300.226-300.228, 300.231, and 300.235. (20 U.S.C. 1413(b)) LOCAL EDUCATIONAL AGENCY APPLICATIONS -- GENERAL SEC. 300.180 Submission of application. In order to receive payments under Part B of the Act for any fiscal year a local educational agency must submit an application to the State educational agency. (20 U.S.C. 1414(a)) SEC. 300.181 [Reserved] SEC. 300.182 The excess cost requirement. A local educational agency may only use funds under Part B of the Act for the excess costs of providing special education and related services for handicapped children. (20 U.S.C. 1414 (a)(1), (a)(2)(B)(i)) SEC. 300.183 Meeting the excess cost requirement. (a) A local educational agency meets the excess cost requirement if it has on the average spent at least the amount determined under Sec. 300.184 for the education of each of its handicapped children. This amount may not include capital outlay or debt service. (20 U.S.C. 1402(20); 1414(a)(1)) Comment. The excess cost requirement means that the local educational agency must spend a certain minimum amount for the education of its handicapped children before Part B funds are used. This insures that children served with Part B funds have at least the same average amount spent on them, from sources other than Part B, as do the children in the school district taken as a whole. The minimum amount that must be spent for the education of handicapped children is computed under a statutory formula. Section 300.184 implements this formula and gives step-by-step method to determine the minimum amount. Excess costs are those costs of special education and related services which exceed the minimum amount. Therefore, if a local educational agency can show that it has (on the average) spent the minimum amount for the education of each of its handicapped children, it has met the excess cost requirement, and all additional costs are excess costs. Part B funds can then be used to pay for these additional costs, subject to the other requirements of Part B (priorities, etc.). In the "Comment" under Sec. 300.184, there is an example of how the minimum amount is computed. [42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980] SEC. 300.184 Excess costs -- computation of minimum amount. The minimum average amount a local educational agency must spend under Sec. 300.183 for the education of each of its handicapped children is computed as follows: (a) Add all expenditures of the local educational agency in the preceding school year, except capital outlay and debt service: (1) For elementary school students, if the handicapped child is an elementary school student, or (2) For secondary school students, if the handicapped child is a secondary school student. (b) From this amount, subtract the total of the following amounts spent for elementary school students or for secondary school students, as the case may be: (1) Amounts the agency spent in the preceding school year from funds awarded under Part B of the Act and Titles I and VII of the Elementary and Secondary Education Act of 1965, and (2) Amounts from State and local funds which the agency spent in the preceding school year for: (i) Programs for handicapped children, (ii) Programs to meet the special educational needs of educationally deprived children, and (iii) Programs of bilingual education for children with limited English speaking ability. (c) Divide the result under paragraph (b) of this section by the average number of students enrolled in the agency in the preceding school year: (1) In its elementary schools, if the handicapped child is an elementary student, or (2) In its secondary schools, if the handicapped child is a secondary student. (20 U.S.C. 1414(a)(1)) Comment. The following is an example of how a local educational agency might compute the average minimum amount it must spend for the education of each of its handicapped children, under Sec. 300.183. This example follows the formula in Sec. 300.184. Under the statute and regulations, the local educational agency must make one computation for handicapped children in its elementary schools and a separate computation for handicapped children in its secondary schools. The computation for handicapped elementary school students would be done as follows: a. First, the local educational agency must determine its total amount of expenditures for elementary school students from all sources -- local, State, and Federal (including Part B) -- in the preceding school year. Only capital outlay and debt service are excluded. Example: A local educational agency spent the following amounts last year for elementary school students (including its handicapped elementary school students): (1) From local tax funds............. $2,750,000 (2) From State funds................. 7,000,000 (3) From Federal funds............... 750,000 ----------- 10,500,000 Of this total, $500,000 was for capital outlay and debt service relating to the education of elementary school students. This must be subtracted from total expenditures: 10,500,000 -500,000 ------------------------------------------------- Total expenditures for elementary school students (less capital outlay and debt service) = 10,000,000 b. Next, the local educational agency must subtract amounts spent for: (1) Programs for handicapped children; (2) Programs to meet the special educational needs of educationally deprived children; and (3) Programs of bilingual education for children with limited English speaking ability. These are funds which the local educational agency actually spent, nor funds received last year bit carried over for the current school year. Example: The local educational agency spent the following amounts for elementary school students last year: (1) From funds under Title I of the Elementary and Secondary Education Act of 1965........................ $300,000 (2) From a special State program for educationally deprived children.... 200,000 (3) From a grant under Part B.......... 200,000 (4) From State funds for the education of handicapped children............ 500,000 (5) From locally-funded program for handicapped children............... 