Revised Administrative Rules for Special Education
(Includes revisions effective June 6, 2002, and selected federal regulations)
Office of Special Education and Early Intervention Services
November 2002

DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND EARLY INTERVENTION SERVICES
This document contains the Revised Administrative Rules for Special Education 2002, selected
sections from the federal regulations implementing the Individuals with Disabilities Education
Act, 34 CFR Part 300, and the Family Education Rights and Privacy Act Regulations, 34 CFR
Part 99.
The Revised Administrative Rules for Special Education were filed with the Secretary of State
on May 29, 2002. These rules take effect 7 days after filing with the Secretary of State on
June 6, 2002.
(By authority conferred on the state board of education by sections 1701 and 1703 of 1976 PA
451, MCL 380.1701 and 380.1703)
R 340.1701, R 340.1701a, R 340.1701b, R 340.1702, R 340.1705, R 340.1706, R 340.1707,
R 340.1708, R 340.1709, R 340.1710, R 340.1711, R 340.1713, R 340.1714, R 340.1715,
R 340.1721, R 340.1721a, R 340.1721b, R 340.1721c, R 340.1721d, R 340.1721e,
R 340.1722, R 340.1722a, R 340.1722e, R 340.1723c, R 340.1724, R 340.1724a, R 340.1724d,
R 340.1725e, R 340.1732, R 340.1733, R 340.1734, R 340.1738, R 340.1739, R 340.1740,
R 340.1741, R 340.1742, R 340.1743, R 340.1744, R 340.1745, R 340.1746, R 340.1747,
R 340.1748, R 340.1749, R 340.1749a, R 340.1749b, R 340.1749c, R 340.1750, R 340.1751,
R 340.1754, R 340.1755, R 340.1756, R 340.1757, R 340.1758, R 340.1771, R 340.1772,
R 340.1781, R 340.1782, R 340.1783, R 340.1786, R 340.1787, R 340.1788, R 340.1790,
R 340.1792, R 340.1793, R 340.1795, R 340.1796, R 340.1797, R 340.1798, R 340.1799,
R 340.1799a, R 340.1799b, R 340.1799c, R 340.1801, R 340.1802, R 340.1803, R 340.1808,
R 340.1809, R 340.1810, R 340.1811, R 340.1812, R 340.1831, R 340.1832, R 340.1833,
R 340.1835, R 340.1836, R 340.1837, R 340.1838, R 340.1839, R 340.1851, R 340.1852,
R 340.1853, and R 340.1861 of the Michigan Administrative Code are amended; R 340.1703,
R 340.1704, R 340.1722c, R 340.1722d, R 340.1722f, R 340.1723, R 340.1723a, R 340.1723b,
R 340.1724b, R 340.1725, R 340.1725a, R 340.1725b, R 340.1725c, R 340.1725d, R 340.1736,
R 340.1737, R 340.1753, R 340.1773, R 340.1784, R 340.1785, R 340.1791, R 340.1794,
R 340.1799d, R 340.1805, R 340.1806, R 340.1834, R 340.1862, R 340.1863, R 340.1864,
R 340.1865, R 340.1866, R 340.1867, R 340.1868, R 340.1869, R 340.1870, R 340.1871,
R 340.1872, and R 340.1873 of the Code are rescinded; and R 340.1701c, R 340.1709a,
R 340.1716, R 340.1724c, R 340.1725f, R 340.1774, R 340.1783a, R 340.1793a, R 340.1799e,
and R 340.1799f are added to the Code as follows:
i
REVISED ADMINISTRATIVE RULES FOR
SPECIAL EDUCATION
Page No.
Part 1. General Provisions
R 340.1701 Assurance of compliance. 1
R 340.1701a Definitions; A to D. 1
R 340.1701b Definitions; I to P. 1
R 340.1701c Definitions; R to Y. 2
R 340.1702 Student with a disability defined. 3
R 340.1705 Cognitive impairment; determination. 3
R 340.1706 Emotional impairment; determination; evaluation report. 3
R 340.1707 Hearing impairment explained; determination. 4
R 340.1708 Visual impairment explained; determination. 4
R 340.1709 Physical impairment defined; determination. 4
R 340.1709a Other health impairment defined; determination. 5
R 340.1710 Speech and language impairment defined; determination. 5
R 340.1711 Early childhood developmental delay defined; determination. 6
R 340.1713 Specific learning disability defined; determination. 6
R 340.1714 Severe multiple impairment; determination. 7
R 340.1715 Autism defined; determination. 8
R 340.1716 Traumatic brain injury defined; determination. 8
Federal Definitions
§ 300.5 Assistive technology device. 9
§ 300.6 Assistive technology service. 9
§ 300.9 Day; business day; school day. 9
§ 300.13 Free appropriate public education. 9
§ 300.16 Individualized education program team. 9
§ 300.19 Native language. 10
§ 300.24 Related services. 10
§ 300.26 Special education. 12
§ 300.28 Supplementary aids and services. 13
§ 300.29 Transition services. 13
§ 300.309 Assistive technology. 13
§ 300.309 Extended school year services. 13
§ 300.340 Definitions related to IEPs. 14
§ 300.500 General responsibility of public agencies; definitions. 14
§ 300.560 Definitions. 14
Part 2. Evaluation, Eligibility, Student Assignment, and Due Process Procedures
R 340.1721 Parental consent for initial evaluation; contents of notice;
refusal to consent or respond. 15
§ 300.504 Procedural safeguards notice. 15
§ 300.505 Parental consent. 15
R 340.1721a Evaluation procedure. 16
§ 300.531 Initial evaluation. 16
§ 300.532 Evaluation procedures. 16
ii
§ 300.533 Determination of needed evaluation data. 17
§ 300.534 Determination of eligibility. 18
§ 300.535 Procedures for determining eligibility and placement. 18
§ 300.536 Reevaluation. 19
R 340.1721b Individualized education program team participants. 19
§ 300.344 IEP team. 19
§ 300.345 Parent participation. 20
R 340.1721c Scheduling individualized education program team meeting;
requesting parent participation. 21
§ 300.341 Responsibility of SEA and other public agencies for IEPs. 21
§ 300.342 When IEPs must be in effect. 21
§ 300.343 IEP meetings. 22
R 340.1721d Responsibilities of the individualized education program
team. 22
R 340.1721e Individualized education program team meeting;
determination of eligibility for special education programs
and services; individualized education program. 22
§ 300.346 Development, review, and revision of IEP. 23
§ 300.347 Content of IEP. 24
§ 300.348 Agency responsibilities for transition services. 25
R 340.1722 Placement in special education programs and services. 25
§ 300.550 General LRE requirements. 25
§ 300.551 Continuum of alternative placements. 26
§ 300.552 Placements. 26
§ 300.553 Nonacademic settings. 26
R 340.1722a Implementation of the individualized education program. 26
§ 300.503 Prior notice by the public agency; content of notice. 27
§ 300.505 Parental consent. 27
R 340.1722e Previous enrollment in special education. 28
R 340.1723c Right to independent educational evaluation. 28
§ 300.502 Independent educational evaluation. 29
R 340.1724 Impartial due process hearing. 30
§ 300.507 Impartial due process hearing; parent notice. 30
R 340.1724a Impartial hearing officer; appointment. 31
§ 300.508 Impartial hearing officer. 31
§ 300.509 Hearing rights. 31
§ 300.510 Finality of decision; appeal; impartial review. 32
§ 300.511 Timelines and convenience of hearings and reviews. 33
§ 300.512 Civil action. 33
§ 300.513 Attorneys’ fees. 33
§ 300.514 Child’s status during proceedings. 34
R 340.1724c Expedited hearings. 34
§ 300.528 Expedited due process hearings. 35
R 340.1724d Mediation. 35
§ 300.506 Mediation. 36
R 340.1725e Hearing officer or state reviewing official; duties and authority. 36
R 340.1725f Surrogate parent. 37
§ 300.515 Surrogate parents. 37
Part 3. Administration of Programs and Services
R 340.1732 Designation of residency. 39
R 340.1733 Program and service requirements; effective dates. 40
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R 340.1734 Deviations from rules. 41
R 340.1738 Programs for students with severe cognitive impairment. 42
R 340.1739 Programs for students with moderate cognitive impairment. 42
R 340.1740 Programs for students with mild cognitive impairment. 42
R 340.1741 Programs for students with emotional impairment. 42
R 340.1742 Programs for students with hearing impairment. 42
R 340.1743 Programs for students with visual impairment. 43
R 340.1744 Programs for students with physical impairment or other
health impairment. 43
R 340.1745 Services for students with speech and language impairment. 43
R 340.1746 Homebound and hospitalized services. 43
R 340.1747 Programs for students with specific learning disabilities. 44
R 340.1748 Programs for students with severe multiple impairments. 44
R 340.1749 Teacher consultant; caseload; responsibilities. 44
R 340.1749a Elementary level resource program. 45
R 340.1749b Secondary level resource program. 45
R 340.1749c Departmentalization of special education programs. 45
R 340.1750 Director of special education. 46
R 340.1751 Supervisor of special education. 46
R 340.1754 Early childhood special education programs. 46
R 340.1755 Early childhood special education services. 46
R 340.1756 Programs for students with severe language impairment. 46
R 340.1757 Other related educational services for students placed in
juvenile detention facilities. 47
R 340.1758 Programs for students with autism. 47
Part 4. Qualifications of Directors and Supervisors
R 340.1771 Director of special education; education and experience
requirements. 49
R 340.1772 Supervisor of special education; education and experience
requirements. 50
R 340.1774 Out-of-state applicants for supervisor or director; temporary
approval. 50
Part 5. Qualifications of Teachers and Other Personnel
R 340.1781 Teachers of students with disabilities; endorsement
requirements. 51
R 340.1782 Endorsed teachers of students with disabilities; additional
requirements. 52
R 340.1783 Temporarily approved teachers of students with disabilities. 53
R 340.1783a Early childhood special education teacher, full year permit. 53
R 340.1786 Teachers of students with cognitive impairment; special
requirements. 53
R 340.1787 Teachers of students with emotional impairment; special
requirements. 54
R 340.1788 Teachers of students with learning disabilities; special
requirements. 54
R 340.1790 Teacher consultants for students with disabilities. 55
R 340.1792 Licensure, certification, or approval of professional personnel. 55
R 340.1793 Paraprofessional personnel; qualifications. 55
R 340.1793a Interpreters for the deaf. 56
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R 340.1795 Early childhood special education teachers; special
requirements. 56
R 340.1796 Teachers of students with speech and language impairment;
special requirements. 56
R 340.1797 Teachers of physical education for students with disabilities;
special requirements. 57
R 340.1798 Teachers of physical education for students with disabilities;
role. 57
R 340.1799 Teachers of students with autism; special requirements. 57
R 340.1799a Teachers of students with physical impairment and students
with other health impairment; special requirements. 58
R 340.1799b Teachers of students with visual impairment; special
requirements. 59
R 340.1799c Teachers of students with hearing impairment; special
requirements. 59
R 340.1799e Psychologist defined. 60
R 340.1799f School social worker defined. 60
§ 300.135 Comprehensive system of personnel development. 60
§ 300.136 Personnel standards. 61
Part 6. Financing
R 340.1801 Source of funds. 63
R 340.1802 Use of funds. 63
§ 300.302 Residential placement. 63
R 340.1803 Building or purchasing facilities. 63
R 340.1808 Reporting costs. 63
R 340.1809 State aid to operating school districts. 63
R 340.1810 Reimbursement of special education transportation. 64
R 340.1811 Distribution of intermediate millage to the intermediate
school district, its constituent local school districts, and
public school academies. 64
R 340.1812 Intermediate school district’s use of special education millage. 64
Part 7. Development and Submission of Intermediate School Districts’ Plans and
Monitoring
R 340.1831 Plan and modification submission. 65
R 340.1832 Content areas. 65
R 340.1833 Cooperative development and review. 66
R 340.1835 Plan signatures. 66
R 340.1836 Objections to plan; procedures. 66
R 340.1837 Approval of intermediate school district plans. 67
R 340.1838 Parent advisory committee. 67
R 340.1839 Monitoring and program evaluation. 68
Part 8. Complaints
R 340.1851 Intermediate school district’s responsibility for investigation
of complaints; report. 69
R 340.1852 Department responsibilities for processing complaints and
conducting state investigations. 69
R 340.1853 General responsibilities of all agencies for processing
complaints and investigations. 70
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Part 9. Records and Confidentiality
R 340.1861 Records; maintenance; content; transfer of records; release of
records. 72
§ 300.561 Notice to parents. 72
§ 300.562 Access rights. 72
§ 300.563 Record of access. 73
§ 300.564 Records on more than one child. 73
§ 300.565 List of types and locations of information. 73
§ 300.566 Fees. 73
§ 300.567 Amendment of records at parent’s request. 73
§ 300.568 Opportunity for a hearing. 73
§ 300.569 Result of hearing. 73
§ 300.570 Hearing procedures. 74
§ 300.571 Consent. 74
§ 300.572 Safeguards. 74
§ 300.573 Destruction of information. 74
Additional Federal Requirements
§ 300.305 Program options. 75
§ 300.306 Nonacademic services. 75
§ 300.307 Physical education. 75
§ 300.349 Private school placements by public agencies. 75
§ 300.350 IEP—accountability. 76
§ 300.517 Transfer of parental rights at age of majority. 76
State Advisory Panel
§ 300.650 Establishment of advisory panels. 77
§ 300.651 Membership. 77
§ 300.652 Advisory panel functions. 77
§ 300.653 Advisory panel procedures. 78
Discipline Procedures
§ 300.519 Change of placement for disciplinary removals. 79
§ 300.520 Authority of school personnel. 79
§ 300.522 Determination of setting. 80
§ 300.523 Manifestation determination review. 80
§ 300.524 Determination that behavior was not manifestation of disability. 81
§ 300.525 Parent appeal. 81
§ 300.526 Placement during appeals. 81
§ 300.527 Protections for children not yet eligible for special education
and related services. 82
§ 300.529 Referral to and action by law enforcement and judicial
authorities. 83
APPENDIX A TO PART 300 — NOTICE OF INTERPRETATION
I. Involvement and Progress of Each Child With a Disability in
the General Curriculum 84
II. Involvement of Parents and Students 84
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III. Preparing Students With Disabilities for Employment and
Other Post-School Experiences 84
IV. Other Questions Regarding Implementation of Idea [sic] 84
Individualized Education Programs (IEPS) and Other Selected Implementation
Issues 86
Introduction 86
I. Involvement and Progress of Each Child With a Disability
in the General Curriculum 86
Present Levels of Educational Performance 87
Special Education and Related Services and
Supplementary Aids and Services 87
Extent to Which Child Will Participate With Nondisabled
Children 88
Participation in State or District-Wide Assessments of
Student Achievement 89
Regular Education Teacher Participation in the
Development, Review, and Revision of IEPs 89
II. Involvement of Parents and Students 90
III. Preparing Students With Disabilities for Employment and
Other Post-School Experiences 94
IV. Other Questions Regarding the Development and Content
of IEPS 97
FAMILY EDUCATION RIGHTS & PRIVACY ACT (FERPA) REGULATIONS
Subpart A - General 107
§ 99.1 To which educational agencies or institutions do these
regulations apply? 107
§ 99.2 What is the purpose of these regulations? 107
§ 99.3 What definitions apply to these regulations? 108
§ 99.4 What are the rights of parents? 110
§ 99.5 What are the rights of students? 110
§ 99.7 What must an educational agency or institution include in
its annual notification? 110
§ 99.8 What provisions apply to records of a law enforcement unit? 111
Subpart B - What Are the Rights of Inspection and Review of Education
Records? 112
§ 99.10 What rights exist for a parent or eligible student to inspect
and review education records? 112
§ 99.11 May an educational agency or institution charge a fee for
copies of education records? 112
§ 99.12 What limitations exist on the right to inspect and review
records? 113
Subpart C - What Are the Procedures for Amending Education Records? 113
§ 99.20 How can a parent or eligible student request amendment of
the student’s education records? 113
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§ 99.21 Under what conditions does a parent or eligible student have
the right to a hearing? 114
§ 99.22 What minimum requirements exist for the conduct of a
hearing? 114
Subpart D - May an Educational Agency or Institution Disclose Personally
Identifiable Information From Education Records? 114
§ 99.30 Under what conditions is prior consent required to disclose
information? 114
§ 99.31 Under what conditions is prior consent not required to
disclose information? 115
§ 99.32 What recordkeeping requirements exist concerning requests
and disclosures? 117
§ 99.33 What limitations apply to the redisclosure of information? 118
§ 99.34 What conditions apply to disclosure of information to other
educational agencies or institutions? 119
§ 99.35 What conditions apply to disclosure of information for
Federal or State program purposes? 119
§ 99.36 What conditions apply to disclosure of information in health
and safety emergencies? 119
§ 99.37 What conditions apply to disclosing directory information? 120
§ 99.38 What conditions apply to disclosure of information as
permitted by State statute adopted after November 19, 1974
concerning the juvenile justice system? 120
§ 99.39 What definitions apply to the nonconsensual disclosure of
records by postsecondary educational institutions in
connection with disciplinary proceedings concerning crimes
of violence or nonforcible sex offenses? 120
Subpart E - What are the Enforcement Procedures? 121
§ 99.60 What functions has the Secretary delegated to the Office and
to the Office of Administrative Law Judges? 121
§ 99.61 What responsibility does an educational agency or
institution have concerning conflict with State or local laws? 121
§ 99.62 What information must an educational agency or
institution submit to the Office? 121
§ 99.63 Where are complaints filed? 122
§ 99.64 What is the complaint procedure? 122
§ 99.65 What is the content of the notice of complaint issued by the
Office? 122
§ 99.66 What are the responsibilities of the Office in the
enforcement process? 122
§ 99.67 How does the Secretary enforce decisions? 122
Appendix A to Part 99 — Crimes of Violence Definitions 123
Arson 123
Assault Offenses 123
Burglary 123
Criminal Homicide - Manslaughter by Negligence 123
Criminal Homicide - Murder and Nonnegligent Manslaughter 123
viii
Destruction/Damage/Vandalism of Property 123
Kidnapping/Abduction 123
Robbery 124
Sex Offenses, Forcible 124
Nonforcible Sex Offenses 124
1
PART 1.
GENERAL PROVISIONS
R 340.1701 Assurance of compliance.
Rule 1. All public agencies in the state, as those agencies are defined at 34 C.F.R.
§300.22 of the regulations implementing the individuals with disabilities education act, 20
U.S.C. chapter 33, §1400 et seq., shall comply with these rules; all provisions of the state’s
application for federal funds under part B of the individuals with disabilities education act,
20 U.S.C. chapter 33, §1400 et seq.; the requirements of part B of the individuals with
disabilities education act; and the regulations implementing the individuals with disabilities
education act, 34 C.F.R. part 300, which are adopted by reference in these rules. Copies are
available, at cost, from the Government Printing Office, Superintendent of Documents, P.O.
Box 37195-7954, Pittsburgh, PA, 15250, or from the Center for Educational Networking,
Eaton Intermediate School District, 1790 East Packard Highway, Charlotte, MI, 48813.
R 340.1701a Definitions; A to D.
Rule 1a. As used in these rules:
(a) “Adaptive behavior” means a student’s ability to perform the social roles appropriate
for a person of his or her age and gender in a manner that meets the expectations of home,
culture, school, neighborhood, and other relevant groups in which he or she participates.
(b) “Agency” means a public or private entity or organization, including the local school
district, public school academy, intermediate school district, the department, and any other
political subdivision of the state that is responsible for providing education or services to
students with disabilities.
(c) “Complaint” means a written and signed allegation that includes the facts on which
the allegation is based, by an individual or an organization, that there is a violation of any of
the following:
(i) Any current provision of these rules.
(ii) 1976 PA 451, MCL 380.1 et seq., as it pertains to special education programs
and services.
(iii) The individuals with disabilities education act of 1997, 20 U.S.C., chapter 33,
§1400 et seq., and the regulations implementing the act, 34 C.F.R. part 300.
(iv) An intermediate school district plan.
(v) An individualized education program team report, hearing officer decision, or
court decision regarding special education programs or services.
(vi) The state application for federal funds under the individuals with disabilities
education act.
(d) “Department” means the state department of education.
(e) “Departmentalize” means a delivery system in which 2 or more special education
teachers teach groups of students with disabilities by instructional content areas.
R 340.1701b Definitions; I to P.
Rule 1b. As used in these rules:
(a) “Instructional services” means services provided by teaching personnel that are
specially designed to meet the unique needs of a student with a disability. These may be
provided by any of the following:
(i) An early childhood special education teacher under R 340.1755.
(ii) A teacher consultant under R 340.1749.
(iii) A teacher of the speech and language impaired under R 340.1745.
(iv) A teacher providing instruction to students with disabilities who are homebound
or hospitalized.
2
(v) A teacher providing instruction to students who are placed in juvenile detention
facilities under R 340.1757.
(b) “Multidisciplinary evaluation team” means a minimum of 2 persons who are
responsible for evaluating a student suspected of having a disability. The team shall include
at least 1 special education teacher or other specialist who has knowledge of the suspected
disability.
(c) “Normal course of study” means a general or a special education curriculum leading
to a high school diploma.
(d) “Occupational therapy” means therapy provided by a therapist who has been
registered by the American occupational therapy association or an occupational therapy
assistant who has been certified by the American occupational therapy association and who
provides therapy under the supervision of a registered occupational therapist.
(e) “Parent” means any of the following:
(i) A natural or adoptive parent of a student or youth with a disability.
(ii) A guardian, but not the state, if the student or youth with a disability is a ward
of the state.
(iii) A person acting in the place of a parent, such as a grandparent or stepparent
with whom the student or youth with a disability lives or a person who is legally responsible
for the welfare of a student or youth with a disability.
(iv) A surrogate parent who has been appointed in accordance with state board of
education policy.
(v) A foster parent if both of the following provisions are satisfied:
(A) The natural parent’s authority to make educational decisions on behalf of
the student or youth with a disability has been extinguished under state law.
(B) The foster parent satisfies all of the following provisions:
(1) Has an ongoing, long-term parental relationship with the student or
youth with a disability.
(2) Is willing to make the educational decisions required of parents.
(3) Has no interest that would conflict with the interests of the student or
youth with a disability.