250,000 (6) From a grant for a bilingual education program under Title VII of the Elementary and Secondary Education Act of 1965.............. 150,000 ---------- Total....................... 1,600,000 (A local educational agency would also include any other funds it spent from Federal, State, or local sources for the three basic purposes: Handicapped children, educationally deprived children, and bilingual education for children with limited English speaking ability.) This amount is subtracted from the local educational agency's total expenditure for elementary school students computed above: $10,000,000 -1,600,000 ------------- 8,400,000 c. The local educational agency next must divide by the average number of students enrolled in the elementary schools of the agency last year (including its handicapped students). Example: Last year, an average of 7,000 students were enrolled in the agency's elementary schools. This must be divided into the amount computed under the above paragraph: $8,400,000/7,000 students = $1,200/student This figure is in the minimum amount the local educational agency must spend (on the average) for the education of each of its handicapped students. Funds under Part B may be used only for costs over and above this minimum. In this example, if the local educational agency has 100 handicapped elementary school students, it must keep records adequate to show that it has spent at least $120,000 for the education of those students (100 students times $1,200/student), not including capital outlay and debt service. This $120,000 may come from any funds except funds under Part B, subject to any legal requirements that govern the use of those other funds. If the local educational agency has handicapped secondary school students, it must so the same computation for them. However the amounts used in the computation would be those the local educational agency spent last year for the education of secondary school students, rather than for elementary school students. SEC. 300.185 Computation of excess costs -- consolidated application. The minimum average amount under Sec. 300.183 where two or more local educational agencies submit a consolidated application, is the average of the combined minimum average amounts determined under Sec. 300.184 in those agencies for elementary or secondary school students, as the case may be. (20 U.S.C. 1414(a)(1)) SEC. 300.186 Excess costs -- limitation on use of Part B funds. (a) The excess cost requirement prevents a local educational agency from using funds provided under Part B of the Act to pay for all of the costs directly attributable to the education of a handicapped child, subject to paragraph (b) of this section. (b) The excess cost requirement does not prevent a local educational agency from using Part B funds to pay for all of the costs directly attributable to the education of a handicapped child in any of the age ranges three, four, five, eighteen, nineteen, twenty, or twenty-one, if no local or State funds are available for non-handicapped children in that range. However, the educational agency must comply with the non-supplanting and other requirements of this part in providing the education and services. (20 U.S.C. 1402(20); 1414(a)(1)) SEC. 300.190 Consolidated applications. (a) [Reserved] (b) Required applications. A State educational agency may require local educational agencies to submit a consolidated application for payments under Part B of the Act if the State educational agency determines that an individual application submitted by a local educational agency will be disapproved because: (1) The agency's entitlement is less than the $7,500 minimum required by section 611(c)(4)(A)(i) of the Act (Sec 300.360(a)(1) of Subpart C); or (2) The agency is unable to establish and maintain programs of sufficient size and scope to effectively meet the educational needs of handicapped children. (c) Size and scope of program. The State educational agency shall establish standards and procedures for determinations under paragraph (b)(2) of this section. (20 U.S.C. 1414(c)(1)) [42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980] SEC. 300.191 [Reserved] SEC. 300.192 State regulation of consolidated applications. (a) The State educational agency shall issue regulations with respect to consolidated applications submitted under this part. (b) The State educational agency's regulations must: (1) Be consistent with section 612 (1)-(7) and section 613(a) of the Act, and (2) Provide participating local educational agencies with joint responsibilities for implementing programs receiving payments under this part. (20 U.S.C. 1414(c)(2)(B)) (c) If an intermediate educational unit is required under State law to carry out this part, the joint responsibilities given to local educational agencies under paragraph (b)(2) of the section so not apply to the administration and disbursement of any payments received by the intermediate educational unit. Those administrative responsibilities must be carried out exclusively by the intermediate educational unit. (20 U.S.C. 1414(c)(2)(C)) SEC. 300.193 State educational agency approval; disapproval. (a)-(b) [Reserved] (c) In carrying out its functions under this section, each State educational agency shall consider any decision resulting from hearing under Sections 300.506-300.513 of Subpart E which is adverse to the local educational agency involved in the decision. (20 U.S.C. 1414(b)(3)) [42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980] SEC. 300.194 Withholding. (a) If a State educational agency, after giving reasonable notice and an opportunity for a hearing to a local educational agency in the administration of an application approved by the State educational agency has failed to comply with any requirement in the application, the State educational agency, after giving notice to the local educational agency, shall: (1) Make no further payments to the local educational agency until the State educational agency is satisfied that there is no longer any failure to comply with the requirement; or (2) Consider its decision in its review of any application made by the local educational agency under Sec. 300.180; (3) Or both; (b) Any local educational agency receiving a notice from a State educational agency under paragraph (a) of this section is subject to the public notice provision in Sec. 300.592. (20 U.S.C. 1414(b)(2)) LOCAL EDUCATIONAL AGENCY APPLICATIONS -- CONTENTS SEC. 300.220 Child identification. Each application must include procedures which insure that all children residing within the jurisdiction of the local educational agency who are handicapped, regardless of the severity of their handicap, and who are in need of special education and related services are identified, located, and evaluated, including a practical method of determining which children are currently receiving needed special education and related services and which children are not currently receiving needed special education and related services. (20 U.S.C. 1414(a)(1)(A)) Comment. The local educational agency is responsible for insuring that all handicapped children within its jurisdiction are identified, located, and evaluated, including children in all public and private agencies and institutions within that jurisdiction. Collection and use of data are subject to the confidentiality requirements in sections 300.560-300,576 of Subpart E. SEC. 300.221 Confidentiality of personally identifiable information. Each application must include policies and procedures which insure that the criteria in Sections 300.560-300.574 of Subpart E are met. (20 U.S.C. 1414(a)(1)(B)) SEC. 300.222 Full educational opportunity goal; timetable. Each application must: (a) Include a goal of providing full educational opportunity to all handicapped children, aged birth through 21, and (b) Include a detailed timetable for accomplishing the goal. (20 U.S.C. 1414(a)(1)(C)(D)) SEC. 300.223 Facilities, personnel, and services. Each application must provide a description of the kind and number of facilities, personnel, and services necessary to meet the goal in Sec. 300.222. (20 U.S.C. 1414(a)(1)(E)) SEC. 300.224 Personnel development. Each application must include procedures for the implementation and use of the comprehensive system of personnel development established by the State educational agency under Sec. 300.140. (20 U.S.C. 1414(a)(1)(C)(i)) SEC. 300.225 Priorities. Each application must include priorities which meet the requirements of Sections 300.320-300.324. (20 U.S.C. 1414(a)(1)(C)(ii)) SEC. 300.226 Parent involvement. Each application must include procedures to insure that, in meeting the goal under Sec. 300.222, the local educational agency makes provision for participation of and consultation with parents or guardians of handicapped children. (20 U.S.C. 1414(a)(1)(C)(iii)) SEC. 300.227 Participation in regular education programs. (a) Each application must include procedures to insure that to the maximum extent practicable, and consistent with Section 300.550-300.553 of Subpart E, the local educational agency provides special services to enable handicapped children to participate in regular educational programs. (b) Each application must describe: (1) The types of alternative placements that are available for handicapped children, and (2) The number of handicapped children within each disability category who are served in each type of placement. (20 U.S.C. 1414(a)(1)(C)(iv)) SEC. 300.228 [Reserved] SEC. 300.229 Excess cost. Each application must provide assurance satisfactory to the State educational agency that the local educational agency uses funds provided under Part B of the Act only for costs which exceed the amount computed under Sec. 300.184 and which are directly attributable to the education of handicapped children. (20 U.S.C. 1414(a)(2)(B)) SEC. 300.230 Nonsupplanting. (a) Each application must provide assurance satisfactory to the State educational agency that the local educational agency uses funds provided under Part B of the Act to supplement and, to the extent practicable, increase the level of State and local funds expended for the education of handicapped children, and in no case to supplant those State and local funds. (b) To meet the requirement in paragraph (a) of this section: (1) The total amount or average per capita amount of State and local school funds budgeted by the local educational agency for expenditures in the current fiscal year for the education of handicapped children must be at least equal to the total amount or average per capita amount of State and local school funds actually expended for the education of handicapped children in the most recent preceding fiscal year for which the information is available. Allowance may be made for: (i) Decreases in enrollment of handicapped children; and (ii) Unusually large amounts of funds expended for such long-term purposes as the acquisition of equipment and the construction of school facilities; and (2) The local educational agency must not use Part B funds to displace State or local funds for any particular cost. (20 U.S.C. 1414(a)(2)(B)) Comment. Under statutes such as Title I of the Elementary and Secondary Education Act of 1965, as amended, the requirement is to not supplant funds the "would" have been expended if the Federal funds were not available. The requirement under Part B, however, is to not supplant funds which have been "expended." This use of the past tense suggests that the funds referred to are those which the State and local agency actually spent at some time before the use of the Part B funds. Therefore, in judging compliance with this requirement, the Secretary looks to see if Part B funds are used for any costs which were previously paid for with State or local funds. The nonsupplanting requirement prohibits a local educational agency from supplanting State and local funds with Part B funds on either an aggregate basis or for a given expenditure. This means that if an LEA spent $100,000 for special education in FY 1977, it must budget at least $100,000 in FY 1978, unless one of the conditions in Sec. 300.230(b)(1) applies. Whether a local educational agency supplants with respect to a particular cost would depend on the circumstances of the expenditure. For example, if a