(vi) The affected student or youth with a disability when the student or youth with a
disability reaches 18 years of age, if a legal guardian has not been appointed by appropriate
court proceedings.
(f) “Parent advisory committee” means a committee of parents of students with
disabilities of a particular intermediate school district appointed by the board of that district
under R 340.1838.
(g) “Physical therapy” means therapy prescribed by a physician and provided by a
therapist who is licensed by the state of Michigan under 1978 PA 368, MCL 333.1101 et seq.
or a physical therapy assistant who provides therapy under the supervision of a licensed
physical therapist.
R 340.1701c Definitions; R to Y.
Rule 1c. As used in these rules:
(a) “Related services” means services defined at 34 C.F.R. §300.24 and ancillary
services as defined in 1976 PA 451, MCL 380.1 et seq., which is available for public review
at the department and at intermediate school districts.
(b) “Services” means instructional or related services as defined in these rules.
(c) “Special education” means specially designed instruction, at no cost to the parents,
to meet the unique educational needs of the student with a disability and to develop the
student’s maximum potential. Special education includes instructional services defined in
R 340.1701b(a) and related services.
(d) “Youth placed in a juvenile detention facility” means a student who is placed by the
court in a detention facility for juvenile delinquents and who is not attending a regular school
program due to court order.
3
R 340.1702 Student with a disability defined.
Rule 2. “Student with a disability” means a person who is determined by an
individualized education program team or a hearing officer to have 1 or more of the
impairments specified in this part that necessitates special education or related services, or
both, who is not more than 25 years of age as of September 1 of the school year of
enrollment, who has not completed a normal course of study, and who has not graduated
from high school. A student who reaches the age of 26 years after September 1 is a “student
with a disability” and entitled to continue a special education program or service until the
end of that school year.
R 340.1705 Cognitive impairment; determination.
Rule 5. (1) Cognitive impairment shall be manifested during the developmental period
and be determined through the demonstration of all of the following behavioral
characteristics:
(a) Development at a rate at or below approximately 2 standard deviations below
the mean as determined through intellectual assessment.
(b) Scores approximately within the lowest 6 percentiles on a standardized test in
reading and arithmetic. This requirement will not apply if the student is not of an age, grade,
or mental age appropriate for formal or standardized achievement tests.
(c) Lack of development primarily in the cognitive domain.
(d) Impairment of adaptive behavior.
(e) Adversely affects a student’s educational performance.
(2) A determination of impairment shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include a psychologist.
R 340.1706 Emotional impairment; determination; evaluation report.
Rule 6. (1) Emotional impairment shall be determined through manifestation of
behavioral problems primarily in the affective domain, over an extended period of time,
which adversely affect the student’s education to the extent that the student cannot profit
from learning experiences without special education support. The problems result in
behaviors manifested by 1 or more of the following characteristics:
(a) Inability to build or maintain satisfactory interpersonal relationships within the
school environment.
(b) Inappropriate types of behavior or feelings under normal circumstances.
(c) General pervasive mood of unhappiness or depression.
(d) Tendency to develop physical symptoms or fears associated with personal or
school problems.
(2) Emotional impairment also includes students who, in addition to the characteristics
specified in subrule (1) of this rule, exhibit maladaptive behaviors related to schizophrenia or
similar disorders. The term “emotional impairment” does not include persons who are
socially maladjusted, unless it is determined that the persons have an emotional impairment.
(3) Emotional impairment does not include students whose behaviors are primarily the
result of intellectual, sensory, or health factors.
(4) When evaluating a student suspected of having an emotional impairment, the
multidisciplinary evaluation team report shall include documentation of all of the following:
(a) The student’s performance in the educational setting and in other settings, such
as adaptive behavior within the broader community.
(b) The systematic observation of the behaviors of primary concern which interfere
with educational and social needs.
(c) The intervention strategies used to improve the behaviors and the length of time
the strategies were utilized.
(d) Relevant medical information, if any.
4
(5) A determination of impairment shall be based on data provided by a
multidisciplinary evaluation team, which shall include a comprehensive evaluation by both
of the following:
(a) A psychologist or psychiatrist.
(b) A school social worker.
R 340.1707 Hearing impairment explained; determination.
Rule 7. (1) The term “hearing impairment” is a generic term which includes both
students who are deaf and those who are hard of hearing and refers to students with any type
or degree of hearing loss that interferes with development or adversely affects educational
performance. “Deafness” means a hearing impairment that is so severe that the student is
impaired in processing linguistic information through hearing, with or without amplification.
The term “hard of hearing” refers to students with hearing impairment who have permanent
or fluctuating hearing loss which is less severe than the hearing loss of students who are deaf
and which generally permits the use of the auditory channel as the primary means of
developing speech and language skills.
(2) A determination of impairment shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include an audiologist and an otolaryngologist
or otologist.
R 340.1708 Visual impairment explained; determination.
Rule 8. (1) A visual impairment shall be determined through the manifestation of both of
the following:
(a) A visual impairment which, even with correction, interferes with development
or which adversely affects educational performance. Visual impairment includes both partial
sight and blindness.
(b) One or more of the following:
(i) A central visual acuity for near or far point vision of 20/70 or less in the
better eye after routine refractive correction.
(ii) A peripheral field of vision restricted to not more than 20 degrees.
(iii) A diagnosed progressively deteriorating eye condition.
(2) A determination of impairment shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include an ophthalmologist or optometrist.
(3) If a student cannot be tested accurately for acuity, then functional visual assessments
conducted by a teacher certified in visual impairment may be used in addition to the medical
evaluation for determination of impairment.
(4) For students with visual impairment who have a visual acuity of 20/200 or less after
routine refractive correction, or who have a peripheral field of vision restricted to not more
than 20 degrees, an evaluation by an orientation and mobility specialist shall be conducted.
The orientation and mobility specialist shall also include in the report a set of recommended
procedures to be used by a mobility specialist or a teacher of students with visual impairment
in conducting orientation and mobility training activities.
R 340.1709 Physical impairment defined; determination.
Rule 9. (1) “Physical impairment” means severe orthopedic impairment that adversely
affects a student’s educational performance.
(2) A determination of disability shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include assessment data from 1 of the
following persons:
(a) An orthopedic surgeon.
(b) An internist.
(c) A neurologist.
(d) A pediatrician.
5
(e) A family physician or any other approved physician as defined in 1978 PA 368,
MCL 333.1101 et seq.
R 340.1709a Other health impairment defined; determination.
Rule 9a. (1) “Other health impairment” means having limited strength, vitality, or
alertness, including a heightened alertness to environmental stimuli, which results in limited
alertness with respect to the educational environment and to which both of the following
provisions apply:
(a) Is due to chronic or acute health problems such as any of the following:
(i) Asthma.
(ii) Attention deficit disorder.
(iii) Attention deficit hyperactivity disorder.
(iv) Diabetes.
(v) Epilepsy.
(vi) A heart condition.
(vii) Hemophilia.
(viii) Lead poisoning.
(ix) Leukemia.
(x) Nephritis.
(xi) Rheumatic fever.
(xii) Sickle cell anemia.
(b) The impairment adversely affects a student’s educational performance.
(2) A determination of disability shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include 1 of the following persons:
(a) An orthopedic surgeon.
(b) An internist.
(c) A neurologist.
(d) A pediatrician.
(e) A family physician or any other approved physician as defined in 1978 PA 368,
MCL 333.1101 et seq.
R 340.1710 Speech and language impairment defined; determination.
Rule 10. (1) A “speech and language impairment” means a communication disorder that
adversely affects educational performance, such as a language impairment, articulation
impairment, fluency impairment, or voice impairment.
(2) A communication disorder shall be determined through the manifestation of 1 or
more of the following speech and language impairments that adversely affects educational
performance:
(a) A language impairment which interferes with the student’s ability to understand
and use language effectively and which includes 1 or more of the following:
(i) Phonology.
(ii) Morphology.
(iii) Syntax.
(iv) Semantics.
(v) Pragmatics.
(b) Articulation impairment, including omissions, substitutions, or distortions of
sound, persisting beyond the age at which maturation alone might be expected to correct the
deviation.
(c) Fluency impairment, including an abnormal rate of speaking, speech
interruptions, and repetition of sounds, words, phrases, or sentences, that interferes with
effective communication.
(d) Voice impairment, including inappropriate pitch, loudness, or voice quality.
(3) Any impairment under subrule (2) (a) of this rule shall be evidenced by both of the
following:
6
(a) A spontaneous language sample demonstrating inadequate language
functioning.
(b) Test results on not less than 2 standardized assessment instruments or 2 subtests
designed to determine language functioning which indicate inappropriate language
functioning for the student’s age.
(4) A student who has a communication disorder, but whose primary disability is other
than speech and language may be eligible for speech and language services under
R 340.1745(a).
(5) A determination of impairment shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include a teacher of students with speech and
language impairment under R 340.1796 or a speech and language pathologist qualified under
R 340.1792.
R 340.1711 Early childhood developmental delay defined; determination.
Rule 11. (1) “Early childhood developmental delay” means a child through 7 years of
age whose primary delay cannot be differentiated through existing criteria within R 340.1705
to R 340.1710 or R 340.1713 to R 340.1716 and who manifests a delay in 1 or more areas of
development equal to or greater than 1/2 of the expected development. This definition does
not preclude identification of a child through existing criteria within R 340.1705 to
R 340.1710 or R 340.1713 to R 340.1716.
(2) A determination of early childhood developmental delay shall be based upon a
comprehensive evaluation by a multidisciplinary evaluation team.
R 340.1713 Specific learning disability defined; determination.
Rule 13. (1) “Specific learning disability” means a disorder in 1 or more of the basic
psychological processes involved in understanding or in using language, spoken or written,
that 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 impairments,
brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does
not include children who have learning problems that are primarily the result of a visual,
hearing, or motor impairment, of a cognitive impairment, of an emotional impairment, of
autism, or of environmental, cultural, or economic disadvantage.
(2) The individualized education program team may determine that a child has a specific
learning disability if the child does not achieve commensurate with his or her age and ability
levels in 1 or more of the areas listed in this subrule, when provided with learning
experiences appropriate for the child’s age and ability levels, and if the multidisciplinary
evaluation team finds that a child has a severe discrepancy between achievement and
intellectual ability in 1 or more of the following areas:
(a) Oral expression.
(b) Listening comprehension.
(c) Written expression.
(d) Basic reading skill.
(e) Reading comprehension.
(f) Mathematics calculation.
(g) Mathematics reasoning.
(3) The individualized education program team shall not identify a child as having a
specific learning disability if the severe discrepancy between ability and achievement is
primarily the result of any of the following:
(a) A visual, hearing, or motor impairment.
(b) Cognitive impairment.
(c) Emotional impairment.
(d) Autism.
(e) Environmental, cultural, or economic disadvantage.
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(4) At least 1 individualized education program team member other than the student’s
general education teacher shall observe the student’s academic performance in the general
education classroom setting. For a child who is less than school age or who is out of school,
an individualized education program team member shall observe the child in an environment
appropriate for a child of that age.
(5) For a student suspected of having a specific learning disability, the documentation of
the individualized education program team’s determination of eligibility shall include a
statement concerning all of the following:
(a) Whether the student has a specific learning disability.
(b) The basis for making the determination.
(c) The relevant behavior noted during the observation of the student.
(d) The relationship of that behavior to the student’s academic functioning.
(e) The educationally relevant medical findings, if any.
(f) Whether there is a severe discrepancy between achievement and ability that is
not correctable without special education and related services.
(g) The determination of the team concerning the effects of environmental, cultural,
or economic disadvantage.
(6) Each individualized education program team member shall certify, in writing,
whether the report reflects his or her conclusion. If it does not reflect his or her conclusion,
the team member shall submit a separate statement presenting his or her conclusions.
(7) A determination of learning disability shall be based upon a comprehensive
evaluation by a multidisciplinary evaluation team, which shall include at least both of the
following:
(a) The student’s general education teacher or, if the student does not have a
general education teacher, a general education teacher qualified to teach a student of his or
her age or, for a child of less than school age, an individual qualified by the state educational
agency to teach a child of his or her age.
(b) At least 1 person qualified to conduct individual diagnostic examinations of
children, such as a school psychologist, an authorized provider of speech and language under
R 340.1745(d), or a teacher consultant.
R 340.1714 Severe multiple impairment; determination.
Rule 14. (1) Students with severe multiple impairments shall be determined through the
manifestation of either of the following:
(a) Development at a rate of 2 to 3 standard deviations below the mean and 2 or
more of the following conditions:
(i) A hearing impairment so severe that the auditory channel is not the
primary means of developing speech and language skills.
(ii) A visual impairment so severe that the visual channel is not sufficient to
guide independent mobility.
(iii) A physical impairment so severe that activities of daily living cannot be
achieved without assistance.
(iv) A health impairment so severe that the student is medically at risk.
(b) Development at a rate of 3 or more standard deviations below the mean or
students for whom evaluation instruments do not provide a valid measure of cognitive ability
and 1 or more of the following conditions:
(i) A hearing impairment so severe that the auditory channel is not the
primary means of developing speech and language skills.
(ii) A visual impairment so severe that the visual channel is not sufficient to
guide independent mobility.
(iii) A physical impairment so severe that activities of daily living cannot be
achieved without assistance.
(iv) A health impairment so severe that the student is medically at risk.
8
(2) A determination of impairment shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include a psychologist and, depending upon
the disabilities in the physical domain, the multidisciplinary evaluation team participants
required in R 340.1707, R 340.1708, or R 340.1709, R 340.1709a, or R 340.1716.
R 340.1715 Autism defined; determination.
Rule 15. (1) “Autism” means a lifelong developmental disability that is typically
manifested before 30 months of age. “Autism” is characterized by disturbances in the rates
and sequences of cognitive, affective, psychomotor, language, and speech development.
(2) The manifestation of the characteristics specified in subrule (1) of this rule and all of
the following characteristics shall determine if a student has autism:
(a) Disturbance in the capacity to relate appropriately to people, events, and
objects.
(b) Absence, disorder, or delay of language, speech, or meaningful communication.
(c) Unusual or inconsistent response to sensory stimuli in 1 or more of the
following:
(i) Sight.
(ii) Hearing.
(iii) Touch.
(iv) Pain.
(v) Balance.
(vi) Smell.
(vii) Taste.
(viii) The way a student holds his or her body.
(d) Insistence on sameness as shown by stereotyped play patterns, repetitive
movements, abnormal preoccupation, or resistance to change.
(3) To be eligible under this rule, there shall be an absence of the characteristics
associated with schizophrenia, such as delusions, hallucinations, loosening of associations,
and incoherence.
(4) A determination of impairment shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team. The team shall include, at a minimum, a psychologist or
psychiatrist, an authorized provider of speech and language services under R 340.1745(d),
and a school social worker.
R 340.1716. Traumatic brain injury defined; determination.
Rule 16. (1) “Traumatic brain injury” means an acquired injury to the brain which is
caused by an external physical force and which results in total or partial functional disability
or psychosocial impairment, or both, that adversely affects a student’s educational
performance. The term applies to open or closed head injuries resulting in impairment in 1 or
more of the following areas:
(a) Cognition.
(b) Language.
(c) Memory.
(d) Attention.
(e) Reasoning.
(f) Behavior.
(g) Physical functions.
(h) Information processing.
(i) Speech.
(2) The term does not apply to brain injuries that are congenital or degenerative or to
brain injuries induced by birth trauma.
(3) A determination of disability shall be based upon a comprehensive evaluation by a
multidisciplinary evaluation team, which shall include an assessment from a family physician
or any other approved physician as defined in 1978 PA 368, MCL 333.1101 et seq.
9
FEDERAL DEFINITIONS
§ 300.5 Assistive technology device.
As used in this part, Assistive technology device means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified, or customized, that
is used to increase, maintain, or improve the functional capabilities of a child with a
disability.
§ 300.6 Assistive technology service.
As used in this part, Assistive technology service means any service that directly assists a
child with a disability in the selection, acquisition, or use of an assistive technology device.
The term includes—
(a) The evaluation of the needs of a child with a disability, including a functional
evaluation of the child in the child’s customary environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology
devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing,
or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or services with assistive
technology devices, such as those associated with existing education and rehabilitation plans
and programs;
(e) Training or technical assistance for a child with a disability or, if appropriate, that
child’s family; and
(f) Training or technical assistance for professionals (including individuals providing
education or rehabilitation services), employers, or other individuals who provide services to,
employ, or are otherwise substantially involved in the major life functions of that child.
§ 300.9 Day; business day; school day.
As used in this part, the term—
(a) Day means calendar day unless otherwise indicated as business day or school day;
(b) Business day means Monday through Friday, except for Federal and State holidays
(unless holidays are specifically included in the designation of business day, as in
§ 300.403(d)(1)(ii)); and
(c)(1) School day means any day, including a partial day, that children are in attendance
at school for instructional purposes.
(2) The term school day has the same meaning for all children in school, including
children with and without disabilities.
§ 300.13 Free appropriate public education.
As used in this part, the term free appropriate public education or FAPE means special
education and related services that—
(a) Are provided at public expense, under public supervision and direction, and without
charge;
(b) Meet the standards of the SEA, including the requirements of this part;
(c) Include preschool, elementary school, or secondary school education in the State; and
(d) Are provided in conformity with an individualized education program (IEP) that
meets the requirements of §§ 300.340–300.350.
§ 300.16 Individualized education program team.
As used in this part, the term individualized education program team or IEP team means
a group of individuals described in § 300.344 that is responsible for developing, reviewing,
or revising an IEP for a child with a disability.
10
§ 300.19 Native language.
(a) As used in this part, the term native language, if used with reference to an individual
of limited English proficiency, means the following:
(1) The language normally used by that individual, or, in the case of a child, the language
normally used by the parents of the child, except as provided in paragraph (a)(2) of this
section.
(2) In all direct contact with a child (including evaluation of the child), the language
normally used by the child in the home or learning environment.
(b) For an individual with deafness or blindness, or for an individual with no written
language, the mode of communication is that normally used by the individual (such as sign
language, braille, or oral communication).
§ 300.24 Related services.
(a) General. As used in this part, the term related services means transportation and such
developmental, corrective, and other supportive services as are required to assist a child with
a disability to benefit from special education, and includes speech-language pathology and
audiology services, psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, early identification and assessment of disabilities in
children, counseling services, including rehabilitation counseling, orientation and mobility
services, and medical services for diagnostic or evaluation purposes. The term also includes
school health services, social work services in schools, and parent counseling and training.
(b) Individual terms defined. 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 children, parents, and teachers regarding hearing loss;
and
(vi) Determination of children’s needs 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 and assessment of disabilities in children 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 disability that results in the child’s need for special education and
related services.
(5) Occupational therapy—
(i) Means services provided by a qualified occupational therapist; and
(ii) Includes—
(A) Improving, developing or restoring functions impaired or lost through illness, injury,
or deprivation;
(B) Improving ability to perform tasks for independent functioning if functions are
impaired or lost; and
(C) Preventing, through early intervention, initial or further impairment or loss of
function.
(6) Orientation and mobility services—
11
(i) Means services provided to blind or visually impaired students by qualified personnel
to enable those students to attain systematic orientation to and safe movement within their
environments in school, home, and community; and
(ii) Includes teaching students the following, as appropriate:
(A) Spatial and environmental concepts and use of information received by the senses
(such as sound, temperature and vibrations) to establish, maintain, or regain orientation and
line of travel (e.g., using sound at a traffic light to cross the street);
(B) To use the long cane to supplement visual travel skills or as a tool for safely
negotiating the environment for students with no available travel vision;
(C) To understand and use remaining vision and distance low vision aids; and
(D) Other concepts, techniques, and tools.
(7) Parent counseling and training means—
(i) Assisting parents in understanding the special needs of their child;
(ii) Providing parents with information about child development; and
(iii) Helping parents to acquire the necessary skills that will allow them to support the
implementation of their child’s IEP or IFSP.
(8) Physical therapy means services provided by a qualified physical therapist.
(9) Psychological services includes—
(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;
(v) Planning and managing a program of psychological services, including psychological
counseling for children and parents; and
(vi) Assisting in developing positive behavioral intervention strategies.
(10) Recreation includes—
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(11) Rehabilitation counseling services means services provided by qualified personnel
in individual or group sessions that focus specifically on career development, employment
preparation, achieving independence, and integration in the workplace and community of a
student with a disability. The term also includes vocational rehabilitation services provided
to a student with disabilities by vocational rehabilitation programs funded under the
Rehabilitation Act of 1973, as amended.
(12) School health services means services provided by a qualified school nurse or other
qualified person.
(13) Social work services in schools includes—
(i) Preparing a social or developmental history on a child with a disability;
(ii) Group and individual counseling with the child and family;
(iii) Working in partnership with parents and others on those problems in a child’s living
situation (home, school, and community) that affect the child’s adjustment in school;
(iv) Mobilizing school and community resources to enable the child to learn as
effectively as possible in his or her educational program; and
(v) Assisting in developing positive behavioral intervention strategies.
(14) Speech-language pathology services includes—
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language impairments;
(iii) Referral for medical or other professional attention necessary for the habilitation of
speech or language impairments;
12
(iv) Provision of speech and language services for the habilitation or prevention of
communicative impairments; and
(v) Counseling and guidance of parents, children, and teachers regarding speech and
language impairments.
(15) Transportation includes—
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if
required to provide special transportation for a child with a disability.
§ 300.26 Special education.
(a) General. (1) As used in this part, the term special education means specially designed
instruction, at no cost to the parents, to meet the unique needs of a child with a disability,
including—
(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and
in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the requirements of paragraph
(a)(1) of this section:
(i) Speech-language pathology services, or any other related service, if the service is
considered special education rather than a related service under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual terms defined. 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 not preclude incidental fees that are normally charged to nondisabled students or
their parents as a part of the regular education program.
(2) Physical education—
(i) 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); and
(ii) Includes special physical education, adapted physical education, movement
education, and motor development.
(3) Specially-designed instruction means adapting, as appropriate to the needs of an
eligible child under this part, the content, methodology, or delivery of instruction—
(i) To address the unique needs of the child that result from the child’s disability; and
(ii) To ensure access of the child to the general curriculum, so that he or she can meet the
educational standards within the jurisdiction of the public agency that apply to all children.
(4) Travel training means providing instruction, as appropriate, to children with
significant cognitive disabilities, and any other children with disabilities who require this
instruction, to enable them to—
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from place to place within
that environment (e.g., in school, in the home, at work, and in the community).
(5) Vocational education means organized educational programs that 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.
13
§ 300.28 Supplementary aids and services.
As used in this part, the term supplementary aids and services means, aids, services, and
other supports that are provided in regular education classes or other education-related
settings to enable children with disabilities to be educated with nondisabled children to the
maximum extent appropriate in accordance with §§ 300.550–300.556.
§ 300.29 Transition services.
(a) As used in this part, transition services means a coordinated set of activities for a
student with a disability that—
(1) Is designed within an outcome-oriented process, that promotes movement from
school to post-school activities, including postsecondary education, vocational training,
integrated employment (including supported employment), continuing and adult education,
adult services, independent living, or community participation;
(2) Is based on the individual student’s needs, taking into account the student’s
preferences and interests; and
(3) Includes—
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult living objectives; and
(v) If appropriate, acquisition of daily living skills and functional vocational evaluation.
(b) Transition services for students with disabilities may be special education, if provided
as specially designed instruction, or related services, if required to assist a student with a
disability to benefit from special education.
§ 300.308 Assistive technology.
(a) Each public agency shall ensure that assistive technology devices or assistive
technology services, or both, as those terms are defined in §§ 300.5–300.6, are made
available to a child with a disability if required as a part of the child’s—
(1) Special education under § 300.26;
(2) Related services under § 300.24; or
(3) Supplementary aids and services under §§ 300.28 and 300.550(b)(2).
(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a
child’s home or in other settings is required if the child’s IEP team determines that the child
needs access to those devices in order to receive FAPE.
§ 300.309 Extended school year services.
(a) General. (1) Each public agency shall ensure that extended school year services are
available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a child’s IEP team
determines, on an individual basis, in accordance with §§ 300.340–300.350, that the services
are necessary for the provision of FAPE to the child.
(3) In implementing the requirements of this section, a public agency may not—
(i) Limit extended school year services to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or duration of those services.
(b) Definition. As used in this section, the term extended school year services means
special education and related services that—
(1) Are provided to a child with a disability—
(i) Beyond the normal school year the public agency;
(ii) In accordance with the child’s IEP; and
(iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.
14
§ 300.340 Definitions related to IEPs.
(a) Individualized education program. As used in this part, the term individualized
education program or IEP means a written statement for a child with a disability that is
developed, reviewed, and revised in a meeting in accordance with §§ 300.341–300.350.
(b) Participating agency. As used in § 300.348, participating agency means a State or
local agency, other than the public agency responsible for a student’s education, that is
financially and legally responsible for providing transition services to the student.
§ 300.500 General responsibility of public agencies; definitions.
(a) Responsibility of SEA and other public agencies. Each SEA shall ensure that each
public agency establishes, maintains, and implements procedural safeguards that meet the
requirements of §§ 300.500–300.529.
(b) Definitions of ‘‘consent,’’ ‘‘evaluation,’’ and ‘‘personally identifiable.’’ As used in
this part —
(1) Consent means that —
(i) The parent has been fully informed of all information relevant to the activity for which
consent is sought, in his or her native language, or other mode of communication;
(ii) The parent understands and agrees in writing to the carrying out of the activity for
which his or her consent is sought, and the consent describes that activity and lists the
records (if any) that will be released and to whom; and
(iii)(A) The parent understands that the granting of consent is voluntary on the part of the
parent and may be revoked at anytime.
(B) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate
an action that has occurred after the consent was given and before the consent was revoked).
(2) Evaluation means procedures used in accordance with §§ 300.530–300.536 to
determine whether a child has a disability and the nature and extent of the special education
and related services that the child needs; and
(3) Personally identifiable means that information includes—
(i) The name of the child, the child’s parent, or other family member;
(ii) The address of the child;
(iii) A personal identifier, such as the child’s social security number or student number;
or
(iv) A list of personal characteristics or other information that would make possible to
identify the child with reasonable certainty.
§ 300.560 Definitions.
As used in §§ 300.560–300.577—
(a) Destruction means physical destruction or removal of personal identifiers from
information so that the information is no longer personally identifiable.
(b) Education records means the type of records covered under the definition of
‘‘education records’’ in 34 CFR part 99 (the regulations implementing the Family
Educational Rights and Privacy Act of 1974).
(c) Participating agency means any agency or institution that collects, maintains, or uses
personally identifiable information, or from which information is obtained, under Part B of
the Act.
15
PART 2.
EVALUATION, ELIGIBILITY, STUDENT ASSIGNMENT,
AND DUE PROCESS PROCEDURES
R 340.1721 Parental consent for initial evaluation; contents of notice; refusal to consent
or respond.
Rule 21. (1) Within 10 calendar days of receipt of a referral of a student suspected of
having a disability, and before any formal evaluation designed to determine eligibility for
special education programs and services, the public agency shall notify the parent and shall
request written consent to evaluate. The written notice shall contain both of the following:
(a) The reason or reasons an evaluation is sought and the nature of the evaluation.
(b) A description of the types of special education programs and services currently
available within the intermediate school district.
§ 300.504 Procedural safeguards notice.
(a) General. A copy of the procedural safeguards available to the parents of a child with a
disability must be given to the parents, at a minimum—
(1) Upon initial referral for evaluation;
(2) Upon each notification of an IEP meeting;
(3) Upon reevaluation of the child; and
(4) Upon receipt of a request for due process under § 300.507.
(b) Contents. The procedural safeguards notice must include a full explanation of all of
the procedural safeguards available under §§ 300.403, 300.500–300.529, and 300.560-
300.577, and the State complaint procedures available under §§ 300.660–300.662 relating
to—
(1) Independent educational evaluation;
(2) Prior written notice;
(3) Parental consent;
(4) Access to educational records;
(5) Opportunity to present complaints to initiate due process hearings;
(6) The child’s placement during pendency of due process proceedings;
(7) Procedures for students who are subject to placement in an interim alternative
educational setting;
(8) Requirements for unilateral placement by parents of children in private schools at
public expense;
(9) Mediation;
(10) Due process hearings, including requirements for disclosure of evaluation results
and recommendations;
(11) State-level appeals (if applicable in that State);
(12) Civil actions;
(13) Attorneys’ fees; and
(14) The State complaint procedures under §§ 300.660–300.662, including a description
of how to file a complaint and the timelines under those procedures.
(c) Notice in understandable language. The notice required under paragraph (a) of this
section must meet the requirements of § 300.503(c).
§ 300.505 Parental consent.
(a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this section, informed parent
consent must be obtained before—
(i) Conducting an initial evaluation or reevaluation; and
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(ii) Initial provision of special education and related services to a child with a disability.
(2) Consent for initial evaluation may not be construed as consent for initial placement
described in paragraph (a)(1)(ii) of this section.
(3) Parental consent is not required before—
(i) Reviewing existing data as part of an evaluation or a reevaluation; or
(ii) Administering a test or other evaluation that is administered to all children unless,
before administration of that test or evaluation, consent is required of parents of all children.
(b) Refusal. If the parents of a child with a disability refuse consent for initial evaluation
or a reevaluation, the agency may continue to pursue those evaluations by using the due
process procedures under §§ 300.507–300.509, or the mediation procedures under § 300.506
if appropriate, except to the extent inconsistent with State law relating to parental consent.
(c) Failure to respond to request for reevaluation. (1) Informed parental consent need not
be obtained for reevaluation if the public agency can demonstrate that it has taken reasonable
measures to obtain that consent, and the child’s parent has failed to respond.
(2) To meet the reasonable measures requirement in paragraph (c)(1) of this section, the
public agency must use procedures consistent with those in 300.345(d).
(d) Additional State consent requirements. In addition to the parental consent
requirements described in paragraph (a) of this section, a State may require parental consent
for other services and activities under this part if it ensures that each public agency in the
State establishes and implements effective procedures to ensure that a parent’s refusal to
consent does not result in a failure to provide the child with FAPE.
(e) Limitation. A public agency may not use a parent’s refusal to consent to one service
or activity under paragraphs (a) and (d) of this section to deny the parent or child any other
service, benefit, or activity of the public agency, except as required by this part.
R 340.l721a Evaluation procedure.
Rule 21a. (1) Each student suspected of having a disability shall be evaluated by a
multidisciplinary evaluation team as defined in R 340.1701b(b). If an initial evaluation
review is conducted by the individualized education program team, then the multidisciplinary
evaluation team shall complete the evaluation as determined by the individualized education
program team in addition to requirements as defined in R 340.1705 to R 340.1716 as
applicable to the suspected impairment.
(2) The multidisciplinary evaluation team shall do both of the following:
(a) Complete a diagnostic evaluation.
(b) Make a recommendation of eligibility and prepare a written report to be
presented to the individualized education program team by the appointed multidisciplinary
evaluation team member. The report shall include information needed to determine a
student’s present level of educational performance and educational needs of the student.
Information presented to the individualized education program team shall be drawn from a
variety of sources, including parent input.
(3) Special education personnel who are authorized to conduct evaluations of students
suspected of having a disability may provide prereferral consultation to general education
personnel in accordance with procedures established by the department.
§ 300.531 Initial evaluation.
Each public agency shall conduct a full and individual initial evaluation, in accordance
with §§ 300.532 and 300.533, before the initial provision of special education and related
services to a child with a disability under Part B of the Act.
§ 300.532 Evaluation procedures.
Each public agency shall ensure, at a minimum, that the following requirements are met:
(a)(1) Tests and other evaluation materials used to assess a child under Part B of the
Act—
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(i) Are selected and administered so as not to be discriminatory on a racial or cultural
basis; and
(ii) Are provided and administered in the child’s native language or other mode of
communication, unless it is clearly not feasible to do so; and
(2) Materials and procedures used to assess a child with limited English proficiency are
selected and administered to ensure that they measure the extent to which the child has a
disability and needs special education, rather than measuring the child’s English language
skills.
(b) A variety of assessment tools and strategies are used to gather relevant functional and
developmental information about the child, including information provided by the parent,
and information related to enabling the child to be involved in and progress in the general
curriculum (or for a preschool child, to participate in appropriate activities), that may assist
in determining—
(1) Whether the child is a child with a disability under § 300.7; and
(2) The content of the child’s IEP.
(c)(1) Any standardized tests that are given to a child—
(i) Have been validated for the specific purpose for which they are used; and
(ii) Are administered by trained and knowledgeable personnel in accordance with any
instructions provided by the producer of the tests.
(2) If an assessment is not conducted under standard conditions, a description of the
extent to which it varied from standard conditions (e.g., the qualifications of the person
administering the test, or the method of test administration) must be included in the
evaluation report.
(d) Tests and other evaluation materials include those tailored to assess specific areas of
educational need and not merely those that are designed to provide a single general
intelligence quotient.
(e) Tests are selected and administered so as best to ensure that if a test is administered to
a child with impaired sensory, manual, or speaking skills, the test results accurately reflect
the child’s aptitude or achievement level or whatever other factors the test purports to
measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills
(unless those skills are the factors that the test purports to measure).
(f) No single procedure is used as the sole criterion for determining whether a child is a
child with a disability and for determining an appropriate educational program for the child.
(g) The child is assessed in all areas related to the suspected disability, including, if
appropriate, health, vision, hearing, social and emotional status, general intelligence,
academic performance, communicative status, and motor abilities.
(h) In evaluating each child with a disability under §§ 300.531–300.536, the evaluation is
sufficiently comprehensive to identify all of the child’s special education and related services
needs, whether or not commonly linked to the disability category in which the child has been
classified.
(i) The public agency uses technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to physical or developmental
factors.
(j) The public agency uses assessment tools and strategies that provide relevant
information that directly assists persons in determining the educational needs of the child.
§ 300.533 Determination of needed evaluation data.
(a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and
as part of any reevaluation under Part B of the Act, a group that includes the individuals
described in § 300.344, and other qualified professionals, as appropriate, shall—
(1) Review existing evaluation data on the child, including—
(i) Evaluations and information provided by the parents of the child;
(ii) Current classroom-based assessments and observations; and
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(iii) Observations by teachers and related services providers; and
(2) On the basis of that review, and input from the child’s parents, identify what
additional data, if any, are needed to determine—
(i) Whether the child has a particular category of disability, as described in § 300.7, or, in
case of a reevaluation of a child, whether the child continues to have such a disability;
(ii) The present levels of performance and educational needs of the child;
(iii) Whether the child needs special education and related services, or in the case of a
reevaluation of a child, whether the child continues to need special education and related
services; and
(iv) Whether any additions or modifications to the special education and related services
are needed to enable the child to meet the measurable annual goals set out in the IEP of the
child and to participate, as appropriate, in the general curriculum.
(b) Conduct of review. The group described in paragraph (a) of this section may conduct
its review without a meeting.
(c) Need for additional data. The public agency shall administer tests and other
evaluation materials as may be needed to produce the data identified under paragraph (a) of
this section.
(d) Requirements if additional data are not needed. (1) If the determination under
paragraph (a) of this section is that no additional data are needed to determine whether the
child continues to be a child with a disability, the public agency shall notify the child’s
parents—
(i) Of that determination and the reasons for it; and
(ii) Of the right of the parents to request an assessment to determine whether, for
purposes of services under this part, the child continues to be a child with a disability.
(2) The public agency is not required to conduct the assessment described in paragraph
(d)(1)(ii) of this section unless requested to do so by the child’s parents.
§ 300.534 Determination of eligibility.
(a) Upon completing the administration of tests and other evaluation materials—
(1) A group of qualified professionals and the parent of the child must determine whether
the child is a child with a disability, as defined in § 300.7; and
(2) The public agency must provide a copy of the evaluation report and the
documentation of determination of eligibility to the parent.
(b) A child may not be determined to be eligible under this part if—
(1) The determinant factor for that eligibility determination is—
(i) Lack of instruction in reading or math; or
(ii) Limited English proficiency; and
(2) The child does not otherwise meet the eligibility criteria under § 300.7(a).
(c)(1) A public agency must evaluate a child with a disability in accordance with
§§ 300.532 and 300.533 before determining that the child is no longer a child with a
disability.
(2) The evaluation described in paragraph (c)(1) of this section is not required before the
termination of a student’s eligibility under Part B of the Act due to graduation with a regular
high school diploma, or exceeding the age eligibility for FAPE under State law.
§ 300.535 Procedures for determining eligibility and placement.
(a) In interpreting evaluation data for the purpose of determining if a child is a child with
a disability under § 300.7, and the educational needs of the child, each public agency shall—
(1) Draw upon information from a variety of sources, including aptitude and achievement
tests, parent input, teacher recommendations, physical condition, social or cultural
background, and adaptive behavior; and
(2) Ensure that information obtained from all of these sources is documented and
carefully considered.
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(b) If a determination is made that a child has a disability and needs special education and
related services, an IEP must be developed for the child in accordance with
§§ 300.340–300.350.
§ 300.536 Reevaluation.
Each public agency shall ensure—
(a) That the IEP of each child with a disability is reviewed in accordance with
§§ 300.340–300.350; and
(b) That a reevaluation of each child, in accordance with §§ 300.532–300.535, is
conducted if conditions warrant a reevaluation, or if the child’s parent or teacher requests a
reevaluation, but at least once every three years.
R 340.1721b Individualized education program team participants.
Rule 21b. (1) The superintendent or his or her designee shall appoint participants to an
individualized education program team and shall invite the parents to be participants.
(2) Upon request of the parent, a representative of the school district of residence shall
be invited to attend the individualized education program team meeting if the district of
residence has authorized the operating district to conduct program team meetings.
§ 300.344 IEP team.
(a) General. The public agency shall ensure that the IEP team for each child with a
disability includes—
(1) The parents of the child;
(2) At least one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment);
(3) At least one special education teacher of the child, or if appropriate, at least one
special education provider of the child;
(4) A representative of the public agency who—
(i) Is qualified to provide, or supervise the provision of, specially designed instruction to
meet the unique needs of children with disabilities;
(ii) Is knowledgeable about the general curriculum; and
(iii) Is knowledgeable about the availability of resources of the public agency;
(5) An individual who can interpret the instructional implications of evaluation results,
who may be a member of the team described in paragraphs (a)(2) through (6) of this section;
(6) At the discretion of the parent or the agency, other individuals who have knowledge
or special expertise regarding the child, including related services personnel as appropriate;
and
(7) If appropriate, the child.
(b) Transition services participants. (1) Under paragraph (a)(7) of this section, the public
agency shall invite a student with a disability of any age to attend his or her IEP meeting if a
purpose of the meeting will be the consideration of—
(i) The student’s transition services needs under § 300.347(b)(1);
(ii) The needed transition services for the student under § 300.347(b)(2); or
(iii) Both.
(2) If the student does not attend the IEP meeting, the public agency shall take other steps
to ensure that the student’s preferences and interests are considered.
(3)(i) In implementing the requirements of § 300.347(b)(2), the public agency also shall
invite a representative of any other agency that is likely to be responsible for providing or
paying for transition services.
(ii) If an agency invited to send a representative to a meeting does not do so, the public
agency shall take other steps to obtain participation of the other agency in the planning of
any transition services.
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(c) Determination of knowledge and special expertise. The determination of the
knowledge or special expertise of any individual described in paragraph (a)(6) of this section
shall be made by the party (parents or public agency) who invited the individual to be a
member of the IEP.
(d) Designating a public agency representative. A public agency may designate another
public agency member of the IEP team to also serve as the agency representative, if the
criteria in paragraph (a)(4) of this section are satisfied.
§ 300.345 Parent participation.
(a) Public agency responsibility— general. Each public agency shall take steps to ensure
that one or both of the parents of a child with a disability are present at each IEP meeting or
are afforded the opportunity to participate, including—
(1) Notifying parents of the meeting early enough to ensure that they will have an
opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under paragraph (a)(1) of
this section must—
(i) Indicate the purpose, time, and location of the meeting and who will be in attendance;
and
(ii) Inform the parents of the provisions in § 300.344(a)(6) and (c) (relating to the
participation of other individuals on the IEP team who have knowledge or special expertise
about the child).
(2) For a student with a disability beginning at age 14, or younger, if appropriate, the
notice must also—
(i) Indicate that a purpose of the meeting will be the development of a statement of the
transition services needs of the student required in § 300.347(b)(1); and
(ii) Indicate that the agency will invite the student.
(3) For a student with a disability beginning at age 16, or younger, if appropriate, the
notice must—
(i) Indicate that a purpose of the meeting is the consideration of needed transition
services for the student required in § 300.347(b)(2);
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a representative.
(c) Other methods to ensure parent participation. If neither parent can attend, the public
agency shall use other methods to ensure parent participation, including individual or
conference telephone calls.
(d) Conducting an IEP meeting without a parent in attendance. A meeting may be
conducted without a parent in attendance if the public agency is unable to convince the
parents that they should attend. In this case the public agency must have a record of its
attempts to arrange a mutually agreed on time and place, such as—
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parents and any responses received; and
(3) Detailed records of visits made to the parent’s home or place of employment and the
results of those visits.
(e) Use of interpreters or other action, as appropriate. The public agency shall take
whatever action is necessary to ensure that the parent understands the proceedings at the IEP
meeting, including arranging for an interpreter for parents with deafness or whose native
language is other than English.
(f) Parent copy of child’s IEP. The public agency shall give the parent a copy of the
child’s IEP at no cost to the parent.
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R 340.1721c Scheduling individualized education program team meeting; requesting
parent participation.
Rule 21c. (1) The school district of residence is responsible for conducting the initial
individualized education program team meeting involving a student in its district and shall
conduct, or authorize the operating district to conduct, each subsequent individualized
education program team meeting at a mutually agreed upon time and place.
(2) The time from referral or from receipt of parental consent to an initial evaluation to
the completion of the individualized education program or the determination of ineligibility
shall not be more than 30 school days. This time line begins upon receipt of the signed
parental consent by the public agency requesting it and may be extended if agreed to by the
parent and public agency.
§ 300.341 Responsibility of SEA and other public agencies for IEPs.
(a) The SEA shall ensure that each public agency—
(1) Except as provided in §§ 300.450-300.462, develops and implements an IEP for each
child with a disability served by that agency; and
(2) Ensures that an IEP is developed and implemented for each eligible child placed in or
referred to a private school or facility by the public agency.
(b) Paragraph (a) of this section applies to—
(1) The SEA, if it is involved in providing direct services to children with disabilities, in
accordance with § 300.370(a) and (b)(1); and
(2) Except as provided in § 300.600(d), the other public agencies described in § 300.2,
including LEAs and other State agencies that provide special education and related services
either directly, by contract, or through other arrangements.
§ 300.342 When IEPs must be in effect.
(a) General. At the beginning of each school year, each public agency shall have an IEP
in effect for each child with a disability within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that—
(1) An IEP—
(i) Is in effect before special education and related services are provided to an eligible
child under this part; and
(ii) Is implemented as soon as possible following the meetings described under
§ 300.343;
(2) The child’s IEP is accessible to each regular education teacher, special education
teacher, related service provider, and other service provider who is responsible for its
implementation; and
(3) Each teacher and provider described in paragraph (b)(2) of this section is informed
of—
(i) His or her specific responsibilities related to implementing the child’s IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for
the child in accordance with the IEP.
(c) IEP or IFSP for children aged 3 through 5. (1) In the case of a child with a disability
aged 3 through 5 (or, at the discretion of the SEA a 2-year-old child with a disability who
will turn age 3 during the school year), an IFSP that contains the material described in
section 636 of the Act, and that is developed in accordance with §§ 300.341–300.346 and
§§ 300.349–300.350, may serve as the IEP of the child if using that plan as the IEP is—
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child’s parents.
(2) In implementing the requirements of paragraph (c)(1) of this section, the public
agency shall—
(i) Provide to the child’s parents a detailed explanation of the differences between an
IFSP and an IEP; and
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(ii) If the parents choose an IFSP, obtain written informed consent from the parents.
(d) Effective date for new requirements. All IEPs developed, reviewed, or revised on or
after July 1, 1998 must meet the requirements of §§ 300.340–300.350.
§ 300.343 IEP meetings.
(a) General. Each public agency is responsible for initiating and conducting meetings for
the purpose of developing, reviewing, and revising the IEP of a child with a disability (or, if
consistent with § 300.342(c), an IFSP).