teacher's salary has been switched from local funding to Part B funding, this would appear to be supplanting. However, if that teacher was taking over a different position (such as a resource room teacher, for example), it would not be supplanting. Moreover, it might be important to consider whether the particular action of a local educational agency led to an increase in services for handicapped children over that which previously existed. The intent of the requirement is to insure that Part B funds are used to increase State and local efforts and are not used to take their place. Compliance would be judged with this aim in mind. The supplanting requirement is not intended to inhibit better services to handicapped children. SEC. 300.231 Comparable services. (a) Each application must provide assurance satisfactory to the State educational agency that the local educational agency meets the requirements of this section. (b) A local educational agency may not use funds under Part B of this Act to provide services to handicapped children unless the agency uses State and local funds to provide services to those children which, taken as a whole, are at least comparable to services provided to other handicapped children in that local educational agency. (c) Each local educational agency shall maintain records which show that the agency meets the requirement in paragraph (b) of this section. (20 U.S.C. 1414(a)(2)(C)) Comment. Under the "comparability" requirement, if State and local funds are used to provide certain services, those services must be provided with State and local funds to all handicapped children in the local educational agency who need them. Part B funds may then be used to supplement existing services, or to provide additional services to meet special needs. This of course, is subject to the other requirements of the Act, including the priorities under Sections 300.320-300.324. SEC. 300.232-300.234 [Reserved] SEC> 300.235 Procedural safeguards. Each application must provide assurance satisfactory to the State educational agency that the local educational agency has procedural safeguards which meet the requirements of Sections 300.500-300.514 of Subpart E. (20 U.S.C. 1414(a)(7)) SEC. 300.238 Use of Part B funds. Each application must describe how the local educational agency will use the funds under Part B of the Act during the next school year. (20 U.S.C. 1414(a)) SEC. 300.239 [Reserved] SEC. 300.240 Other Requirements. Each local application must include additional procedures and information which the State educational agency may require in order to meet the State annual program plan requirements under Sections 300.120-300.151. (20 U.S.C. 1414(a)(6)) APPLICATION FROM SECRETARY OF INTERIOR SEC. 300.260 Submission of annual application; approval. In order to receive payments under this part, the Secretary of Interior shall submit an annual application which: (a) Meets applicable requirements of section 614(a) of the Act; (b) Includes monitoring procedures which are consistent with Sec. 300.601; and (c) Includes other material as agreed to by the Secretary and the Secretary of Interior. (20 U.S.C. 1411(f)) SEC. 300.261 Public participation. In development of the application for the Department of Interior, the Secretary of Interior shall provide for public participation consistent with Sections 300.280-300.284. (20 U.S.C. 1411(f)) SEC. 300.262 Use of Part B funds. (a) The Department of Interior may use five percent of its payments in any fiscal year, or $200,000, whichever is greater, for administrative costs in carrying out the provisions of this part. (b) The remainder of the payments to the Secretary of the Interior in any fiscal year must be used in accordance with the priorities under Sections 300.320-300.324 of Subpart C. (20 U.S.C. 1411(f)) [42 FR 42476, Aug, 23 1977. Redesignated at 45 FR 77368, Nov. 21, 1980 and amended at 51 FR 19311, May 28, 1986] SEC. 300.263 Applicable regulations. The Secretary of the Interior shall comply with the requirements under Subparts C, E, and F. (20 U.S.C. 1411(f)(2)) PUBLIC PARTICIPATION SEC. 300.280 Public hearings before adopting an annual program plan. (a) Prior to its adoption of an annual program plan, the State educational agency shall: (1) Make the plan available to the general public. (2) Hold public hearings, and (3) Provide an opportunity for comment by the general public on the plan. (20 U.S.C. 1412(7)) SEC. 300.281 Notice. (a) The State educational agency shall provide notice to the general public of the public hearings. (b) The notice must be in sufficient detail to inform the public about: (1) The purpose and scope of the annual program plan and its relation to Part B of the Education of the Handicapped Act, (2) The availability of the annual program plan, (3) The date, time, and location of each public hearing, (4) The procedures for submitting written comments about the plan, and (5) The timetable for developing the final plan and submitting it to the Secretary for approval. (c) The notice must be published or announced: (1) In newspapers or other media, or both, with circulation adequate to notify the general public about the hearings, and (2) Enough in advance of the date of the hearings to afford interested parties throughout the State a reasonable opportunity to participate. (20 U.S.C. 1412(7)) SEC. 300.282 Opportunity to participate; comment period. (a) The State educational agency shall conduct the public hearings at times and places that afford interested parties throughout the State a reasonable opportunity to participate. (b) The plan must be available for comment for a period of at least 30 days following the date of the notice under Sec. 300.281. (20 U.S.C. 1412(7)) SEC. 300.283 Review of public comments before adopting plan. Before adopting its annual program plan, the State educational agency shall: (a) Review and consider all public comments, and (b) Make any necessary modifications in the plan. (20 U.S.C. 1412(7)) SEC. 300.284 Publication and availability of approved plan. After the Secretary approves an annual program plan, the State educational agency shall give notice in