(b) Initial IEPs; provision of services. (1) Each public agency shall ensure that within a
reasonable period of time following the agency’s receipt of parent consent to an initial
evaluation of a child—
(i) The child is evaluated; and
(ii) If determined eligible under this part, special education and related services are made
available to the child in accordance with an IEP.
(2) In meeting the requirement in paragraph (b)(1) of this section, a meeting to develop
an IEP for the child must be conducted within 30-days of a determination that the child needs
special education and related services.
(c) Review and revision of IEPs. Each public agency shall ensure that the IEP team—
(1) Reviews the child’s IEP periodically, but not less than annually, to determine whether
the annual goals for the child are being achieved; and
(2) Revises the IEP as appropriate to address—
(i) Any lack of expected progress toward the annual goals described in §300.347(a), and
in the general curriculum, if appropriate;
(ii) The results of any reevaluation conducted under § 300.536;
(iii) Information about the child provided to, or by, the parents, as described in
§ 300.533(a)(1);
(iv) The child’s anticipated needs; or
(v) Other matters.
R 340.1721d Responsibilities of the individualized education program team.
Rule 21d. Upon completing the individualized education program, the individualized
education program team shall submit the individualized education program to the
superintendent. The individualized education program shall not be restricted to the programs
and services available.
R 340.1721e Individualized education program team meeting; determination of
eligibility for special education programs and services; individualized education
program.
Rule 21e. (1) The superintendent or his or her designee shall convene an individualized
education program team meeting.
(2) An individualized education program shall be based on all diagnostic, medical, and
other evaluative information requested by the team, or provided by the parent or student who
is disabled and shall include all of the following information, in writing:
(a) A statement of the student’s present level of educational performance.
(b) A statement of annual goals, including short-term objectives.
(c) Appropriate objective criteria and evaluation procedures and schedules for
determining whether the objectives are being achieved.
(3) The individualized education program team shall determine whether the student has
a need for placement with a special education teacher who is endorsed in a particular
disability category. This subrule takes effect on July 1, 2003.
(4) Any participant in the individualized education program team’s deliberations who
disagrees, in whole or in part, with the team’s determination may indicate the reasons
23
therefor on the team’s individualized education program report or may submit a written
statement to be attached to the report.
(5) The Michigan school for the deaf shall be considered a part of the total continuum of
services for students with a hearing impairment. The resident district shall conduct the
individualized education program team meeting that initiates an assignment into the
Michigan school for the deaf. Representatives of the intermediate school district of residence
and the Michigan school for the deaf shall be invited to participate in the individualized
education program team meeting. The state board of education shall adopt procedures for
placement at the Michigan school for the deaf.
(6) The Michigan school for the blind shall be considered a part of the total continuum
of services for students with a visual impairment. The resident district shall conduct the
individualized education program team meeting that initiates an assignment into the
Michigan school for the blind. Representatives of the intermediate school district of
residence and the Michigan school for the blind shall be invited to participate in the
individualized education program team meeting. The state board of education shall adopt
procedures for placement at the Michigan school for the blind.
§ 300.346 Development, review, and revision of IEP.
(a) Development of IEP. (1) General. In developing each child’s IEP, the IEP team, shall
consider—
(i) The strengths of the child and the concerns of the parents for enhancing the education
of their child;
(ii) The results of the initial or most recent evaluation of the child; and
(iii) As appropriate, the results of the child’s performance on any general State or district-
wide assessment programs.
(2) Consideration of special factors. The IEP team also shall—
(i) In the case of a child whose behavior impedes his or her learning or that of others,
consider, if appropriate, strategies, including positive behavioral interventions, strategies, and
supports to address that behavior;
(ii) In the case of a child with limited English proficiency, consider the language needs of
the child as those needs relate to the child’s IEP;
(iii) In the case of a child who is blind or visually impaired, provide for instruction in
Braille and the use of Braille unless the IEP team determines, after an evaluation of the
child’s reading and writing skills, needs, and appropriate reading and writing media
(including an evaluation of the child’s future needs for instruction in Braille or the use of
Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
(iv) Consider the communication needs of the child, and in the case of a child who is deaf
or hard of hearing, consider the child’s language and communication needs, opportunities for
direct communications with peers and professional personnel in the child’s language and
communication mode, academic level, and full range of needs, including opportunities for
direct instruction in the child’s language and communication mode; and
(v) Consider whether the child requires assistive technology devices and services.
(b) Review and Revision of IEP. In conducting a meeting to review, and, if appropriate,
revise a child’s IEP, the IEP team shall consider the factors described in paragraph (a) of this
section.
(c) Statement in IEP. If, in considering the special factors described in paragraphs (a)(1)
and (2) of this section, the IEP team determines that a child needs a particular device or
service (including an intervention, accommodation, or other program modification) in order
for the child receive FAPE, the IEP team must include a statement to that effect in the child’s
IEP.
(d) Requirement with respect to regular education teacher. The regular education teacher
of a child with a disability, as a member of the IEP team, must, to the extent appropriate,
24
participate in the development, review, and revision of the child’s IEP, including assisting in
the determination of—
(1) Appropriate positive behavioral interventions and strategies for the child; and
(2) Supplementary aids and services, program modifications or supports for school
personnel that will be provided for the child, consistent with § 300.347(a)(3).
(e) Construction. Nothing in this section shall be construed to require the IEP team to
include information under one component of a child’s IEP that is already contained under
another component of the child’s IEP.
§ 300.347 Content of IEP.
(a) General. The IEP for each child with a disability must include—
(1) A statement of the child’s present levels of educational performance, including—
(i) How the child’s disability affects the child’s involvement and progress in the general
curriculum (i.e., the same curriculum as for nondisabled children); or
(ii) For preschool children, as appropriate, how the disability affects the child’s
participation in appropriate activities;
(2) A statement of measurable annual goals, including benchmarks or short-term
objectives, related to—
(i) Meeting the child’s needs that result from the child’s disability to enable the child to
be involved in and progress in the general curriculum (i.e., the same curriculum as for
nondisabled children), or for preschool children, as appropriate, to participate in appropriate
activities; and
(ii) Meeting each of the child’s other educational needs that result from the child’s
disability;
(3) A statement of the special education and related services and supplementary aids and
services to be provided to the child, or on behalf of the child, and a statement of the program
modifications or supports for school personnel that will be provided for the child—
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with paragraph
(a)(1) of this section and to participate in extracurricular and other nonacademic activities;
and
(iii) To be educated and participate with other children with disabilities and nondisabled
children in the activities described in this section;
(4) An explanation of the extent, if any, to which the child will not participate with
nondisabled children in the regular class and in the activities described in paragraph (a)(3) of
this section;
(5)(i) A statement of any individual modifications in the administration of State or
district-wide assessments of student achievement that are needed in order for the child to
participate in the assessment; and
(ii) If the IEP team determines that the child will not participate in a particular State or
district-wide assessment of student achievement (or part of an assessment), a statement of—
(A) Why that assessment is not appropriate for the child; and
(B) How the child will be assessed;
(6) The projected date for the beginning of the services and modifications described in
paragraph (a)(3) of this section, and the anticipated frequency, location, and duration of
those services and modifications; and
(7) A statement of—
(i) How the child’s progress toward the annual goals described in paragraph (a)(2) of this
section will be measured; and
(ii) How the child’s parents will be regularly informed (through such means as periodic
report cards), at least as often as parents are informed of their nondisabled children’s
progress, of—
(A) Their child’s progress toward the annual goals; and
25
(B) The extent to which that progress is sufficient to enable the child to achieve the goals
by the end of the year.
(b) Transition services. The IEP must include—
(1) For each student with a disability beginning at age 14 (or younger, if determined
appropriate by the IEP team), and updated annually, a statement of the transition service
needs of the student under the applicable components of the student’s IEP that focuses on the
student’s courses of study (such as participation in advanced-placement courses or a
vocational education program); and
(2) For each student beginning at age 16 (or younger, if determined appropriate by the
IEP team), a statement of needed transition services for the student, including, if appropriate,
a statement of the interagency responsibilities or any needed linkages.
(c) Transfer of rights. In a State that transfers rights at the age majority, beginning at least
one year before a student reaches the age of majority under State law, the student’s IEP must
include a statement that the student has been informed of his or her rights under Part B of the
Act, if any, that will transfer to the student on reaching the age of majority, consistent with
§ 300.517.
(d) Students with disabilities convicted as adults and incarcerated in adult prisons.
Special rules concerning the content of IEPs for students with disabilities convicted as adults
and incarcerated in adult prisons are contained in § 300.311(b) and (c).
§ 300.348 Agency responsibilities for transition services.
(a) If a participating agency, other than the public agency, fails to provide the transition
services described in the IEP in accordance with § 300.347(b)(1), the public agency shall
reconvene the IEP team to identify alternative strategies to meet the transition objectives for
the student set out in the IEP.
(b) Nothing in this part relieves any participating agency, including a State vocational
rehabilitation agency, of the responsibility to provide or pay for any transition service that
the agency would otherwise provide to students with disabilities who meet the eligibility
criteria of that agency.
R 340.1722 Placement in special education programs and services.
Rule 22. (1) The individualized education program team determines the educational
placement of a student with a disability in programs and services from a continuum of
alternative placements, such as instruction in general education classes, special classes or
special instruction in general education classes, special classes or special schools, home
instruction in hospitals and institutions, resource rooms, or itinerant instruction with general
education class placements.
(2) The superintendent or his or her designee shall appoint a staff person to be
responsible for the implementation of the individualized education program, including
services provided by other agencies. The person shall be either the principal of the building
where the primary educational program is provided to the student who has a disability or
other staff person who is generally accessible to the staff and who will be working with the
student who has a disability.
§ 300.550 General LRE requirements.
(a) Except as provided in § 300.311(b) and (c), a State shall demonstrate to the
satisfaction of the Secretary that the State has in effect policies and procedures to ensure that
it meets the requirements of §§ 300.550–300.556.
(b) Each public agency shall ensure—
(1) That to the maximum extent appropriate, children with disabilities, including children
in public or private institutions or other care facilities, are educated with children who are
nondisabled; and
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(2) That special classes, separate schooling or other removal of children with disabilities
from the regular educational environment occurs only if the nature or severity of the
disability is such that education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
§ 300.551 Continuum of alternative placements.
(a) Each public agency shall ensure that a continuum of alternative placements is
available to meet the needs of children with disabilities for special education and related
services.
(b) The continuum required in paragraph (a) of this section must—
(1) Include the alternative placements listed in the definition of special education under
§ 300.26 (instruction in regular classes, special classes, special schools, home instruction,
and instruction in hospitals and institutions); and
(2) Make provision for supplementary services (such as resource room or itinerant
instruction) to be provided in conjunction with regular class placement.
§ 300.552 Placements.
In determining the educational placement of a child with a disability, including a
preschool child with a disability, each public agency shall ensure that—
(a) The placement decision—
(1) Is made by a group of persons, including the parents, and other persons
knowledgeable about the child, the meaning of the evaluation data, and the placement
options; and
(2) Is made in conformity with the LRE provisions of this subpart, including
§§ 300.550–300.554;
(b) The child’s placement—
(1) Is determined at least annually;
(2) Is based on the child’s IEP; and
(3) Is as close as possible to the child’s home;
(c) Unless the IEP of a child with a disability requires some other arrangement, the child
is educated in the school that he or she would attend if nondisabled;
(d) In selecting the LRE, consideration is given to any potential harmful effect on the
child or on the quality of services that he or she needs; and
(e) A child with a disability is not removed from education in age-appropriate regular
classrooms solely because of needed modifications in the general curriculum.
§ 300.553 Nonacademic settings.
In providing or arranging for the provision of nonacademic and extracurricular services
and activities, including meals, recess periods, and the services and activities set forth in
§ 300.306, each public agency shall ensure that each child with a disability participates with
nondisabled children in those services and activities to the maximum extent appropriate to
the needs of that child.
R 340.1722a Implementation of individualized education program.
Rule 22a. (1) The superintendent of the school district of residence, upon receipt of the
individualized education program, shall, within 7 calendar days, either appeal under
R 340.1724 or provide written notice to the parent of the agency’s intent to implement
special education programs and services. The notice shall identify where the programs and
services are to be provided and when the individualized education program begins.
(2) The parent, upon receipt of notification from the superintendent, shall have the right,
at any time, to appeal the decision under R 340.1724. If the parent does not appeal, then the
superintendent shall initiate the individualized education program as soon as possible, but not
later than 15 school days after the parent has been notified. An initiation date may be later
27
than 15 school days if clearly specified in the individualized education program; however, a
projected initiation date shall not be used to deny or delay programs or services because they
are not available and shall not be used for purposes of administrative convenience.
(3) If a student with a disability is to be provided special education or related services
for the first time, then the parent has 10 calendar days after receipt of the notice from the
superintendent to provide the public agency with written consent to provide special education
programs and services. If the parent refuses consent or does not respond, then the public
agency has the right to request a hearing under R 340.1724.
§ 300.503 Prior notice by the public agency; content of notice.
(a) Notice. (1) Written notice that meets the requirements of paragraph (b) of this section
must be given to the parents of a child with a disability a reasonable time before the public
agency—
(i) Proposes to initiate or change the identification, evaluation, or educational placement
of the child or the provision of FAPE to the child; or
(ii) Refuses to initiate or change the identification, evaluation, or educational placement
of the child or the provision of FAPE to the child.
(2) If the notice described under paragraph (a)(1) of this section relates to an action
proposed by the public agency that also requires parental consent under § 300.505, the
agency may give notice at the same time it requests parent consent.
(b) Content of notice. The notice required under paragraph (a) of this section must
include—
(1) A description of the action proposed or refused by the agency;
(2) An explanation of why the agency proposes or refuses to take the action;
(3) A description of any other options that the agency considered and the reasons why
those options were rejected;
(4) A description of each evaluation procedure, test, record, or report the agency used as
a basis for the proposed or refused action;
(5) A description of any other factors that are relevant to the agency’s proposal or refusal;
(6) A statement that the parents of a child with a disability have protection under the
procedural safeguards of this part and, if this notice is not an initial referral for evaluation,
the means by which a copy of a description of the procedural safeguards can be obtained;
and
(7) Sources for parents to contact to obtain assistance in understanding the provisions of
this part.
(c) Notice in understandable language. (1) The notice required under paragraph (a) of
this section must be—
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of communication used
by the parent, unless it is clearly not feasible to do so.
(2) If the native language or other mode of communication of the parent is not a written
language, the public agency shall take steps to ensure—
(i) That the notice is translated orally or by other means to the parent in his or her native
language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in paragraphs (c)(2) (i) and (ii)
of this section have been met.
§ 300.505 Parental consent.
(a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this section, informed parent
consent must be obtained before—
(i) Conducting an initial evaluation or reevaluation; and
(ii) Initial provision of special education and related services to a child with a disability.
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(2) Consent for initial evaluation may not be construed as consent for initial placement
described in paragraph (a)(1)(ii) of this section.
(3) Parental consent is not required before—
(i) Reviewing existing data as part of an evaluation or a reevaluation; or
(ii) Administering a test or other evaluation that is administered to all children unless,
before administration of that test or evaluation, consent is required of parents of all children.
(b) Refusal. If the parents of a child with a disability refuse consent for initial evaluation
or a reevaluation, the agency may continue to pursue those evaluations by using the due
process procedures under §§ 300.507–300.509, or the mediation procedures under § 300.506
if appropriate, except to the extent inconsistent with State law relating to parental consent.
(c) Failure to respond to request for reevaluation. (1) Informed parental consent need not
be obtained for reevaluation if the public agency can demonstrate that it has taken reasonable
measures to obtain that consent, and the child’s parent has failed to respond.
(2) To meet the reasonable measures requirement in paragraph (c)(1) of this section, the
public agency must use procedures consistent with those in § 300.345(d).
(d) Additional State consent requirements. In addition to the parental consent
requirements described in paragraph (a) of this section, a State may require parental consent
for other services and activities under this part if it ensures that each public agency in the
State establishes and implements effective procedures to ensure that a parent’s refusal to
consent does not result in a failure to provide the child with FAPE.
(e) Limitation. A public agency may not use a parent’s refusal to consent to one service
or activity under paragraphs (a) and (d) of this section to deny the parent or child any other
service, benefit, or activity of the public agency, except as required by this part.
R 340.1722e Previous enrollment in special education.
Rule 22e. (1) If a student who currently receives special education programs or services
enrolls in a new school district, then the new school district shall do either of the following:
(a) With the parent’s consent, immediately implement the student’s current
individualized education program.
(b) With the parent’s consent, immediately place the student in an appropriate
program or service and convene an individualized education program team meeting within
30 school days to develop an individualized education program.
(2) If the parent does not provide consent for placement, then the school district will
implement the student’s current individualized education program to the extent possible and
an individualized education program team meeting shall be convened to develop a new
individualized education program as soon as possible, but not later than 30 school days.
R 340.1723c Right to independent educational evaluation.
Rule 23c. (1) Each public agency shall provide parents with information about
independent educational evaluations at public expense. The information shall include all of
the following:
(a) Criteria regarding credentials for qualified examiners.
(b) Suggested sources and locations.
(c) Procedures for reimbursement.
(d) Reasonable expected costs.
(e) Notification that the parent is not restricted to choosing from sources suggested
by the public agency.
(2) A parent has the right to an independent educational evaluation at public expense if
the parent disagrees with an evaluation obtained by the public agency. The parent shall
submit the parent’s disagreement and request in written, signed, and dated form. However,
the public agency may initiate a hearing under R 340.1724 to show that its evaluation is
appropriate. The public agency shall respond, in writing, to the request within 7 calendar
days of its receipt by indicating the public agency’s intention to honor the request or to
29
initiate the hearing procedure under R 340.1724. If the hearing officer determines that the
evaluation is appropriate, then the parent still has the right to an independent educational
evaluation, but not at public expense.
(3) The school district shall disclose to the parent, before evaluation, whether the
examiner who was contracted to provide an independent educational evaluation provides
services to the public agency that are in addition to the independent educational evaluation.
(4) An independent educational evaluation shall not be conducted by an examiner or
examiners who otherwise or regularly contract with the public agency to provide services,
unless the examiner or examiners are agreeable to the parent.
§ 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the right under this part to
obtain an independent educational evaluation of the child, subject to paragraphs (b) through
(e) of this section.
(2) Each public agency shall provide to parents, upon request for an independent
educational evaluation, information about where an independent educational evaluation may
be obtained, and the agency criteria applicable for independent educational evaluations as set
forth in paragraph (e) of this section.
(3) For the purposes of this part—
(i) Independent educational evaluation means an evaluation conducted by a qualified
examiner who is not employed by the public agency responsible for the education of the
child in question; and
(ii) Public expense means that the public agency either pays for the full cost of the
evaluation or ensures that the evaluation is otherwise provided at no cost to the parent,
consistent with § 300.301.
(b) Parent right to evaluation at public expense. (1) A parent has the right to an
independent educational evaluation at public expense if the parent disagrees with an
evaluation obtained by the public agency.
(2) If a parent requests an independent educational evaluation at public expense, the
public agency must, without unnecessary delay, either—
(i) Initiate a hearing under § 300.507 to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense,
unless the agency demonstrates in a hearing under § 300.507 that the evaluation obtained by
the parent did not meet agency criteria.
(3) If the public agency initiates a hearing and the final decision is that the agency’s
evaluation is appropriate, the parent still has the right to an independent educational
evaluation, but not at public expense.
(4) If a parent requests an independent educational evaluation, the public agency may ask
for the parent’s reason why he or she objects to the public evaluation. However, the
explanation by the parent may not be required and the public agency may not unreasonably
delay either providing the independent educational evaluation at public expense or initiating
a due process hearing to defend the public evaluation.
(c) Parent-initiated evaluations. If the parent obtains an independent educational
evaluation at private expense, the results of the evaluation—
(1) Must be considered by the public agency, if it meets agency criteria, in any decision
made with respect to the provision of FAPE to the child; and
(2) May be presented as evidence at a hearing under this subpart regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing officer requests an
independent educational evaluation as part of a hearing, the cost of the evaluation must be at
public expense.
(e) Agency criteria. (1) If an independent educational evaluation is at public expense, the
criteria under which the evaluation is obtained, including the location of the evaluation and
the qualifications of the examiner, must be the same as the criteria that the public agency
30
uses when it initiates an evaluation, to the extent those criteria are consistent with the
parent’s right to an independent educational evaluation.
(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency
may not impose conditions or timelines related to obtaining an independent educational
evaluation public expense.
R 340.1724 Impartial due process hearing.
Rule 24. (1) A parent, the school district of residence, the school district of operation, the
Michigan schools for the deaf and blind, or the department may initiate a hearing on any of
the matters relating to the identification, evaluation, educational placement of the student, or
the provision of a free appropriate public education. The party initiating a hearing shall
notify the other parties, in writing, of its intent to initiate the hearing.
(2) The hearing shall be arranged or conducted by the district of residence and the
district of residence shall pay all direct costs incurred by the school district as a result of
arranging or conducting the hearing.
(3) Before the appointment or selection of a hearing officer, the hearing may be delayed
or terminated upon written stipulation by the public agency and the parent. The agency
responsible for the hearing shall submit the written stipulation to the department. After the
appointment or selection of a hearing officer, the hearing may be delayed with the approval
of the hearing officer or terminated upon written stipulation of the public agency and the
parent. A copy of the stipulation to terminate shall be provided to the hearing officer and to
the department.
(4) Each public agency responsible for arranging or conducting a hearing shall
immediately forward to the department 2 copies of the hearing decision; 1 with all personal
identifiers pertaining to the student deleted and 1 with personal identifiers included.
(5) The department shall send a copy of the decision to the intermediate school district
with a notice to inform the department that the decision has been implemented.
(6) Any party who is aggrieved by the findings and the decision of a hearing conducted
under this rule may appeal to the department within 25 calendar days of receipt of the
decision for a state review. The appealing party shall send a copy of the party’s appeal to the
other party. The department of education shall adopt procedures for appointment of review
officers and an appeal process.
(7) In the absence of an appeal, unless otherwise specified in the hearing officer’s
decision or the reviewing official’s decision, the decision shall be implemented by the public
agency within 15 school days of the agency’s receipt of the decision.
§ 300.507 Impartial due process hearing; parent notice.
(a) General. (1) A parent or a public agency may initiate a hearing on any of the matters
described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational
placement of a child with a disability, or the provision of FAPE to the child).
(2) When a hearing is initiated under paragraph (a)(1) of this section, the public agency
shall inform the parents of the availability of mediation described in § 300.506.
(3) The public agency shall inform the parent of any free or low-cost legal and other
relevant services available in the area if—
(i) The parent requests the information; or
(ii) The parent or the agency initiates a hearing under this section.
(b) Agency responsible for conducting hearing. The hearing described in paragraph (a) of
this section must be conducted by the SEA or the public agency directly responsible for the
education of the child, as determined under State statute, State regulation, or a written policy
of the SEA.
(c) Parent notice to the public agency. (1) General. The public agency must have
procedures that require the parent of a child with a disability or the attorney representing the
31
child, to provide notice (which must remain confidential) to the public agency in a request
for a hearing under paragraph (a)(1) of this section.
(2) Content of parent notice. The notice required in paragraph (c)(1) of this section must
include—
(i) The name of the child;
(ii) The address of the residence of the child;
(iii) The name of the school the child is attending;
(iv) A description of the nature of the problem of the child relating to the proposed or
refused initiation or change, including facts relating to the problem; and
(v) A proposed resolution of the problem to the extent known and available to the parents
at the time.
(3) Model form to assist parents. Each SEA shall develop a model form to assist parents
in filing a request for due process that includes the information required in paragraphs (c)(1)
and (2) of this section.
(4) Right to due process hearing. A public agency may not deny or delay a parent’s right
to a due process hearing for failure to provide the notice required in paragraphs (c)(1) and (2)
of this section.
R 340.1724a Impartial hearing officer; appointment.
Rule 24a. (1) The superintendent of the public agency shall contract for the services of
an impartial hearing officer who is mutually agreeable to both parties or who has been
appointed by the department. If the parent and the public agency cannot agree on a hearing
officer within 14 calendar days following the hearing request, then the superintendent shall
immediately request that the department appoint an impartial hearing officer according to
procedures established by the department.
(2) A hearing shall not be conducted by an employee or board member of the involved
local school district, of another local school district within the same intermediate school
district, of a public school academy within the same intermediate school district, or of the
intermediate school district of which the involved local school district is a part.
(3) Each public agency shall keep a current department-developed and departmentdistributed
list of the persons trained as hearing officers according to procedures established
by the department who serve as hearing officers. This list shall be provided to parents upon
any request for a hearing. The list shall include a statement of qualifications of each of the
listed persons.
§ 300.508 Impartial hearing officer.
(a) A hearing may not be conducted—
(1) By a person who is an employee of the State agency or the LEA that is involved in
the education or care of the child; or
(2) By any person having a personal or professional interest that would conflict with his
or her objectivity in the hearing.
(b) A person who otherwise qualifies to conduct a hearing under paragraph (a) of this
section is not an employee of the agency solely because he or she is paid by the agency to
serve as a hearing officer.
(c) Each public agency shall keep a list of the persons who serve as hearing officers. The
list must include a statement of the qualifications of each those persons.
§ 300.509 Hearing rights.
(a) General. Any party to a hearing conducted pursuant to §§ 300.507 or 300.520–
300.528, or an appeal conducted pursuant to § 300.510, has the right to—
(1) Be accompanied and advised by counsel and by individuals with special knowledge
or training with respect to the problems of children with disabilities;
32
(2) Present evidence and confront, cross-examine, and compel the attendance of
witnesses;
(3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to
that party at least 5 business days before the hearing;
(4) Obtain a written, or, at the option of the parents, electronic, verbatim record of the
hearing; and
(5) Obtain written, or, at the option of the parents, electronic findings of fact and
decisions.
(b) Additional disclosure of information. (1) At least 5 business days prior to a hearing
conducted pursuant to § 300.507(a), each party shall disclose to all other parties all
evaluations completed by that date and recommendations based on the offering party’s
evaluations that the party intends to use at the hearing.
(2) A hearing officer may bar any party that fails to comply with paragraph (b)(1) of this
section from introducing the relevant evaluation or recommendation at the hearing without
the consent of the other party.
(c) Parental rights at hearings. (1) Parents involved in hearings must be given the right
to—
(i) Have the child who is the subject of the hearing present; and
(ii) Open the hearing to the public.
(2) The record of the hearing and the findings of fact and decisions described in
paragraphs (a)(4) and (a)(5) of this section must be provided at no cost to parents.
(d) Findings and decision to advisory panel and general public. The public agency, after
deleting any personally identifiable information, shall —
(1) Transmit the findings and decisions referred to in paragraph (a)(5) of this section to
the State advisory panel established under § 300.650; and
(2) Make those findings and decisions available to the public.
§ 300.510 Finality of decision; appeal; impartial review.
(a) Finality of decision. A decision made in a hearing conducted pursuant to §§ 300.507
or 300.520–300.528 is final, except that any party involved in the hearing may appeal the
decision under the provisions of paragraph (b) of this section and § 300.512.
(b) Appeal of decisions; impartial review. (1) General. If the hearing required by
§ 300.507 is conducted by a public agency other than the SEA, any party aggrieved by the
findings and decision in the hearing may appeal to the SEA.
(2) SEA responsibility for review. If there is an appeal, the SEA shall conduct an
impartial review of the hearing. The official conducting the review shall—
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the hearing were consistent with the requirements of
due process;
(iii) Seek additional evidence if necessary. If a hearing is held to receive additional
evidence, the rights in § 300.509 apply;
(iv) Afford the parties an opportunity for oral or written argument, or both, at the
discretion of the reviewing official;
(v) Make an independent decision on completion of the review; and
(vi) Give a copy of the written, or, at the option of the parents, electronic findings of fact
and decisions to the parties.
(c) Findings and decision to advisory panel and general public. The SEA, after deleting
any personally identifiable information, shall—
(1) Transmit the findings and decisions referred to in paragraph (b)(2)(vi) of this section
to the State advisory panel established under § 300.650; and
(2) Make those findings and decisions available to the public.
(d) Finality of review decision. The decision made by the reviewing official is final
unless a party brings a civil action under § 300.512.
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§ 300.511 Timelines and convenience of hearings and reviews.
(a) The public agency shall ensure that not later than 45 days after the receipt of a request
for a hearing—
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The SEA shall ensure that not later than 30 days after the receipt of a request for a
review—
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of time beyond the
periods set out in paragraphs (a) and (b) of this section at the request of either party.
(d) Each hearing and each review involving oral arguments must be conducted at a time
and place that is reasonably convenient to the parents and child involved.
§ 300.512 Civil action.
(a) General. Any party aggrieved by the findings and decision made under §§ 300.507 or
300.520–300.528 who does not have the right to an appeal under § 300.510(b), and any party
aggrieved by the findings and decision under § 300.510(b), has the right to bring a civil
action with respect to the complaint presented pursuant to § 300.507. The action may be
brought in any State court of competent jurisdiction or in a district court of the United States
without regard to the amount in controversy.
(b) Additional requirements. In any action brought under paragraph (a) of this section,
the court—
(1) Shall receive the records of the administrative proceedings;
(2) Shall hear additional evidence at the request of a party; and
(3) Basing its decision on the preponderance of the evidence, shall grant the relief that the
court determines to be appropriate.
(c) Jurisdiction of district courts. The district courts of the United States have jurisdiction
of actions brought under section 615 of the Act without regard to the amount in controversy.
(d) Rule of construction. Nothing in this part restricts or limits the rights, procedures, and
remedies available under the Constitution, the Americans with Disabilities Act of 1990, title
V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil action under these laws seeking relief
that is also available under section 615 of the Act, the procedures under §§ 300.507 and
300.510 must be exhausted to the same extent as would be required had the action been
brought under section 615 of the Act.
§ 300.513 Attorneys’ fees.
(a) In any action or proceeding brought under section 615 of the Act, the court, in its
discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child
with a disability who is the prevailing party.
(b)(1) Funds under Part B of the Act may not be used to pay attorneys’ fees or costs of a
party related to an action or proceeding under section 615 of the Act and subpart E of this
part.
(2) Paragraph (b)(1) of this section does not preclude a public agency from using funds
under Part B of the Act for conducting an action or proceeding under section 615 of the Act.
(c) A court awards reasonable attorney’s fees under section 615(i)(3) of the Act
consistent with the following:
(1) Determination of amount of attorneys’ fees. Fees awarded under section 615(i)(3) of
the Act must be based on rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished. No bonus or multiplier may
be used in calculating the fees awarded under this subsection.
34
(2) Prohibition of attorneys’ fees and related costs for certain services. (i) Attorneys’
fees may not be awarded and related costs may not be reimbursed in any action or
proceeding under section 615 of the Act for services performed subsequent to the time of a
written offer of settlement to a parent if—
(A) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil
Procedure or, in the case of an administrative proceeding, at any time more than 10 days
before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the relief finally obtained by the
parents is not more favorable to the parents than the offer of settlement.
(ii) Attorneys’ fees may not be awarded relating to any meeting of the IEP team unless
the meeting is convened as a result of an administrative proceeding or judicial action, or at
the discretion of the State, for a mediation described in § 300.506 that is conducted prior to
the filing of a request for due process under §§ 300.507 or 300.520–300.528.
(3) Exception to prohibition on attorneys’ fees and related costs. Notwithstanding
paragraph (c)(2) of this section, an award of attorneys’ fees and related costs may be made to
a parent who is the prevailing party and who was substantially justified in rejecting the
settlement offer.
(4) Reduction of amount of attorneys’ fees. Except as provided in paragraph (c)(5) of this
section, the court reduces, accordingly, the amount of the attorneys’ fees awarded under
section 615 of the Act, if the court finds that—
(i) The parent, during the course of the action or proceeding, unreasonably protracted the
final resolution of the controversy;
(ii) The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably
exceeds the hourly rate prevailing in the community for similar services by attorneys of
reasonably comparable skill, reputation, and experience;
(iii) The time spent and legal services furnished were excessive considering the nature of
the action or proceeding; or
(iv) The attorney representing the parent did not provide to the school district the
appropriate information in the due process complaint in accordance with § 300.507(c).
(5) Exception to reduction in amount of attorneys’ fees. The provisions of paragraph
(c)(4) of this section do not apply in any action or proceeding if the court finds that the State
or local agency unreasonably protracted the final resolution of the action or proceeding or
there was a violation of section 615 of the Act.
§ 300.514 Child’s status during proceedings.
(a) Except as provided in § 300.526, during the pendency of any administrative or
judicial proceeding regarding a complaint under § 300.507, unless the State or local agency
and the parents of the child agree otherwise, the child involved in the complaint must remain
in his or her current educational placement.
(b) If the complaint involves an application for initial admission to public school, the
child, with the consent of the parents, must be placed in the public school until the
completion of all the proceedings.
(c) If the decision of a hearing officer in a due process hearing conducted by the SEA or a
State review official in an administrative appeal agrees with the child’s parents that a change
of placement is appropriate, that placement must be treated as an agreement between the
State or local agency and the parents for purposes of paragraph (a) of this section.
R 340.1724c Expedited hearings.
Rule 24c. (1) The expedited hearing process shall be a 1-tier hearing process. The
superintendent or chief executive officer of each public agency shall contract for the services
of a mutually agreed upon impartial special education hearing officer within 5 business days
of receipt of a written request for an expedited hearing.
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(2) If the parties to an expedited hearing cannot mutually agree on the selection of an
impartial special education hearing officer, then the public agency shall request the
department to immediately appoint a special education hearing officer from the current
department-developed and department-distributed list of the persons who serve as hearing
officers as required by R 340.1724a(3).
(3) Expedited hearings shall address only those issues of disagreement relating to any of
the following:
(a) A determination that a student’s behavior was not a manifestation of the
student’s disability.
(b) A decision regarding the provision of an appropriate interim alternative
educational setting.
(c) Seeking an interim alternative setting for not more than 45 days for a student
who may demonstrate potential harmful or injurious behavior to himself, herself, or others.
(4) The parties to an expedited hearing shall, within 5 business days before the hearing,
provide the other party with a list of potential witnesses and any documents to be used as
evidence, including, but not limited to, any pertinent evaluations and recommendations.
(5) The special education hearing officer has the authority to rule on a request to bar any
evidence to be used in an expedited hearing not disclosed to the other party at least 5
business days before the expedited hearing only when the introduction of evidence is
disputed by the other party.
(6) The special education hearing officer shall render and mail a final decision to all
parties within 45 calendar days after the receipt of the written request for an expedited
hearing from the superintendent or chief executive officer or his or her designee without
exceptions or time extensions.
(7) Any party to the expedited hearing who is aggrieved by the decision of the hearing
officer may appeal the decision to a court of competent jurisdiction.
§ 300.528 Expedited due process hearings.
(a) Expedited due process hearings under §§ 300.521–300.526 must—
(1) Meet the requirements of § 300.509, except that a State may provide that the time
periods identified in §§ 300.509(a)(3) and § 300.509(b) for purposes of expedited due
process hearings under §§ 300.521–300.526 are not less than two business days; and
(2) Be conducted by a due process hearing officer who satisfies the requirements of
§ 300.508.
(b)(1) Each State shall establish a timeline for expedited due process hearings that results
in a written decision being mailed to the parties within 45 days of the public agency’s receipt
of the request for the hearing, without exceptions or extensions.
(2) The timeline established under paragraph (b)(1) of this section must be the same for
hearings requested by parents or public agencies.
(c) A State may establish different procedural rules for expedited hearings under
§§ 300.521–300.526 than it has established for due process hearings under § 300.507.
(d) The decisions on expedited due process hearings are appealable consistent with
§ 300.510.
R 340.1724d Mediation.
Rule 24d. (1) A parent or public agency may request a mediation process in which the
relief sought consists of a mutually agreeable settlement between the parties of a dispute that
might be the subject of a complaint under part 8 of the rules or a due process hearing under
R 340.1724 or R 340.1724(c).
(2) The mediator shall be subject to mutual agreement by the parties.
(3) The state board shall approve procedures regarding the mediation process.
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§ 300.506 Mediation.
(a) General. Each public agency shall ensure that procedures are established and
implemented to allow parties to disputes involving any matter described in § 300.503(a)(1) to
resolve the disputes through a mediation process that, at a minimum, must be available
whenever a hearing is requested under §§ 300.507 or 300.520–300.528.
(b) Requirements. The procedures must meet the following requirements:
(1) The procedures must ensure that the mediation process—
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent’s right to a due process hearing under § 300.507,
or to deny any other rights afforded under Part B of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is trained in effective
mediation techniques.
(2)(i) The State shall maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special education and
related services.
(ii) If a mediator is not selected on a random (e.g., a rotation) basis from the list described
in paragraph (b)(2)(i) of this section, both parties must be involved in selecting the mediator
and agree with the selection of the individual who will mediate.
(3) The State shall bear the cost of the mediation process, including the costs of meetings
described in paragraph (d) of this section.
(4) Each session in the mediation process must be scheduled in a timely manner and must
be held in a location that is convenient to the parties to the dispute.
(5) An agreement reached by the parties to the dispute in the mediation process must be
set forth in a written mediation agreement.
(6) Discussions that occur during the mediation process must be confidential and may not
be used as evidence in any subsequent due process hearings or civil proceedings, and the
parties to the mediation process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(c) Impartiality of mediator. (1) An individual who serves as a mediator under this part—
(i) May not be an employee of—
(A) Any LEA or any State agency described under § 300.194; or
(B) An SEA that is providing direct services to a child who is the subject of the
mediation process; and
(ii) Must not have a personal or professional conflict of interest.
(2) A person who otherwise qualifies as a mediator is not an employee of an LEA or
State agency described under § 300.194 solely because he or she is paid by the agency to
serve as a mediator.
(d) Meeting to encourage mediation. (1) A public agency may establish procedures to
require parents who elect not to use the mediation process to meet, at a time and location
convenient to the parents, with a disinterested party—
(i) Who is under contract with a parent training and information center or community
parent resource center in the State established under section 682 or 683 of the Act, or an
appropriate alternative dispute resolution entity; and
(ii) Who would explain the benefits of the mediation process, and encourage the parents
to use the process.
(2) A public agency may not deny or delay a parent’s right to a due process hearing under
§ 300.507 if the parent fails to participate in the meeting described in paragraph (d)(1) of this
section.
R 340.1725e Hearing officer or state reviewing official; duties and authority.
Rule 25e. (1) The hearing officer or state reviewing official has the authority to do all of
the following:
(a) Administer oaths and affirmations.
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(b) Sign and issue subpoenas requiring the attendance and giving of testimony by
witnesses and the production of documents.
(c) Provide for the taking of testimony.
(d) Require a prehearing conference, if appropriate, to consider and take action
regarding any of the following:
(i) The formulation and simplification of the issues.
(ii) Admissions of fact and documents that will avoid unnecessary testimony.
(iii) The need and scheduling for the filing of motions, briefs, and dates for
further conferences and the hearing.
(iv) Settlement, which may include encouraging the use of mediation or other
alternative dispute resolution options.
(v) The filing and disposition of requests or motions.
(vi) Establishing a reasonable limit on the time allowed for presenting
evidence.
(vii) Other matters as may facilitate the disposition of the hearing.
(e) Control the conduct of parties or participants in the hearing for the purpose of
assuring an orderly procedure.
(f) Grant a specific extension of time at the request of either party for good cause.
(2) The hearing officer shall disclose to both parties any relationship of a professional or
personal nature that might have a bearing on the hearing officer’s ability to conduct a fair
hearing or render an impartial decision and shall consider motions to disqualify himself or
herself.
(3) The hearing officer may admit and consider evidence of a type commonly relied
upon by reasonably prudent persons in the conduct of their affairs. Irrelevant, immaterial,
and unduly repetitious evidence may be excluded. Effect shall be given to the rules of
privilege recognized by law.
R 340.1725f Surrogate parent.
Rule 25f. Each public agency shall appoint persons to serve as surrogate parents in
accordance with procedures approved by the state board of education.
§ 300.515 Surrogate parents.
(a) General. Each public agency shall ensure that the rights of a child are protected if—
(1) No parent (as defined in § 300.20) can be identified;
(2) The public agency, after reasonable efforts, cannot discover the whereabouts of a
parent; or
(3) The child is a ward of the State under the laws of that State.
(b) Duty of public agency. The duty of a public agency under paragraph (a) of this section
includes the assignment of an individual to act as a surrogate for the parents. This must
include a method—
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
(c) Criteria for selection of surrogates. (1) The public agency may select a surrogate
parent in any way permitted under State law.
(2) Except as provided in paragraph (c)(3) of this section, public agencies shall ensure
that a person selected as a surrogate—
(i) Is not an employee of the SEA, the LEA, or any other agency that is involved in the
education or care of the child;
(ii) Has no interest that conflicts with the interest of the child he or she represents; and
(iii) Has knowledge and skills that ensure adequate representation of the child.
(3) A public agency may select as a surrogate a person who is an employee of a
nonpublic agency that only provides non-educational care for the child and who meets the
standards in paragraphs (c)(2)(ii) and (iii) of this section.
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(d) Non-employee requirement; compensation. A person who otherwise qualifies to be a
surrogate parent under paragraph (c) of this section is not an employee of the agency solely
because he or she is paid by the agency to serve as a surrogate parent.
(e) Responsibilities. The surrogate parent may represent the child in all matters relating
to—
(1) The identification, evaluation, and educational placement of the child; and
(2) The provision of FAPE to the child.
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PART 3.
ADMINISTRATION OF PROGRAMS AND SERVICES
R 340.1732 Designation of residency.
Rule 32. (1) A student with a disability is a resident of 1 school district in which the
student has enrolled, and in which at least 1 of the student’s parents resides. If the parents are
legally separated or divorced and reside in different school districts, then the student with a
disability may enroll in 1 of the school districts where either parent resides, regardless of the
school district of residence of the parent having custody. The school district in which the
student has enrolled remains the student’s resident school district when either of the
following occurs:
(a) The student with a disability sleeps, keeps personal effects, and regularly lodges
in a school district other than the school district in which a parent resides, for an educational
purpose, not for the purpose of securing a suitable home.
(b) The student with a disability is lodged in a school district other than the school
district in which a parent resides as directed by an agency or institution under the auspices of
a court, the department of community health, or the family independence agency in a facility
such as a private home, group home, or a private or public institution.
(2) Both of the following situations are exceptions to the provisions of subrule (1) of
this rule:
(a) If a guardian has been appointed to provide the student with a disability with a
suitable education, then the student is a resident of the school district in which the guardian
resides.
(b) If the student with a disability is under the control or custody of the family
division of circuit court and is a ward of the state, has no living parent or guardian, or the
parents reside out of the state, then the student is a resident of the school district in which the
family division of circuit court is located.
(3) A student with a disability who is not covered in subrule (1) or (2) of this rule is a
resident of the school district in which the student habitually sleeps, keeps personal effects,
and has a regular place of lodging for the purpose of securing a suitable home and not solely
for an educational purpose.
(4) Notwithstanding the provisions of subrules (1), (2), and (3) of this rule, all of the
following provisions apply when the student with a disability is placed under the order or
direction of a court or child placement agency and is lodged in a state institution, licensed
foster home, licensed nursing home, or licensed group residential facility:
(a) The school district in which the institution, home, or facility is located shall
provide for the delivery of special education programs and services to the student with a
disability under section 1751 of 1976 PA 451, MCL 380.1751.
(b) The student with a disability shall be deemed to be a resident of the school
district for the purpose of record maintenance required by 1976 PA 451, MCL 380.1757.
(c) For all other purposes, including funding, the student’s residence shall be
determined under subrules (1), (2), and (3) of this rule.
(5) If a disagreement occurs between 2 or more school districts as to the residency of a
student with a disability, then all of the following procedures apply:
(a) Notice shall be sent to the department by a school district involved. The notice
shall include all of the following information:
(i) The names of all of the school districts alleged as a resident school
district.
(ii) The name of the student involved.
(iii) The name and address of the parent or guardian, or address of the student
if the student is over 18 years of age.
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(b) The department or its representative shall immediately notify the school
districts involved and the parent, guardian, or student of the receipt of notice of
disagreement.
(c) Within 7 calendar days of receipt of notice from the department, all parties shall
provide the department with a written statement of their position and supporting facts.