newspapers or other media, or both, that the plan is approved. The notice must name places throughout the State where the plan is available for access by any interested person. (20 U.S.C. 1412(7)) Subpart C -- Services FREE APPROPRIATE PUBLIC EDUCATION SEC. 300.300 Timeliness for free appropriate public education. (a) General. Each State shall insure that free appropriate public education that is available to all handicapped children aged three through eighteen with the State not later than September 1, 1978, and to all handicapped children aged three through twenty-one within the State not later than September 1, 1980. (b) Age ranges 3-5 and 18-21. This paragraph provides rules for applying the requirement in paragraph (a) of this section to handicapped children aged three, four, five, eighteen, nineteen, twenty, and twenty-one: (1) If State law or a court order requires the State to provide education for handicapped children in any disability category in any of these age groups, the State must make a free appropriate public education available to all handicapped children of the same age who have disability. (2) If a public agency provides education to non-handicapped children in any of these age groups, it must make a free appropriate public education available to at least a proportionate number of handicapped children of the same age. (3) If a public agency provides education to 50 percent or more of its handicapped children in any disability category in any of these age groups, it must make a free appropriate public education available to all of its handicapped children of the same age who have that disability. (4) If a public agency provides education to a handicapped child in any of these age groups, it must make a free appropriate public education available to that child and provide that child and his or her parents all of the rights under Part B of the Act and this part. (5) A State is not required to make a free appropriate public education available to a handicapped child in one of these age groups if: (i) State law expressly prohibits, or does not authorize, the expenditure of public funds to provide education to nonhandicapped children in that age group; or (ii) The requirement is inconsistent with a court order which governs the provision of free public education to handicapped children in that State. (20 U.S.C. 1412(2)(B); Sen. Rept. No. 94-168 p. 19 (1975)) Comment. 1. The requirement to make free appropriate public education available applies to all handicapped children within the State who are in the age ranges required under Sec. 300.300 and who need special education and related services. This includes handicapped children already in school and children with less severe handicaps. who are not covered under the priorities under Sec. 300.321. 2. In order to be in compliance with Sec. 300.300, each State must insure that the requirement to identify, locate, and evaluate all handicapped children is fully implemented by public agencies throughout the State. This means that before September 1, 1978, every child who has been referred or is on a waiting list for evaluation (including children in school as well as those not receiving an education) must be evaluated in accordance with Sections 300.530-300.533 of Subpart E. If, as a result of the evaluation, it is determined that a child needs special education and related services, an individualized education program must be developed for the child by September 1, 1978, and all other applicable requirements of this part must be met. 3. The requirement to identify, locate, and evaluate handicapped children (commonly referred to as the "child find system") was enacted on August 21, 1974, under Pub. L. 93-380. While each State needed time to establish and implement its child find system, the four year period between August 21, 1974, and September 1, 1978, is considered to be sufficient to insure that the system is fully operational and effective on a Statewide basis. Under the statute, the age range for the child find requirement (0-21) is greater than the mandated age range for providing free appropriate public education (FAPE). One reason for the broader age requirement under "child find" is to enable States to be aware of and plan for younger children who will require special education and related services. It also ties in with the full educational opportunity goal requirement, which has the same age range as child find. Moreover, while a State is not required to provide "FAPE" to handicapped children below the age ranges mandated under Sec. 300.300, the State may, at its discretion, extend services to those children, subject to the requirements on priorities under Sections 300.320-300.324. SEC. 300.301 Free appropriate public education -- methods and payments. (a) Each State may use whatever State, local, Federal, and private sources of support are available in the State to meet the requirements of this part. For example, when it is necessary to place a handicapped child in a residential facility, a State could use joint agreements between the agencies involved for sharing the cost of that placement. (b) Nothing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped child. (20 U.S.C. 1401 (18); 1412(2)(B)) SEC. 300.302 Residential placement. If placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child. (20 U.S.C. 1412(2)(B); 1413(a)(4)(B)) SEC. 300.303 Proper functioning of hearing aids. Each public agency shall insure that the hearing aids worn by deaf and hard of hearing children in school are functioning properly. (20 U.S.C. 1412(2)(B)) Comment. The report of the House of Representatives on the 1978 appropriation bill includes the following statement regarding hearing aids: In its report on the 1976 appropriation bill the Committee expressed concern about the condition of hearing aids worn by children in public schools. A study done at the Committee's direction by the Bureau of Education for the Handicapped reveals that up to one-third of the hearing aids are malfunctioning. Obviously, the Committee expects the Office of Education will ensure that hearing impaired school children