(d) Within 14 calendar days of the receipt of a notice of a disagreement from a
school district, the department shall investigate the matter, consider information received
from the parties involved, and make a determination as to the residency of the student. A
copy of the determination shall be immediately sent to each party involved.
(e) Upon a written demonstration of just cause by any party involved, the state
board of education or its designee may extend the time limits set forth in this subrule.
R 340.1733 Program and service requirements; effective dates.
Rule 33. An intermediate school district, local school district, public school academy,
and any other agency shall adhere to all of the following general requirements for all
programs and services for students with disabilities:
(a) Special education classrooms or areas where related services are provided shall have
at least the same average number of square feet per student, light, ventilation, and heat
conditions as provided for general education students in the school district.
(b) Programs for students with severe cognitive impairment and severe multiple
impairments which have students under 16 years of age shall not exceed a 6-year age span at
any one time.
(c) All other special education programs which have students under 16 years of age and
which are operated in separate facilities shall not exceed a 4-year age span at any one time.
(d) The age span for students who are assigned to special education programs, except
for programs for students with severe cognitive impairment and severe multiple impairments,
operated in elementary buildings attended by children who are nondisabled, shall not exceed,
at any one time, a 6-year age span or the age span of the students who are nondisabled in the
building, whichever is less.
(e) The age span for students who are assigned to special education programs, except
for programs for students with severe cognitive impairment and severe multiple impairments,
operated in secondary buildings attended by students who are nondisabled, shall not exceed,
at any one time, the age span of the students who are nondisabled in the building, except in
high school buildings where students up to 26 years of age may be served. The term
“nondisabled” shall not include persons participating in adult education programs.
(f) Programs for students with severe cognitive impairment, severe multiple
impairments, and moderate cognitive impairment shall comply with subdivisions (a), (b), (c),
(d), and (e) of this rule unless a program is operated in accordance with an approved
intermediate school district plan where, due to the low incidence of eligible students,
expanded age ranges may be necessary for programmatic feasibility and meeting the needs of
students.
(g) Students with disabilities qualifying for special education programs and services
shall be provided with supplies and equipment at least equal to those provided to other
students in general education programs, in addition to those supplies and equipment
necessary to implement a student’s individualized education program.
(h) Intermediate school districts, local school districts, public school academies, or a
combination of such agencies in cooperation with public and private entities, shall provide or
contract for the provision of transition services. Special education teachers shall be assigned
to supervise such services. Professional special education personnel, a transition coordinator,
or both, shall coordinate transition services.
(i) For worksite-based learning, a written agreement/plan is required and shall be signed
by the student, parent, school, and worksite representative. The agreement shall set forth all
of the following information:
(i) Expectations and standards of attainment.
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(ii) Job activities.
(iii) Time and duration of the program.
(iv) Wages to be paid to the student, if applicable.
(v) Related instruction, if applicable.
The superintendent of the school district shall designate a staff member to visit the student’s
worksite at least once every 30 calendar days for the duration of the program to check
attendance and student progress and assess the placement in terms of health, safety, and
welfare of the student.
(j) Substitute instructional aides specified in R 340.1738, R 340.1739, and R 340.1748
shall be provided when assigned instructional aides are absent. In addition, teacher aides
specified in R 340.1739 and R 340.1740 shall be provided when assigned teacher aides are
absent.
(k) Secondary special education teachers shall teach either special education courses
approved for graduation by the local education agency or special education courses within an
approved special education curriculum.
R 340.1734 Deviations from rules.
Rule 34. (1) A deviation from these rules shall follow board-approved procedures and be
requested, in writing, from the state board of education or its designee by an intermediate
school district, local school district, or public school academy that operates or contracts for
special education programs and services. A copy of the request shall be filed concurrently
with the intermediate school district in which affected students with disabilities reside and all
local constituent school districts in which the affected students with disabilities reside. A
copy of the request shall be filed concurrently with the parent advisory committee of the
intermediate school district that requests the deviation and the parent advisory committee of
any intermediate school district in which affected students with disabilities reside.
(2) Within 7 days of receipt of the request, the intermediate school district shall review
and inquire into the request and shall file, with the department, its position regarding the
appropriateness of the request and its objections to, or endorsement of, the request, together
with the rationale regarding its position.
(3) The state board of education or its designee shall initiate action within 30 calendar
days of receipt of the request. The board or its designee may grant the request, in writing, for
a period not to extend beyond the end of the current school year and upon such terms and
conditions as it shall specify only when, in its judgment, the best interests of the students
with disabilities affected by the deviation are served and good cause is shown.
(4) A deviation shall not be granted when the intent of the deviation is to exclude a
student with a disability from, or deny a student with a disability participation in, a special
education program or service that is required.
(5) A program deviation that is granted by the state board of education or its designee is
public information. The affected intermediate school districts, constituent local school
districts, or public school academies shall inform their involved personnel of granted
deviations in any manner they deem appropriate. At a minimum, the parent advisory
committee shall be informed of the disposition of the request.
(6) A deviation shall not be requested for the purpose of avoiding or postponing
corrections directed by the department under part 8 of these rules.
(7) If a final decision to deny a deviation request is made, then the school district that
makes the request shall correct the condition that precipitated the request and shall forward to
the department, office of special education and early intervention services, within 30 school
days of the denial, its assurance that the matter is now in compliance with the respective rule.
(8) Nothing in this rule or any other provision of statute or regulation shall permit the
state board of education to waive any of the requirements of Part B of the individuals with
disabilities education act, as amended, 20 U.S.C. §1400 et seq.
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R 340.1738 Programs for students with severe cognitive impairment.
Rule 38. Programs for students with severe cognitive impairment shall be operated as
follows:
(a) There shall be 1 teacher and 2 instructional aides for a maximum of 12 students. The
maximum number of students may be extended to 15 if an additional instructional aide is
assigned with the placement of the thirteenth student. At least 1 full-time teacher and 1 fulltime
aide shall be employed in every program for students with severe cognitive impairment.
(b) Programs for students with severe cognitive impairment shall consist of a minimum
of 230 days and 1,150 clock hours of instruction. The first 5 days when pupil instruction is
not provided because of conditions not within the control of school authorities, such as
severe storms, fires, epidemics, or health conditions as defined by the city, county, or state
health authorities, shall be counted as days of pupil instruction. Subsequent days shall not be
counted as days of pupil instruction.
(c) Teachers shall be responsible for the instructional program and shall coordinate the
activities of aides and supportive professional personnel.
(d) Instructional aides shall work under the supervision of the teacher and assist in the
student’s daily training program.
(e) Program assistants may assist the teacher and the instructional aides in the feeding,
lifting, and individualized care of students with severe cognitive impairment.
(f) A registered nurse shall be reasonably available.
R 340.1739 Programs for students with moderate cognitive impairment.
Rule 39. Programs for students with moderate cognitive impairment shall be operated as
follows:
(a) There shall be 1 teacher and 1 teacher aide for a maximum of 15 students.
(b) There shall be 1 lead teacher and a maximum of 3 instructional aides for a maximum
of 30 students, with not more than 10 students for each aide.
R 340.1740 Programs for students with mild cognitive impairment.
Rule 40. Programs for students with mild cognitive impairment shall be operated as
follows:
(a) Elementary programs for students with mild cognitive impairment shall serve not
more than 15 different students. When an elementary program for students with mild
cognitive impairment has 12 or more students in the room at one time, an aide shall be
assigned to the program.
(b) Secondary programs for students with mild cognitive impairment shall have not
more than 15 different students in the classroom at any one time and the teacher shall be
responsible for the educational programming for not more than 15 different students.
R 340.1741 Programs for students with emotional impairment.
Rule 41. Programs for students with emotional impairment shall have not more than 10
students in the classroom at any one time, and the teacher shall be responsible for the
educational programming for not more than 15 different students.
R 340.1742 Programs for students with hearing impairment.
Rule 42. Programs and services for students with hearing impairment shall be operated as
follows:
(a) A special class with l teacher shall have an enrollment of not more than 7 students.
(b) Group amplification devices deemed necessary for instruction by the individualized
education program team shall be provided. The public agency shall ensure that the
amplification devices worn by hearing impaired children in school are functioning properly.
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R 340.1743 Programs for students with visual impairment.
Rule 43. Programs and services for students with visual impairment shall be determined
by the severity and multiplicity of the impairments. A special class with 1 teacher shall have
an enrollment of not more than the equivalent of 8 full-time students, and the teacher shall be
responsible for the educational programming for not more than 10 different students. The
public agency shall ensure that low vision aids, excluding prescription eye glasses, are
available and functioning properly.
R 340.1744 Programs for students with physical impairment or other health
impairment.
Rule 44. (1) Programs for students with physical impairment or other health impairment
shall have not more than 10 students in the classroom at any one time, and the teacher shall
be responsible for the educational programming for not more than 15 different students.
(2) Special classroom units serving students with physical or other health impairment
shall provide not less than 60 square feet of floor space per person.
R 340.1745 Services for students with speech and language impairment.
Rule 45. All of the following provisions are specific requirements for speech and
language services:
(a) The speech and language services provided by an authorized provider of speech and
language services shall be based on the needs of a student with a disability as determined by
the individualized education program team after reviewing a diagnostic report provided by an
authorized provider of speech and language services.
(b) The determination of caseload size for an authorized provider of speech and
language services shall be made by the authorized provider of speech and language services
in cooperation with the district director of special education, or his or her designee, and the
building principal or principals of the school or schools in which the students are enrolled.
Caseload size shall be based upon the severity and multiplicity of the disabilities and the
extent of the service defined in the collective individualized education programs of the
students to be served, allowing time for all of the following:
(i) Diagnostics.
(ii) Report writing.
(iii) Consulting with parents and teachers.
(iv) Individualized education program team meetings.
(v) Travel.
(c) Individual caseloads of authorized providers of speech and language services shall
not exceed 60 different persons and shall be adjusted based on factors identified in
subdivision (b) of this rule. Students being evaluated shall be counted as part of the caseload.
(d) An authorized provider of speech and language impaired services shall be either a
teacher of students with speech and language impairment under R 340.1781, R 340.1782,
and R 340.1796, or a person with a master’s degree, as qualified under R 340.1792.
R 340.1746 Homebound and hospitalized services.
Rule 46. Specific requirements for homebound and hospitalized services are as follows:
(a) Homebound services shall be initiated within 15 school days after verification, by a
licensed physician, of a medical impairment which requires the eligible special education
student to be confined to the home. Such verification shall indicate the anticipated duration
of the required confinement.
(b) Hospital service shall be provided for eligible special education students who cannot
attend school because of hospitalization for a physical or medical impairment. These services
shall be initiated when determined medically feasible.
(c) A special education teacher employed for homebound or hospital services, or for a
combination of these services, shall be assigned not more than 12 students at any one time.
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(d) Progress reports for each person shall be recorded pursuant to the intermediate
school district plan.
(e) Students receiving homebound or hospital services shall receive a minimum of 2
nonconsecutive hours of instruction per week. Related services personnel may supplement,
but not substitute for, the teacher’s instruction.
(f) It is the responsibility of the district in which the hospital is located to make
homebound and hospital services available to eligible students. If the student is hospitalized
outside of the district of residence, the district of residence is responsible for delivering
services or for contracting with the operating district and making payment for the services.
(g) Homebound and hospitalized services shall not be substituted for special education
programs. Rather, the service provider shall endeavor, to the extent appropriate, to present
curricular experiences which are being provided in the program where the student is
currently enrolled.
R 340.1747 Programs for students with specific learning disabilities.
Rule 47. Programs for students with specific learning disabilities shall have not more
than 10 students in the classroom at any one time, and the teacher shall be responsible for the
educational programming for not more than 15 different students.
R 340.1748 Programs for students with severe multiple impairments.
Rule 48. (1) Programs and services for students with severe multiple impairments shall
consist of at least 1 teacher and 2 instructional aides for a maximum of 9 students. At least 1
full-time teacher and 1 full-time aide shall be employed in every program for students with
severe multiple impairments.
(2) Programs for students with severe multiple impairments shall consist of a minimum
of 230 days and 1,150 clock hours of instruction. The first 5 days when pupil instruction is
not provided because of conditions not within the control of school authorities, such as
severe storms, fires, epidemics, or health conditions as defined by the city, county, or state
health authorities, shall be counted as days of pupil instruction. Subsequent days shall not be
counted as days of pupil instruction.
(3) A registered nurse shall be reasonably available.
R 340.1749 Teacher consultant; caseload; responsibilities.
Rule 49. (1) The teacher consultant for special education shall do 1 or more of the
following:
(a) Provide instructional services to students who are enrolled in special education
programs. Instructional services are supportive of the special education teacher. A teacher
consultant shall not grade, give credit for, or teach a general education or a special education
subject, class, or course.
(b) Provide instructional services to a student whose disability is such that the
student may be educated effectively within a general education classroom if this service is
provided to the student. Instructional services are supportive of the general education teacher.
The teacher consultant shall not grade, give credit for, or teach a general education subject,
class, or course.
(c) Provide consultation to education personnel on behalf of students with
disabilities on the consultant’s caseload.
(d) Work as a member of a multidisciplinary evaluation team to assist in the
evaluation of the educational needs of persons suspected of being disabled.
(2) The teacher consultant shall carry an active caseload of not more than 25 students
with disabilities. All students served under this rule shall be counted as part of the caseload.
In establishing the caseload, consideration shall be given to time for all of the following:
(a) Instructional services.
(b) Evaluation.
(c) Consultation with special and general education personnel.
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(d) Report writing.
(e) Travel.
(3) The teacher consultant shall not serve in supervisory or administrative roles.
R 340.1749a Elementary level resource program.
Rule 49a. (1) A special education elementary level resource program may be provided by
a special education teacher.
(2) The elementary resource teacher shall serve not more than 10 students at any one
time and not more than 18 different students and shall do either or both of the following:
(a) Provide direct instruction to students on the resource teacher’s caseload and
may assign grades or other evaluative measures for this instruction.
(b) Provide support to the general education classroom teachers to whom special
education students on the resource teacher’s caseload have been assigned. Time shall be
allocated to the resource teacher to carry out this responsibility.
(3) The elementary resource teacher may provide supplemental instruction to students
on his or her caseload.
(4) The elementary resource teacher may evaluate general education students within the
same building who are suspected of having a disability and, therefore, may serve on the
initial multidisciplinary evaluation team. The resource teacher shall be responsible for the
evaluation of not more than 2 students at one time. Time shall be allocated to the resource
teacher to carry out this responsibility.
(5) If the special education teacher to whom the student is assigned does not have an
endorsement in the area which matches the student’s disability, the individualized
educational planning committee shall determine if a teacher consultant with such credentials
is needed to provide consultation, resources, and support services to the resource teacher.
R 340.1749b Secondary level resource program.
Rule 49b. (1) A special education secondary level resource program may be provided by
a special education teacher.
(2) A secondary resource teacher shall serve not more than 10 students at any one time
and have a caseload of not more than 20 different students and shall do either or both of the
following:
(a) Provide direct instruction for special education courses approved for graduation
by the local educational agency. The teacher may assign grades or other evaluative measures
for this instruction.
(b) Provide support to the general education classroom teachers to whom special
education students on the resource room teacher’s caseload have been assigned. Time shall
be allocated to the resource teacher to carry out this responsibility.
(3) The secondary resource teacher may provide supplemental instruction to students on
his or her caseload who are enrolled in general education classes. The teacher shall not teach
a class and offer tutorial assistance at the same time.
(4) If the special education teacher to whom the student is assigned does not have an
endorsement in the area which matches the student’s disability, the individualized
educational planning committee shall determine if a teacher consultant with such credentials
is needed to provide consultation, resources, and support services to the resource teacher.
R 340.1749c Departmentalization of special education programs.
Rule 49c. (1) A school with more than 1 special education teacher may departmentalize.
(2) Each teacher shall teach only 1 local education agency approved special education
course per period.
(3) Each teacher may serve more than the students assigned to his or her caseload;
however, the total number of students served cannot exceed the combined caseloads of the
participating teachers.
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(4) Each teacher shall serve not more than an average of 10 students per class period per
instructional day.
R 340.1750 Director of special education.
Rule 50. (1) Local school districts or public school academies may employ, or contract
for the services of, a not less than half-time director of special education under the
intermediate school district plan.
(2) Each intermediate school district shall employ, or contract for the services of, a fulltime
director of special education.
R 340.1751 Supervisor of special education.
Rule 51. (1) A local school district, public school academy, or intermediate school
district may employ a supervisor of special education instructional programs. The person
shall be employed not less than half-time.
R 340.1754 Early childhood special education programs.
Rule 54. All of the following provisions are specific requirements for early childhood
special education programs for young children with disabilities or developmental delay:
(a) An early childhood special education program with an approved early childhood
special education teacher may be provided to young children with disabilities or
developmental delay who are 2 1/2 through 5 years of age based upon the child’s individual
needs as specified by the individualized education program team. Early childhood special
education programs may include children under 2 1/2 years of age as specified by the
individualized education program team.
(b) The program shall be available for a minimum of 360 clock hours and 144 days of
instruction. If a preschool-aged child with a disability or developmental delay is placed in a
nonspecial education program, then the individualized education program team shall
consider the need for consultation by an early childhood special education teacher.
(c) The program shall have not more than 12 students for 1 teacher and 1 aide at any
one time, and the teacher shall have responsibility for the educational programming for not
more than 24 different students.
(d) Early childhood special education programs shall have a parent participation and
education component.
R 340.1755 Early childhood special education services.
Rule 55. All of the following provisions are specific requirements for early childhood
special education services for young children with disabilities or developmental delay in
family and community settings:
(a) Services shall be provided by an approved early childhood special education teacher
or approved related services staff to young children birth through age 5 based upon the
child’s individual needs as specified by the individualized education program or the
combined individualized education/family service plan, as appropriate. Approved related
services staff shall work under the supervision of an approved early childhood special
education teacher.
(b) Services shall be provided for a minimum of 2 hours per week, but not less than 72
clock hours within 180 school days. Services may be provided in appropriate early childhood
community or family settings.
(c) Early childhood special education services shall have a parent participation and
education component.
R 340.1756 Programs for students with severe language impairment.
Rule 56. (1) A public agency may establish programs for students with severe language
impairment. Specific requirements for these programs are as follows:
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(a) A program for students with severe language impairment conducted by a
teacher of programs for students with speech and language impairment shall serve only
young children with disabilities or developmental delay or elementary students with severe
language impairment.
(b) The program shall have not more than 10 students or young children with
speech and language impairment in the classroom at any one time, and the teacher shall have
responsibility for the educational programming for not more than 15 different children.
(2) Students or young children with speech and language impairment eligible for this
program are those with a severe disability in the comprehension or expression of language as
determined through the manifestation of all of the following characteristics which adversely
affects educational performance:
(a) Demonstration of functioning within or above normal intellectual potential as
measured by instruments that do not rely exclusively on oral direction or oral expression.
(b) Test results on not less than 2 standardized assessment instruments or 2 subtests
designed to determine language functioning which clearly show language functioning not
appropriate for the child’s mental age.
(c) Oral language at less than the expected level based on the child’s mental age in
not less than 2 of the following areas:
(i) Phonology.
(ii) Morphology.
(iii) Syntax.
(iv) Semantics.
(v) Pragmatics.
(3) The programs for students with severe language impairment are not designed for
children whose language impairment is primarily the result of autism or cognitive, emotional,
hearing, visual, physical, or other health impairments as defined in part 1 of these rules.
R 340.1757 Other related educational services for students placed in juvenile detention
facilities.
Rule 57. All of the following provisions are specific requirements for educational
services conducted for students placed in juvenile detention facilities:
(a) Programs shall be initiated within 5 calendar days after admission. If a student
placed in a juvenile detention facility is suspected of having a disability, then the procedure
outlined in part 2 of these rules shall be immediately followed.
(b) Notification of educational placement shall be sent to the superintendent of the
district of residence within 5 school days after the date of entry of a student into the
educational program in a juvenile detention facility.
(c) Education reports for each student educated in a juvenile detention facility shall be
sent by certified mail to the superintendent of the district of residence, with the consent of the
parent, within 5 school days from the date of release from the facility.
(d) Special education reimbursed personnel may provide educational services for
students who do not have disabilities and who are placed in the facility, if the programs
comply with both of the following provisions:
(i) They are under the supervision of a teacher approved in the area of emotional
impairment.
(ii) They have not more than 10 students in a class at any one time.
R 340.1758 Programs for students with autism.
Rule 58. (1) Specific requirements for programs for students with autism shall be
provided using either of the following alternatives:
(a) Programs that consist of 1 classroom program for students with autism shall not
have more than 5 students and shall be served by a teacher of students with autism. However,
programs that consist of more than 1 classroom may have more than 5 students in a
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classroom, if the average student-to-teacher-and-aide ratio does not exceed 5 students to 1
teacher and 1 aide. A classroom with 3 or more students shall have 1 aide.
(b) A special education program described in the intermediate school district plan
set forth in R 340.1832(d) and approved by the state board of education that assures the
provision of educational programming for students with autism.
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PART 4.
QUALIFICATIONS OF DIRECTORS AND SUPERVISORS
R 340.1771 Director of special education; education and experience requirements.
Rule 71. (1) For full approval, a director of special education shall possess all of the
following minimum qualifications:
(a) An earned master’s degree or equivalent.
(b) Full approval in at least 1 area of special education.
(c) Three years of successful professional practice or administrative experience in
special education, or a combination of practice and experience.
(d) Thirty semester or equivalent hours of graduate credit and a successful 200-
clock-hour practicum in special education administration. Graduate credit shall be earned in
a college or university whose program has been approved by the state board of education and
shall be distributed appropriately to assure knowledge and competency as related to special
education in all of the following areas:
(i) Program development and evaluation.
(ii) Personnel staffing, supervision, and evaluation.
(iii) Interpersonal relationships, communications, persuasion, and morale.
(iv) Evaluation of inservice organization and management.
(v) Budgeting, financing, and reporting.
(vi) Parent relationships.
(vii) School plant planning.
(viii) Consultation.
(ix) Research and grant writing.
(x) Office management, including office automation.
(xi) School-related legal activities and due process hearing.
(xii) Computer-assisted management.
(e) One year of successful experience as a special education director in an approved
special education program.
(f) Verification from a college or university approved for the preparation of special
education directors which attests that the person has acquired the knowledge and
competencies in subdivision (d) of this subrule and has demonstrated leadership ability and
general knowledge of issues and problems in all disability areas of special education.
(2) A director of special education programs who has full approval status shall maintain
full approval status indefinitely.
(3) For temporary approval, a director of special education shall possess all of the
following minimum qualifications:
(a) An earned master’s degree or equivalent.
(b) Full approval in at least 1 area of special education.
(c) Three years of successful professional practice or administrative experience in
education, or a combination of practice and experience.
(d) Twelve semester or equivalent hours of graduate credit and a successful 200-
clock-hour practicum in special education administration. Graduate credit shall be earned in
a college or university whose program has been approved by the state board of education and
shall be distributed appropriately to assure knowledge and competency related to special
education in the areas designated in subrule (1)(d) of this rule.
(e) The college or university approved for the preparation of special education
directors shall verify enrollment in the director of special education preparation program and
the completion of the practicum specified in subdivision (d) of this subrule.
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(4) Continuation of temporary approval is dependent upon the satisfactory completion
of not less than 6 semester or equivalent hours of required credit toward full approval before
the beginning of the next school year.
(5) Any person who has completed all course work and practicum requirements in effect
before the effective date of these rules shall only be required to complete 1 year of successful
experience as a director to gain full approval.
R 340.1772 Supervisor of special education; education and experience requirements.
Rule 72. (1) For full approval, a supervisor of special education shall possess all of the
following minimum qualifications:
(a) An earned master’s degree or equivalent.
(b) Full approval in at least 1 area of special education.
(c) Three years of successful experience in special education.
(d) Twelve semester or equivalent hours of graduate credit in a college or
university whose program has been approved by the state board of education. Graduate credit
shall be distributed appropriately to assure knowledge and competency as related to special
education in all of the following areas:
(i) Systematic study of curriculum.
(ii) Administrative and supervisory procedures.
(iii) Evaluation methods and procedures.
(iv) Communication skills techniques.
(v) Inservice education.
(vi) Computer-aided instruction.
(e) One year of successful experience as a supervisor of special education in an
approved special education program.
(f) Verification from a college or university approved for the preparation of special
education supervisors relative to leadership, knowledge, and competency in the areas listed
in subdivision (d) of this subrule.
(2) A supervisor of special education programs who has full approval status shall
maintain full approval status indefinitely.
(3) For temporary approval, a supervisor of special education shall possess all of the
following minimum qualifications:
(a) An earned master’s degree or equivalent.
(b) Full approval in at least 1 area of special education.
(c) Three years of successful experience in special education.
(d) Verification from a college or university approved by the state board of
education for preparation of special education supervisors of enrollment in the supervisor of
special education program.
(4) Continuation of temporary approval is dependent upon the satisfactory completion
of not less than 6 semester or equivalent hours of required credit toward full approval before
the beginning of the next school year.
(5) Any person who has completed all course work and practicum requirements in effect
before the effective date of these rules shall only be required to complete 1 year of successful
experience as a supervisor to gain full approval.
R 340.1774 Out-of-state applicants for supervisor or director; temporary approval.
Rule 74. An applicant for temporary approval as a supervisor or director of special
education who has been educated in another state shall present evidence of fulfilling all of
the requirements established for applicants who have been educated in approved Michigan
colleges and universities. The department shall establish procedures for the temporary
approval of out-of-state applicants as supervisors or directors of special education.
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PART 5.
QUALIFICATIONS OF TEACHERS AND OTHER PERSONNEL
R 340.1781 Teachers of students with disabilities; endorsement requirements.
Rule 81. (1) A teacher seeking an endorsement or full approval by the state board of
education or its designee shall meet all of the following general skill requirements, in
conjunction with those of R 340.1782 to R 340.1788, R 340.1795 to R 340.1797, and
R 340.1799 to R 340.1799d, before being employed by an intermediate school district, local
school district, public school academy, or other agency operating special education programs
and services:
(a) Theoretical foundations as follows:
(i) Understanding of human growth and development, which shall include all
of the following:
(A) Typical and atypical development.
(B) Stages from conception to death.
(C) Affective, language, cognitive, and sensorimotor areas.
(D) Factors influencing development, including physiological, social,
physical environment, and psychological.
(ii) Understanding of learning and teaching theories.
(iii) Knowledge of construction, interpretation, application, and limitation of
standardized and nonstandardized assessment procedures.
(iv) Knowledge of disabilities and their educational implications.
(b) Curriculum and instruction as follows:
(i) Understanding of curriculum design and instructional strategies.
(ii) Understanding of, and ability to adapt to, general and special curriculum
and instructional strategies to meet individual learning styles.
(c) Special education instructional systems as follows:
(i) Knowledge of program delivery systems, including all levels of service.
(ii) Understanding of individual and group management structures.
(iii) Understanding of effective use of school and outside resources in creating
a positive learning environment.
(iv) Understanding a variety of systems for reporting and evaluating the
effectiveness of an individual student’s program.
(v) Understanding of the child study/team planning process.
(vi) Ability to translate comprehensive assessment data reflecting the student’s
current level of functioning into an individualized education program.
(vii) Understanding of how adaptive technology may be used to enhance the
education of students with disabilities.
(d) Communication/consultation as follows:
(i) Knowledge of institutional and administrative factors that facilitate or
impede delivery of services.
(ii) Ability to effectively communicate the needs and rights of students with
disabilities.
(iii) Ability to use interpersonal skills when working with parents,
professionals, agencies, students, and other persons or groups.
(iv) Understanding the roles and organizational structures of general and
special education and the part they play in providing total service for the student.
(v) Ability to serve in a consultative capacity with individuals and groups,
including parents and students.
(vi) Ability to supervise and work with teacher aides, volunteers, and
paraprofessionals.
(e) Organizational, historical, and legal factors as follows:
52
(i) Knowledge of state and federal laws, rules, and regulations.
(ii) Understanding of due process and data privacy requirements.
(iii) Knowledge of historical and philosophical background of the education of
students with disabilities and knowledge of attitudes toward students with disabilities.
(iv) Understanding of how to identify and access resources relevant to students
with disabilities.
(f) Abilities basic to all special education preparation as follows:
(i) Ability to observe, analyze, and describe the instructional strategies being
applied in an educational situation.
(ii) Ability to function as a member of a team in designing appropriate
educational programs for students with disabilities.
(iii) Ability to apply team-designed strategies in an educational setting.
(iv) Ability to design and apply instructional strategies in an educational
setting, including time management techniques.
(v) Ability to identify and use nonschool resources relevant to students with
disabilities.
(vi) Ability to assess results of instruction.
(vii) Understanding of personal adjustment, prevocational and vocational
needs, and opportunity for students with disabilities.
(viii) Ability to understand basic behavioral management concepts and
demonstrate ability to develop, implement, and incorporate appropriate behavioral
management techniques.
(ix) Understanding of preadolescent behavior.
(x) Understanding of adolescent behavior.
R 340.1782 Endorsed teachers of students with disabilities; additional requirements.
Rule 82. An endorsed teacher of students with disabilities, in addition to meeting the
specific requirements set forth in R 340.1786 to R 340.1788, R 340.1795 to R 340.1797, and
R 340.1799 to R 340.1799c, shall comply with all of the following requirements:
(a) Possess a valid Michigan teacher’s certificate.
(b) Possess a baccalaureate degree with a major in a specific special education area or
have earned credit in course work equivalent to that required for a major.
(c) Possess an endorsement in special education that is valid in grades kindergarten
through 12. Elementary or secondary endorsements in special education, earned after
September 1, 1990, shall be valid in grades kindergarten through 12.
(d) Have completed not less than 8 weeks of directed student teaching in the specific
area of impairment. Not less than a 180-hour practicum in the specific area of impairment is
required for each additional endorsement.
(e) Be recommended for a certificate or endorsement, or both, in a specific special
education area by an institution of higher education or the department signifying verification
of completion of a teacher education program for the specific special education area, as
approved by the state board of education. The recommendation shall verify that the teacher
possesses all of the following in addition to having completed course work that includes the
general skill requirements listed in R 340.1781:
(i) Personal maturity.
(ii) Emotional stability.
(iii) Ability to teach.
(iv) Other leadership capacities.
(v) Apparent potential for growth in creative teaching.
(f) On the effective date of these rules, persons approved as special education teachers
under this rule, teacher consultants under R 340.1790, and teachers of preprimary-aged
students under R 340.1795 shall maintain and continue to have their full approval status.
53
R 340.1783 Temporarily approved teachers of students with disabilities.
Rule 83. Under procedures established by the department, the department may grant
temporary approval as a teacher of students with disabilities to persons who hold a valid
Michigan teaching certificate. The employing superintendent shall certify that the district
conducted a search for fully qualified personnel and that no certified teacher who holds full
approval or endorsement for the position was available at the time of the assignment.
Continuation of temporary approval shall be dependent upon the satisfactory completion of
not less than 6 semester or equivalent hours of required credit toward full approval between
August 31 of the current school year and September 1 of the next school year that the teacher
is employed. The school district is not required to conduct a search for a fully qualified
teacher in successive school years if the candidate meets these requirements. The school
district is not required to remove a teacher under temporary or continuing approval when a
fully approved or endorsed teacher becomes available.
R 340.1783a Early childhood special education teacher, full year permit.
Rule 83a. (1) The department may issue a permit when a properly certificated teacher,
under R 340.1795, is unavailable for a regular teaching assignment for children with
disabilities or developmental delay, as defined in R 340.1711.
(2) An application for a permit shall contain evidence that the candidate has a
baccalaureate degree or higher, including 15 semester or equivalent hours of appropriate
professional education credit.
(3) The permit is effective through June 30 of the school year for which the permit is
issued.
R 340.1786 Teachers of students with cognitive impairment; special requirements.
Rule 86. (1) The teacher education program for teachers of students with cognitive
impairment shall include a minimum of 30 semester or equivalent hours. The teacher
education program for teachers of students with cognitive impairment shall include all of the
following:
(a) A minimum of 12 semester or equivalent hours of special skills and knowledge
necessary for working with students with cognitive impairment, including all of the
following:
(i) The nature of cognitive impairment.
(ii) Differential curriculum development and teaching techniques.
(iii) Basic components of language development.
(iv) The basic sensory-neural system and its relationship to learning and
development.
(v) Classroom management techniques.
(b) A minimum addition of 10 semester or equivalent hours in the development of
competency in the following areas:
(i) Ability to observe and assess students, including all of the following:
(A) The nature of mental deficiency.
(B) Differential curriculum.
(C) Development and teaching techniques.
(D) Basic components of language development.
(E) The basic sensory-neural system and its relationship to learning and
development.
(F) Classroom management techniques.
(ii) Ability to provide instruction and guidance to students with cognitive
impairment in all of the following areas:
(A) Self-help skills.
(B) Prevocational and vocational skill training.
(C) Recreation and leisure activities.
54
(iii) Ability to understand physical, sensory, and health-related problems and
their impact on learning and development, including the understanding and appropriate use
of medical information.
(iv) Ability to guide and counsel students with cognitive impairment regarding
all of the following:
(A) Human sexuality.
(B) Home, family, and community living.
(C) Use of local, state, and national resources.
(v) Ability to understand and utilize basic behavioral management concepts
and techniques to meet the unique needs of students with cognitive impairment.
(vi) Ability to organize and manage an educational environment and schedule
for a group of students with cognitive impairment, including the understanding of the
functions and role of the teacher as educational team leader and the role and function of
related services personnel and aides.
(vii) Ability to instruct and reinforce a program of communication skills and
techniques, both verbal and nonverbal, as deemed appropriate for the student.
(viii) Ability to utilize community resources and a variety of community
settings and activities in the planning and implementation of an educational program for a
student with cognitive impairment.
(2) A teacher with an endorsement in mentally impaired is qualified to teach students
with cognitive impairment.
R 340.1787 Teachers of students with emotional impairment; special requirements.
Rule 87. The teacher education program for teachers of students with emotional
impairment shall include 30 semester or equivalent hours in all of the following areas:
(a) Four to 6 semester or equivalent hours of child growth and learning theory,
including dynamics of human behavior, individual differences, adolescent psychology,
learning theory, and psychological information, both individual and group.
(b) Four to 6 semester or equivalent hours of environmental information, including
sociological, cultural, economic information; special services and guidance programs in the
school and community; organization of the school; characteristics of groups; and social
organization and structure.
(c) Six to 10 semester or equivalent hours of educational and special methods, including
education of students with special problems, theory and methods of teaching social skills and
students with emotional impairment, reading methods, instructional materials, and creative
and other activities especially adapted to the education of students with psychological and
physiological learning difficulties.
(d) Six to 12 semester or equivalent hours of special skills and techniques in all of the
following areas:
(i) Understanding personality deviation, including abnormal psychology.
(ii) Theory of maladjustment.
(iii) Counseling and interview techniques.
(iv) Interpretation of psychological data.
(v) Work in parent counseling.
(e) Six to 10 semester or equivalent hours of application and experience, including
supervised observation, with students with emotional impairment, a seminar in
interdisciplinary approach, group dynamics, and interpretation of psychiatric techniques.
(f) Two to 4 semester or equivalent hours in evaluation and research methods.
R 340.1788 Teachers of students with learning disabilities; special requirements.
Rule 88. The teacher education program for teachers of students with learning disabilities
shall include a minimum of 30 semester or equivalent hours relating to all of the following
areas:
55
(a) Four semester or equivalent hours of child growth and learning theory, including
dynamics of human behavior, individual differences, adolescent or child psychology,
learning theory, and psychological information.
(b) Six semester or equivalent hours of special skills and techniques in understanding
learning problems, including development of language as it relates to reasoning, thinking,
speaking, reading, writing, and spelling; remediation techniques for auditory and visual
discrimination problems; development of perceptual skills; and understanding the dynamics
of student-teacher relationships, environment, and program planning.
(c) Six semester or equivalent hours in the development of competence in all of the
following areas:
(i) Ability to carry out suitable procedures for assessment of the student’s listening,
thinking, talking, reading, spelling, writing, arithmetic, or other skill deficiencies.
(ii) Ability to specify, in behavioral terms, instructional objectives that are
appropriate to the skill needs and entry level characteristics of the individual student.
(iii) Ability to select systems of instruction and learning conditions that are likely to
be most effective for ameliorating the learning disabilities presented by each student.
(iv) Ability to set up and maintain conditions and procedures of instruction suitable
to the learning goals set for the individual student.
(v) Ability to assess instructional outcomes in terms of the student’s behavior
change and use this data in formulation of an ongoing instructional plan adjusted to changed
student conditions.
(vi) Ability to use appropriate techniques with the student to help develop the selfmanagement
skills required for constructive social participation and independent learning.
(vii) Ability to function as a member of interdisciplinary teams and maintain
effective liaison with parents and others working with the student.
R 340.1790 Teacher consultants for students with disabilities.
Rule 90. In addition to meeting all of the requirements of R 340.1782, a teacher
consultant shall meet all of the following requirements for full approval by the state board of
education or its designee:
(a) Possess a master’s degree in education or a field of study related to special
education.
(b) Recommendation to the department by the employing superintendent, or his or her
designee, for approval as a teacher consultant.
(c) Show evidence of a minimum of 3 years of satisfactory teaching experience, not less
than 2 years of which shall be teaching in a special education program.
R 340.1792 Licensure, certification, or approval of professional personnel.
Rule 92. Professional personnel employed or contracted with to provide related services
to students with disabilities shall be licensed, certificated, or registered by a governmental
agency or a legally recognized professional board or association as an indication of adequate
preparation and training, or be recommended by a college or university offering an
appropriate training program as approved by the state board of education.
R 340.1793 Paraprofessional personnel; qualifications.
Rule 93. Paraprofessional personnel employed in special education programs shall be
qualified under requirements established by their respective intermediate school district plan.
Paraprofessional personnel include, but are not limited to, teacher aides, health care aides,
bilingual aides, instructional aides, and program assistants in programs for students with
cognitive impairment or severe multiple impairments.
56
R 340.1793a Interpreters for the deaf.
Rule 93a. An interpreter for the deaf shall be any of the following:
(a) A certified interpreter as defined in 1982 PA 204, MCL 393.501 et seq., and known as
the deaf persons’ interpreters act.
(b) A qualified interpreter as defined in 1982 PA 204, MCL 393.501 et seq., and known
as the deaf persons’ interpreters act, who has been approved at quality assurance level II or
III.
(c) A high school graduate, or equivalent, with advanced training in a community
college, agency, or degree-granting institution. The training programs must be approved by
the department.
R 340.1795 Early childhood special education teachers; special requirements.
Rule 95. (1) An early childhood special education teacher for young children with
disabilities or developmental delay, in addition to meeting the specific requirements set forth
in R 340.1782, shall possess either of the following:
(a) An early childhood endorsement on the teaching certificate.
(b) A major or minor in early childhood education or child growth and
development as recommended by an approved university.
(2) Only candidates meeting the requirements under subrule (1) (b) of this rule are
required to be approved by the department.
(3) As of the effective date of these rules, a teacher who has received full approval as a
teacher of preprimary age impaired students shall be deemed to have full approval as an early
childhood special education teacher, if the teacher possesses a valid Michigan teaching
certificate.
R 340.1796 Teachers of students with speech and language impairment; special
requirements.
Rule 96. (1) A teacher of students with speech and language impairment shall meet all of
the following requirements:
(a) An earned master’s degree in speech and language pathology.
(b) A minimum of 60 semester or equivalent hours of academic credit in normal
aspects of human communication, development thereof, and clinical techniques for
evaluation and management of speech and language disorders distributed as follows:
(i) A minimum of 12 semester or equivalent hours in courses pertaining to
normal development of speech, language, and hearing.
(ii) A minimum of 30 semester or equivalent hours in courses on
communication disorders and evaluation and management of speech, language, and hearing
disorders. Of these 30 semester or equivalent hours, 24 hours shall be in speech and language
pathology and 6 shall be in audiology. Not more than 6 of the 30 semester or equivalent
hours may be earned for clinical practicum.
(iii) A minimum of 30 semester or equivalent hours that are acceptable on a
graduate level, of which 21 hours shall be within the group specified under paragraph (ii) of
this subdivision.
(c) A minimum of 300 clock hours of supervised practicum experience with
persons who present a variety of communication disorders, to be acquired in conjunction
with academic training, 150 hours of which shall be obtained at the graduate level.
(2) The state board of education or its designee shall approve as a teacher of students
with speech and language impairment a person who is employed or approved as a teacher of
students with speech and language impairment before the effective date of these rules.
(3) A teacher of students with speech and language impairment assigned to programs for
students with severe language impairment, as defined in R 340.1756, shall be certified at the
elementary level.
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R 340.1797 Teachers of physical education for students with disabilities; special
requirements.
Rule 97. A teacher of physical education for students with disabilities shall possess a
valid Michigan teaching certificate with an endorsement in physical education, special
education, or both, and shall complete all of the following:
(a) A minimum of 9 semester or equivalent hours in special education courses leading
to the acquisition of all of the following competencies:
(i) Knowledge of the causes of various disabilities and the effects of those
conditions on learning.
(ii) Ability to assess physical education skills of individuals exhibiting various
disabilities.
(iii) Knowledge of special education teaching models that employ assessmentprescriptive
techniques.
(iv) Ability to use community and staff resources within the special education
environment.
(b) A minimum of 9 semester or equivalent hours in special physical education courses
leading to the acquisition of all of the following competencies:
(i) Ability to write in behavioral terms and assess instructional objectives for
physical education for students with disabilities.
(ii) Knowledge of motor characteristics, behaviors, and development sequences
associated with various disabilities in relationship to normal motor development.
(iii) Knowledge of anatomy, kinesiology, and neurology that pertains to normal and
abnormal motor control and sensory motor integration for teaching physical education to
students with severe disabilities and students who are nonambulatory.
(iv) Ability to adapt teaching methods, materials, and techniques for physical and
motor fitness, gymnasium use, fundamental motor skills, aquatic skills, dance, individual and
group games, and lifetime sports skills for the needs of students with disabilities.
(v) Ability to analyze, adapt, and implement physical education curriculum in
providing appropriate programs for a variety of disabilities.
(c) A directed field experience in teaching physical education in a school setting with
students with disabilities.
(d) As of the effective date of these rules, a teacher who has received full approval as a
teacher of physical education for handicapped individuals shall be deemed to have full
approval as a teacher of physical education for students with disabilities, if the teacher
possesses a valid Michigan teaching certificate.
R 340.1798 Teachers of physical education for students with disabilities; role.
Rule 98. A special education-reimbursed teacher of physical education shall provide
instruction in physical education to students with disabilities whose disabilities preclude
integration into general physical education classes. Teachers of physical education for
students with disabilities may provide supportive service to general physical education
teachers who have students with disabilities integrated into their programs and to teachers of
students with disabilities who are delivering physical education services.
R 340.1799 Teachers of students with autism; special requirements.
Rule 99. The teacher education program for teachers of students with autism shall
include a minimum of 30 semester or equivalent hours relating to all of the following areas:
(a) Syndrome of autism, including its etiology.
(b) Child development, with special emphasis on language, communication, and
cognitive development.
(c) Behavioral intervention techniques.
(d) Systematic curriculum development, with special emphasis on personal adjustment
and prevocational education.
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(e) Home/school interactions.
(f) Family and community support services.
R 340.1799a Teachers of students with physical impairment and students with other
health impairment; special requirements.
Rule 99a. The teacher education program for teachers of students with physical
impairment and students with other health impairment shall include a minimum of 30
semester or equivalent hours. The teacher education program for teachers of students with
physical impairment and students with other health impairment shall include both of the
following:
(a) A minimum of 12 semester or equivalent hours of special skills and techniques for
working with students with physical impairment and students with other health impairment,
including all of the following:
(i) Medical aspects of temporary and permanent physical disabilities of a wide
variety.
(ii) Impact of neurological impairments and cognitive impairments on learning.
(iii) Equipment and techniques of physical management of students with physical
impairment and students with other health impairment.
(iv) Methods and materials for training, observation, and assessment of students
with physical impairment and students with other health impairment, including techniques
for nonvocal communication.