are receiving adequate professional assessment, follow-up and services. (House Report No. 95-381, p. 67 (1977)) SEC. 300.304 Full educational opportunity goal. (a) Each State educational agency shall insure that each public agency establishes and implements a goal of providing full educational opportunity to all handicapped children in the area served by the public agency. (b) Subject to the priority requirements under Sections 300.320- 300.324, a State or local educational agency may use Part B funds to provide facilities, personnel, and services necessary to meet the full educational opportunity goal. (20 U.S.C. 1412(2)(A); 1414(a)(1)(C)) Comment. In meeting the full educational opportunity goal, the Congress also encouraged local educational agencies to include artistic and cultural activities in programs supported under this part, subject to the priority requirements under Sections 300.320-300.324. This point is addressed in the following statements from the Senate Report on Pub. L. 94-142. The use of the arts as a teaching tool for the handicapped has long been recognized as a viable, effective way not only of teaching special skills, but also of reaching youngsters who had otherwise been unteachable. The Committee envisions that programs under this bill could well include an arts component and, indeed, urges that local educational agencies include the arts in programs for the handicapped funded under this Act. Such a program could cover both appreciation of the arts by the handicapped youngsters, and the utilization of the arts as a teaching tool per se. Museum settings have often been another effective tool for teaching of handicapped children. For example, the Brooklyn Museum has been a leader in developing exhibits utilizing the heightened tactile sensory skill of the blind, therefore, in light of the national policy concerning the use of museums in federally supported education programs enunciated in the Education Amendments of 1974, the Committee also urges local educational agencies to include museums in programs for the handicapped funded under this Act. (Senate Report No. 94-168, p. 13 (1975)) SEC. 300.305 Program options. Each public agency shall take steps to insure that its handicapped children have available to them the variety of educational programs and services available to non-handicapped children in the area served by the agency, including art, music, industrial arts, consumer and homemaking education, and vocational education. (20 U.S.C. 1412(2)(A); 1414(a)(1)(C)) Comment. The above list of program options is not exhaustive, and could include any program or activity in which nonhandicapped students participate. Moreover, vocational education programs must be specially designed if necessary to enable a handicapped student to benefits fully from those programs; and the set-aside funds under the Vocational Education Act of 1963, as amended by Pub. L. 94-482, may be used for this purpose. Part B funds may also be used, subject to the priority requirements under Section 300.320-300.324. SEC. 300.306 Nonacademic services. (a) Each public agency shall take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped children 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 which provide assistance to handicapped persons, and employment of students, including both employment by the public agency and assistance in making outside employment available. (20. U.S.C. 1412(2)(A); 1414(a)(1)(C)) SEC. 300.307 Physical education. (a) General. Physical education services, specially designed if necessary, must be made available to every handicapped child receiving a free appropriate public education. (b) Regular physical education. Each handicapped child must be afforded the opportunity to participate in the regular physical education program available to non-handicapped 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 individualized education program. (c) Special physical education. If specially designed physical education is prescribed in a child's individualized education program, the public agency responsible for the education of that child shall provide the services directly, or make arrangements for it to be provided through other public or private programs. (d) Education in separate facilities. The public agency responsible for the education of a handicapped child who is enrolled in a separate facility shall insure that the child receives appropriate physical education services in compliance with paragraphs (a) and (c) of this section. (20 U.S.C. 1401(16); 1412(5)(B); 1414(a)(6)) Comment. The Report of the House of Representatives on Pub. L. 94-142 includes the following statement regarding physical education: Special education as set forth in the Committee bill includes instruction in physical education which is provided as a matter of course to all non- handicapped children enrolled in public elementary and secondary schools. The Committee is concerned that although these services are available to and required of all children in our school systems, they are often viewed as a luxury for handicapped children. * * * * * * The Committee expects the Commissioner of Education to take whatever action is necessary to assure that physical education services are available to all handicapped children, and has specifically included physical education within the definition of special education to make clear that the Committee expects such services, specially designed where necessary, to be provided as an integral part of the educational program of every handicapped child. (House Report No. 94-332, p.9 (1975)) PRIORITIES IN THE USE OF PART B FUNDS SEC. 300.320 Definitions of "first priority children" and "second priority children." For the purpose of Sections 300.321-300.324, the term: (a) "First priority children" means handicapped children who: (1) Are in an age group for which the State must make available free appropriate public education under Sec. 300.300; and (2) Are not receiving any education. (b) "Second priority children" means handicapped children, within each disability, with the most severe handicaps who are receiving an inadequate education. (20 U.S.C. 1412(3)) Comment. After September 1, 1978, there should be no second priority children, since States must insure, as a condition of receiving Part B funds for fiscal year 1979, that all handicapped children will have available a free appropriate public education by that date. NOTE: The term "free appropriate public education," as defined in Sec. 300.4 of Subpart A, means "special education and related services which * * * are provided in conformity with an individualized education program * * *." New "First priority children" will continue to be found by the State after September 1, 1978 through on-going efforts to identify, locate, and evaluate all handicapped children. SEC. 300.321 Priorities. (a) Each State and local educational agency shall use funds provided under Part B or the Act in the following order of priorities: (1) To provide free appropriate public education to first priority children, including the identification, location, and evaluation of first priority children. (2) To provide free appropriate public education to second priority children, including the identification, location, and evaluation of second priority children. (3) To meet the other requirements in this part. (b) The requirements of paragraph (a) of this section do not apply to funds which the State uses for administration under Sec. 300.620. (20 U.S.C. 1411(b)(1)(B), (b)(2)(B), (c)(1)(B), (c)(2)(A)(i)) (c) State and local educational agencies may not use funds under Part B of the Act for preservice training. (20 U.S.C. 1413(a)(3); Senate Report No. 94-168, p. 34 (1975)) Comment. Note that a State educational agency as well as local educational agencies must use Part B funds (except the portion used for State administration) for the priorities. A State may have to set aside a portion of its Part B allotment to be able to serve newly identified first priority children. After September 1, 1978, Part B funds may be used: (1) To continue supporting child identification, location, and evaluation activities; (2) To provide free appropriate public education to newly identified first priority children; (3) To meet the full educational opportunities goal required under Sec. 300.304, including employing additional personnel and providing inservice training, in order to increase the level, intensity and quality of services provided to individual handicapped children; and (4) To meet the other requirements of Part B. SEC. 300.322 First priority children -- school year 1977 - 1978. (a) In school year 1977 - 1978, if a major component of a first priority child's proposed educational program is not available (for example, there is no qualified teacher), the public agency responsible for the child's education shall: (1) Provide an interim program of services for the child; and (2) Develop an individualized education program for full implementation no later than September 1, 1978. (b) A local educational agency may use Part B funds for training or other support services in school year 1977 - 1978 only if all of its first priority children have available to them at least an interim program of services. (c) A State educational agency may use Part B funds for training of other support services in school year 1977 - 1978 only if all first priority children in the State have available to them at least an interim program of services. (20 U.S.C. 1411 (b), (c)) Comment. This provision is intended to make clear that a State or local educational agency may not delay placing a previously unserved (first priority) child until it has, for example, implemented an inservice training program. The child must be placed. After the child is in at least an interim program, the State or local educational agency may use Part B funds for training or other support services needed to provide that child with a free appropriate public education. SEC. 300.323 Services to other children. If a State or a local educational agency is providing free appropriate public education to all of its first priority children, that State or agency may use funds provided under Part B of the Act: (a) To provide free appropriate public education to handicapped children who are not receiving any education and who are in the age groups not covered under Sec. 300.300 in that State; or (b) To provide free appropriate public education to second priority children; or (c) Both. (20 U.S.C. 1411 (b)(1)(B), (b)(2)(B), (c)(2)(A)(ii)) SEC. 300.324 Application of local educational agency to use funds for the second priority. A local educational agency may use funds provided under Part B of the Act for second priority children, if it provides assurance satisfactory to the State educational agency in its application (or an amendment to its application): (a) That all first priority children have a free appropriate public education available to them; (b) That the local educational agency has a system for the identification, location, and evaluation of handicapped children, as described in its application; and (c) That whenever a first priority child is identified, located, and evaluated, the local educational agency makes available a free appropriate public education to the child. (20 U.S.C. 1411 (b)(1)(B), (c)(1)(B); 1414(a)(1)(C)(ii)) INDIVIDUALIZED EDUCATION PROGRAMS SEC. 300.340 Definition. As used in this part, the term "individualized education program: means a written statement for a handicapped child that is developed and implemented in accordance with Sections 300.341- 300.349. (20 U.S.C. 1401(19)) SEC. 300.341 State educational agency responsibility. (a) Public agencies. The State educational agency shall insure that each public agency develops and implements an individualized education program for each of its handicapped children. (b) Private schools and facilities. The State educational agency shall insure that an individualized education program is developed and implemented for each handicapped child who: (1) Is placed in or referred to a private school or facility by a public agency; or (2) Is enrolled in a parochial or other private school and receives special education or related services from a public agency. (20 U.S.C. 1412(4), (6); 1413(a)(4))) Comment. This section applies to all public agencies, including other State agencies (e.g., departments of mental health and welfare), which provide special education to a handicapped child either directly, by contract or through other arrangements. Thus, if a State welfare agency contracts with a private school or facility to provide special education to a handicapped child, that agency would be responsible for insuring that an individualized education program is developed for the child. SEC. 300.342 When individualized education programs must be in effect. (a) On October 1, 1977, and at the beginning of each school year thereafter, each public agency shall have in effect an individualized education program for every handicapped child who is receiving special education from that agency. (b) An individualized education program must: (1) Be in effect before special education and related services are provided to a child; and (2) Be implemented as soon as possible following the meetings under Sec. 300.343. (20 U.S.C. 1412 (2)(B), (4), (6); 1414(a)(5); Pub. L. 94-142, Sec. 8(c) (1975)) Comment. Under paragraph (b)(2), it is expected that a handicapped child's individualized education program (IEP) will be implemented immediately following the meeting under Sec. 300.343. An exception to this would be (1) when the meetings occur during the summer or a vacation period, or (2) where there are circumstances which require a short delay (e.g., working out transportation arrangements). However, there can be no undue delay in providing special education and related services to the child. SEC. 300.343 Meetings. (a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising a handicapped child's individualized education program. (b) Handicapped children currently served. If the public agency has determined that a handicapped child will receive special education during school year 1977-1978, a meeting must be held early enough to insure that an individualized education program is developed by October 1, 1977. (c) Other handicapped children. For a handicapped child who is not included under paragraph (b) of this action, a meeting must be held within thirty calendar days of a determination that the child needs special education and related services. (d) Review. Each public agency shall initiate and conduct meetings to periodically review each child's individualized education program and if appropriate revise its provisions. A meeting must be held for this purpose at least once a year. (20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5)) Comment. The dates on which agencies must have individualized education programs (IEPs) in effect are specified in Sec. 300.342 (October 1, 1977, and the beginning of each school year thereafter). However, except for new handicapped children (i.e., those evaluated and determined to need special education after October 1, 1977), the timing of meetings to develop, review, and revise IEPs is left to the discretion of each agency. In order to have IEPs in effect by the dates in Sec. 300.342, agencies could hold meetings at the end of the school year or during the summer preceding those dates. In meeting the October 1, 1977 timeline, meetings could be conducted up through the October 1 date. Thereafter, meetings may be held any time throughout the year, as long as IEPs are in effect at the beginning of each school year. The statute requires agencies to hold a meeting at least once a year in order to review, and if appropriate revise, each child's IEP. The timing of those meetings could be on the anniversary date of the last IEP meeting on the child, but this is left to the discretion of the agency. SEC. 300.344 Participants in meetings. (a) General. The public agency shall insure that each meeting includes the following participants: (1) A representative of the public agency, other than the child's teacher, who is qualified to provide, or supervise the provision of, special education. (2) The child's teacher. (3) One or both of the child's parents, subject to Sec. 300.345. (4) The child, where appropriate. (5) Other individuals at the discretion of the parent or agency. (b) Evaluation personnel. For a handicapped child who has been evaluated for the first time, the public shall insure: (1) That a member of the evaluation team participates in the meeting; or (2) That the representative of the public agency, the child's teacher, or some other person is present at the meeting, who is knowledgeable about the evaluation procedures used with the child and is familiar with the results of the evaluation. (20 U.S.C. 1401(19); 1412 (2)(B), (4), (6); 1414(a)(5)) Comment. 1. In deciding which teacher will participate in meetings on a child's individualized education program, the agency may wish to consider the following possibilities: (a) For a handicapped child who is receiving special education, the "teacher" could be the child's special education teacher. If the child's handicap is a speech impairment, the "teacher" could be the speech-language pathologist. (b) For a handicapped child who is being considered for placement in special education, the "teacher" could be the child's regular teacher, or a teacher qualified to provide education in the type of program in which the child may be placed, or both. (c) If the child is not in school or has more than one teacher, the agency may designate which teacher will participate in the meeting. 2. Either the teacher or the agency representative should be qualified in the area of the child's suspected disability. 3. For a child whose primary handicap is a speech impairment, the evaluation personnel participating under paragraph (b)(1) of this section would normally be the speech-language pathologist. SEC. 300.345 Parent participation. (a) Each public agency shall take steps to insure that one or both of the parents of the handicapped child are present at each meeting or are afforded the opportunity to participate, including: (1) Notifying parents of the meeting early enough to insure that they will have an opportunity to attend; and (2) Scheduling the meeting at a mutuall