(b) A minimum of 10 semester or equivalent hours in the development of competence in
all of the following areas:
(i) Ability to work as a member of a multidisciplinary evaluation team which
includes medical and paramedical personnel and to supervise paraprofessional personnel.
(ii) Ability to develop and implement an instructional plan for students, including
those confined to home or a hospital.
(iii) Ability to explain the condition of the student and the condition’s impact on
learning and to serve as a resource person for students with physical impairment and students
with other health impairment within general and special education classes.
(iv) Ability to counsel students regarding all of the following:
(A) Human sexuality.
(B) Home, family, and community living.
(C) Career selection.
(D) The use of local, state, and national resources.
(v) Ability to develop, implement, and reinforce special instruction in all of the
following life skill areas:
(A) Self-help skills.
(B) Recreation and leisure time activities.
(C) Community transportation and mobility.
(D) Use of personal aids.
(vi) Ability to understand the role and function of related service personnel and to
work in conjunction with them in the development and implementation of special
instructional programs or techniques necessary for students with physical impairment and
students with other health impairment.
(vii) Ability to observe and assess students with physical impairment and students
with other health impairment through the use of formal and informal tools and techniques.
(viii)Ability to work intensively and extensively with parents of students, both as a
home instructor for infants and their parents and as a liaison between the educational
agencies and the home.
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R 340.1799b Teachers of students with visual impairment; special requirements.
Rule 99b. The teacher education program for teachers of students with visual impairment
shall include a minimum of 30 semester or equivalent hours relating to both of the following
areas:
(a) Twelve semester or equivalent hours of special skills and techniques for working
with students with visual impairment, including all of the following:
(i) Beginning and advanced braille.
(ii) Methods of teaching students with visual impairment.
(iii) Special equipment and its use for students with visual impairment.
(b) Ten semester or equivalent hours in the development of competence in all of the
following areas:
(i) Ability to work as a member of a multidisciplinary evaluation team which
includes medical and technical personnel.
(ii) Ability to develop and implement a curriculum and an instructional program for
a range of students with visual impairment.
(iii) Ability to implement and support a program of communication skills and
techniques and to implement and support a program of orientation and mobility skills as
deemed appropriate for the student.
(iv) Ability to explain the structure and function of the eye and the impact of vision
impairment on learning and to serve as a resource person and consultant for students with
visual impairment in general and special education classes.
(v) Ability to instruct students with visual impairment regarding all of the
following:
(A) Human sexuality.
(B) Home, family, and community living.
(C) Career selection.
(D) The use of local, state, and national resources.
(vi) Ability to develop and implement special instruction in all of the following life
skill areas:
(A) Self-help skills.
(B) Recreation and leisure time activities.
(C) Community transportation and mobility.
(D) Use of personal aids.
(vii) Ability to work intensively and extensively with parents of students with visual
impairment, both as a home instructor for parents and as a liaison between the educational
agencies and the home.
R 340.1799c Teachers of students with hearing impairment; special requirements.
Rule 99c. (1) The teacher education program for teachers of students with hearing
impairment shall include a minimum of 30 semester or equivalent hours. The teacher
education program for teachers of students with hearing impairment shall meet the council
on education of the deaf standards or shall, at a minimum, include 30 semester or equivalent
hours relating to all of the following areas:
(a) Language and linguistics.
(b) Audiology and speech science.
(c) Psychology.
(d) Education.
(2) Students shall complete a program that is designed to develop all of the following
competencies:
(a) Knowledge of linguistics, theories of language development, and the various
special methods used to assess and develop language competence.
(b) Ability to utilize an individual diagnostic profile of the student’s expressive and
receptive language skills.
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(c) Ability to integrate language development with the teaching of English,
mathematics, social studies, science, and other academics.
(d) Ability to use various and combined modes, manual and oral, in both expressive
and receptive communication with students with hearing impairment.
(e) Knowledge of the anatomy, physiology, and pathology of the organs of speech
and hearing.
(f) Knowledge of audiological assessment information and its application to the
individualized education program of a student with hearing impairment.
(g) Knowledge of personal and group amplification systems, including their basic
maintenance.
(h) Ability to incorporate and teach appropriate procedure to maximize the use of
speech, speech reading, and auditory skills.
(i) Ability to use systematic observational techniques for establishing baseline
data, evaluating problem areas, and for documenting and assessing progress.
(j) Knowledge of the psychological and sociological impact of severe/profound
hearing impairment, including information about the community/culture of adult persons
who are deaf.
(k) Ability to identify and use local, state, and national resources in support of
students with hearing impairment, their parents, and their educational program.
(l) Ability to orient parents, general education school staff, and administrators to
the unique needs and learning styles of students with hearing impairment.
(m) Ability to assess communication, academic, and social/emotional development
of students with hearing impairment.
(n) Ability to relate diagnostic information in functional terms to parents and
support service specialists.
(o) Ability to design and implement an educational program appropriate to the
individual student’s communication, academic, prevocational, and social needs.
(p) Ability to modify and adapt procedures for teaching reading, math, and other
academic subjects to students with hearing impairment.
(3) Before assignment to directed student teaching, each student shall spend a minimum
of 60 clock hours in programs utilizing various communication modes, both manual and oral.
(4) The council on the education of the deaf standards, as cited in subrule (1) of this
rule, are adopted by reference in these rules and are available from the Committee on
Professional Preparation and Certification, Gallaudet University, 800 Florida Avenue, N.E.,
Washington, D.C., 20002-3695, and also from the Michigan Department of Education,
Office of Special Education and Early Intervention Services, P.O. Box 30008, Lansing, MI,
48909, at no cost for reproduction.
R 340.1799e Psychologist defined.
Rule 99e. “Psychologist” means an approved Michigan school psychologist who is
certified by the department or who is a fully licensed psychologist.
R 340.1799f School social worker defined.
Rule 1799f. “School social worker” means a school social worker who is approved by
the department.
§ 300.135 Comprehensive system of personnel development.
(a) General. The State must have in effect, consistent with the purposes of this part and
with section 635(a)(8) of the Act, a comprehensive system of personnel development that—
(1) Is designed to ensure an adequate supply of qualified special education, regular
education, and related services personnel; and
(2) Meets the requirements for a State improvement plan relating to personnel
development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
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(b) Information. The State must have on file with the Secretary information that shows
that the requirements of paragraph (a) of this section are met.
§ 300.136 Personnel standards.
(a) Definitions. As used in this part—
(1) Appropriate professional requirements in the State means entry level requirements
that—
(i) Are based on the highest requirements in the State applicable to the profession or in
which a person is providing special education or related services; and
(ii) Establish suitable qualifications for personnel providing special education and related
services under Part B of the Act to children with disabilities who are served by State, local,
and private agencies (see § 300.2);
(2) Highest requirements in the State applicable to a specific profession or discipline
means the highest entry-level academic degree needed for any State-approved or –recognized
certification, licensing, registration, or other comparable requirements that apply to that
profession or discipline;
(3) Profession or discipline means a specific occupational category that—
(i) Provides special education and related services to children with disabilities under Part
B of the Act;
(ii) Has been established or designated by the State;
(iii) Has a required scope of responsibility and degree of supervision; and
(iv) Is not limited to traditional occupational categories; and
(4) State-approved or –recognized certification, licensing, registration, or other
comparable requirements means the requirements that a State legislature either has enacted
or has authorized a State agency to promulgate through rules to establish the entry-level
standards for employment in a specific profession or discipline in that State.
(b) Policies and procedures. (1)(i) The State must have on file with the Secretary policies
and procedures relating to the establishment and maintenance of standards to ensure that
personnel necessary to carry out the purposes of this part are appropriately and adequately
prepared and trained.
(ii) The policies and procedures required in paragraph (b)(1)(i) of this section must
provide for the establishment and maintenance of standards that are consistent with any
State-approved or –recognized certification, licensing, registration, or other comparable
requirements that apply to the profession or discipline in which a person is providing special
education or related services.
(2) Each State may—
(i) Determine the specific occupational categories required to provide special education
and related services within the State; and
(ii) Revise or expand those categories as needed.
(3) Nothing in this part requires a State to establish a specified training standard (e.g., a
masters degree) for personnel who provide special education and related services under
Part B of the Act.
(4) A State with only one entry-level academic degree for employment of personnel in a
specific profession or discipline may modify that standard as necessary to ensure the
provision of FAPE to all children with disabilities in the State without violating the
requirements of this section.
(c) Steps for retraining or hiring personnel. To the extent that a State’s standards for a
profession or discipline, including standards for temporary or emergency certification, are
not based on the highest requirements in the State applicable to a specific profession or
discipline, the State must provide the steps the State is taking and the procedures for
notifying public agencies and personnel of those steps and the timelines it has established for
the retraining or hiring of personnel to meet appropriate professional requirements in the
State.
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(d) Status of personnel standards in the State. (1) In meeting the requirements in
paragraphs (b) and (c) of this section, a determination must be made about the status of
personnel standards in the State. That determination must be based on current information
that accurately describes, for each profession or discipline in which personnel are providing
special education or related services, whether the applicable standards are consistent with the
highest requirements in the State for that profession or discipline.
(2) The information required in paragraph (d)(1) of this section must be on file in the
SEA and available to the public.
(e) Applicability of State statutes and agency rules. In identifying the highest
requirements in the State for purposes of this section, the requirements of all State statutes
and the rules of all State agencies applicable to serving children with disabilities must be
considered.
(f) Use of paraprofessionals and assistants. A State may allow paraprofessionals and
assistants who are appropriately trained and supervised, in accordance with State law,
regulations, or written policy, in meeting the requirements of this part to be used to assist in
the provision of special education and related services to children with disabilities under Part
B of the Act.
(g) Policy to address shortage of personnel. (1) In implementing this section, a State may
adopt a policy that includes a requirement that LEAs in the State make an ongoing good faith
effort to recruit and hire appropriately and adequately trained personnel to provide special
education and related services to children with disabilities, including, in a geographic area of
the State where there is a shortage of personnel that meet these qualifications, the most
qualified individuals available who are making satisfactory progress toward completing
applicable course work necessary to meet the standards described in paragraph (b)(2) of this
section, consistent with State law and the steps described in paragraph (c) of this section,
within three years.
(2) If a State has reached its established date under paragraph (c) of this section, the State
may still exercise the option under paragraph (g)(1) of this section for training or hiring all
personnel in a specific profession or discipline to meet appropriate professional requirements
in the State.
(3)(i) Each State must have a mechanism for serving children with disabilities if
instructional needs exceed available personnel who meet appropriate professional
requirements in the State for a specific profession or discipline.
(ii) A State that continues to experience shortages of qualified personnel must address
those shortages in its comprehensive system of personnel development under § 300.135.
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PART 6.
FINANCING
R 340.1801 Source of funds.
Rule 101. Funds for operating and housing special education programs and services
operated by intermediate school districts, constituent local school districts, and public school
academies shall be derived from federal appropriations; general and categorical
appropriations in 1979 PA 94, MCL 388.1601 et seq., and known as the state school aid act
of 1979; local general and specific property taxes, gifts, grants, and bequests; or payments
from a school district sending students with disabilities to another school district.
R 340.1802 Use of funds.
Rule 102. Funds available to intermediate school districts, constituent local school
districts, and public school academies as provided in R 340.1801 may be used for any of the
following:
(a) The employment of teachers and other personnel.
(b) Transportation of students with disabilities.
(c) The purchase and maintenance of equipment and supplies.
(d) The lease, purchase, construction, renovation, or acquisition of vehicles, sites,
buildings or portions thereof, and equipment as deemed necessary for staff, programs, and
services operated under the intermediate school district plans as approved by the state board
of education and other provisions of law.
§ 300.302 Residential placement.
If placement in a public or private residential program is necessary to provide special
education and related services to a child with a disability, the program, including nonmedical
care and room and board, must be at no cost to the parents of the child.
R 340.1803 Building or purchasing facilities.
Rule 103. When facilities are purchased, constructed, or renovated with funds acquired
through 1976 PA 451, MCL 380.1722 to 380.1729 for constituent local school districts,
funds shall be used for contractual purposes which provide that the constituent local school
district or public school academy shall make that facility available for special education
programs and services for a period of 25 years. Disbursement of the funds shall be made by
the intermediate school district board of education under the intermediate school district
plan.
R 340.1808 Reporting costs.
Rule 108. An intermediate school district, a local school district, or a public school
academy operating a program under these rules shall submit to the superintendent of public
instruction, at the close of the fiscal year, an itemized report of the actual cost of operating
the program, including the cost of transportation, on forms provided for that purpose.
Reported actual costs for purposes of reimbursement shall include only those that are
reasonable and appropriate as determined by the superintendent of public instruction.
R 340.1809 State aid to operating school districts.
Rule 109. The intermediate school district and its constituent local school districts and
public school academies shall be entitled to receive reimbursement for special education
programs and services that are in compliance with these rules and in accordance with the
intermediate school district plan as approved by the state board of education and as
prescribed in 1979 PA 94, as amended, MCL 388.1601 et seq., and known as the state school
aid act of 1979.
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R 340.1810 Reimbursement of special education transportation.
Rule 110. Specialized transportation or additional transportation, or both, as required in
the individualized education program for a handicapped person to receive a free appropriate
public education in the least restrictive educational environment, shall be reimbursable as
authorized by 1979 PA 94, as amended, MCL 388.1601 et seq., and known as the state
school aid act of 1979.
R 340.1811 Distribution of intermediate millage to the intermediate school district, its
constituent local school districts, and public school academies.
Rule 111. (1) Only those programs and related services provided under a state board of
education-approved intermediate school district plan and approved for reimbursement by the
department shall be eligible for reimbursement from funds generated by adoption of millage
under 1976 PA 451, MCL 380.1723 and 380.1724.
(2) If intermediate school district special education tax funds are insufficient to
reimburse constituent claims in full, then a like percentage of the claim shall be paid for
support of each program and service to each constituent district. Claims for operation of
special education programs and services available to all constituent local school districts or
public school academies may be reimbursed in full before any prorated payment which may
become necessary for other programs and services.
(3) Current intermediate school district special education tax funds need not be used to
offset operational claim deficits from prior years.
(4) Amounts may be retained by the intermediate school district for required cash flow
purposes not to exceed 1 year’s operational expenses for the purpose of maintaining special
education programs and services operated by the intermediate school district.
(5) Intermediate school districts shall submit the desired method for the distribution of
funds to the intermediate school district, its constituent local school districts, and public
school academies and the reasons therefor for approval as part of the intermediate school
district plan required under section 1711 of 1976 PA 451, MCL 380.1711.
R 340.1812 Intermediate school district’s use of special education millage.
Rule 112. (1) Costs for the operation of special education programs and services by the
intermediate school district, available to all constituent local school districts and public
school academies, may be reimbursed in full before the reimbursement of local districts from
funds generated by adoption of millage under sections 1723 and 1724 of 1976 PA 451, MCL
380.1723 and 380.1724.
(2) If intermediate school district special education personnel offer direct services to
students with disabilities in some but not all constituent local school districts or public school
academies, and if prorated payment of constituent local school district or public school
academy operational claims is necessary, then the per capita deficit for each student served
shall be paid by the school district of residence or a direct charge shall be made to the
constituent local school district based on the amount of deficit and the proportion of time the
constituent local school district or public school academy received the service from the
intermediate school district.
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PART 7.
DEVELOPMENT AND SUBMISSION OF INTERMEDIATE SCHOOL
DISTRICTS’ PLANS AND MONITORING
R 340.1831 Plan and modification submission.
Rule 131. (1) Each intermediate school district board shall submit an intermediate school
district plan for special education to the superintendent of public instruction to become
effective when approved by the superintendent of public instruction.
(2) Any intermediate school district plan or subsequent modification approved by the
superintendent of public instruction shall be distributed by the intermediate school district to
each constituent local school district superintendent, each chief executive officer of a public
school academy, and the chairperson of the parent advisory committee within 7 calendar
days of the intermediate school district’s receipt of approval by the superintendent of public
instruction.
(3) Except as provided in subrule (4) of this rule, a plan submitted by an intermediate
school district and approved by the superintendent of public instruction shall remain in effect
until the intermediate school district submits modifications that the intermediate school
district deems necessary to the department and the modifications are approved by the
superintendent of public instruction.
(4) The department may require an intermediate school district to modify its plan if,
after the effective date of the individuals with disabilities education act amendments of 1997,
20 U.S.C. §1400 et seq., the provisions of that act, its regulations, 34 C.F.R. 300.1, et seq.,
1976 PA 451, MCL 380.1 et seq., or these rules are amended, there is a new interpretation of
any of these laws or regulations by a public agency or court, or the department finds
noncompliance.
(5) If the department requires a modification to the intermediate school district plan
under subrule (3) of this rule and an intermediate school district’s process as set forth in this
part does not result in agreement among the intermediate school district, its constituent local
school districts, public school academies, and the parent advisory committee regarding the
required modification, then the intermediate school district shall submit the required
modification. A constituent local school district, public school academy, or the parent
advisory committee may file an objection under R 340.1836.
R 340.1832 Content areas.
Rule 132. (1) An intermediate school district plan for special education, or any
modification thereof, shall be an operational plan that sets forth the special education
programs and related services to be delivered. The plan shall comply with 1976 PA 451,
MCL 380.1 et seq. and these rules. The plan shall also comply with the following format and
include, at a minimum, all of the following:
(a) A description of the procedures used by the intermediate school district to
advise and inform students with disabilities, their parents, and other members of the
community of the special education opportunities required under the law; the obligations of
the local school districts, public school academies, and intermediate school district; and the
title, address, and telephone number of representatives of those agencies who can provide
information about the special education opportunities.
(b) A description of activities and outreach methods which are used to ensure that
all citizens are aware of the availability of special education programs and services.
(c) A description of the type of diagnostic and related services that are available,
either directly or as a purchased service, within the intermediate school district or its
constituent local school districts or public school academies.
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(d) A description of the special education programs designed to meet the
educational needs of students with disabilities.
(e) The intermediate school district plan shall either describe special education
programs and services under part 3 of these rules or shall propose alternative special
education programs and services.
(f) The plan shall be approved by the superintendent of public instruction before
implementation under R 340.1831(1). The plan is developed and approved under
R 340.1833, and R 340.1835 to R 340.1837.
(g) The identity of the full- or part-time constituent local school district or public
school academy administrator who, by position, is responsible for the implementation of
special education programs and services.
(h) A description of the qualifications of paraprofessional personnel.
(i) A description of the transportation necessary to provide the special education
programs and services described in subdivisions (c), (d), and (e) of this subrule.
(j) A description of the method of distribution of funds under R 340.1811(5).
(k) A description of how the intermediate school district will appoint the parent
advisory committee members under R 340.1838(1) and (2).
(l) A description of the role and responsibilities of the parent advisory committee,
including how it shall participate in the cooperative development of the intermediate school
district plan, formulate objections thereto, if any, and related matters, such as the role and
responsibility of the parent advisory committee in evaluating special education programs and
services within the intermediate school district.
(m) A description of the role and relationship of administrative and other school
personnel, as well as representatives of other agencies, in assisting the parent advisory
committee in its responsibilities.
(n) A description of the fiscal and staff resources that shall be secured or allocated
to the parent advisory committee by the intermediate school district to make it efficient and
effective in operation.
R 340.1833 Cooperative development and review.
Rule 133. (1) Intermediate school district plans, or any modification thereof, shall be
developed in cooperation with constituent local school districts, public school academies,
and the parent advisory committee.
R 340.1835 Plan signatures.
Rule 135. Each intermediate school district plan, or modification thereof, shall be signed
by all of the following:
(a) The intermediate school district superintendent, signifying approval by the
intermediate school district board.
(b) The superintendent of each constituent local school district, the chief executive
officer of each public school academy, and the chairperson of the parent advisory committee,
signifying their involvement in the development of the intermediate school district plan.
R 340.1836 Objections to plan; procedures.
Rule 136. (1) Any constituent local school district, public school academy, or the parent
advisory committee may file objections with the intermediate school district, in whole or in
part, to an approved intermediate school district plan or a plan modification that has been
submitted to the superintendent of public instruction for approval. Copies of an objection to
the plan shall, within 7 calendar days, be directed to the department by the intermediate
school district board of education and to all constituent local school districts, public school
academies, and the parent advisory committee by certified mail, return receipt requested.
Objections filed shall specify the portions of the intermediate school district plan objected to,
contain a specific statement of the reasons for objection, and shall propose alternative
provisions.
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(2) A hearing officer shall be designated by the department and shall promptly give
reasonable notice of the hearing. The hearing shall begin not later than 30 calendar days from
the date the request was filed with the department. The hearing shall be conducted according
to procedures established by the department. After the appointment of the hearing officer, the
objection may be withdrawn upon written stipulation of the intermediate school district and
the objecting party.
(3) The intermediate school district, a constituent local school district, a public school
academy, or the parent advisory committee may file, with the department, a response to the
objection before the hearing.
(4) Within 30 calendar days after the closing of the hearing, the hearing officer shall
report findings of fact and conclusions of law and shall recommend to the superintendent of
public instruction whether the intermediate school district plan or modification to the plan
should be approved as submitted, approved with such other modifications as deemed
appropriate by the hearing officer, or the objections granted as submitted. The findings and
recommendations shall be immediately mailed by the department to all parties to the
intermediate school district plan. Any party may file written exceptions to the findings and
recommendations with the superintendent of public instruction within 20 calendar days of
receipt of the findings and recommendations and direct copies of the exceptions to all other
parties and the department. The findings and recommendations of the hearing officer,
including any exceptions, shall be submitted to the superintendent of public instruction with
the intermediate school district plan. The superintendent of public instruction shall render a
final decision within 30 calendar days from the date the exceptions were to be filed.
R 340.1837 Approval of intermediate school district plans.
Rule 137. (1) Intermediate school district plans, or modification thereof, or any changes
to the intermediate school district plan based on an objection to the plan, shall be approved
by the superintendent of public instruction under R 340.1836. The intermediate school
district plans or modifications shall be in compliance with all of the following:
(a) The provisions of sections 1701 to 1766 of 1976 PA 451, MCL 380.1701 to
380.1766.
(b) Michigan rules promulgated to implement statutory provisions for special
education programs and services.
(c) The individuals with disabilities education act, 20 U.S.C. §1400 et seq., and its
implementing regulations, 34 C.F.R. §300.1 et seq., adopted by reference in R 340.1701.
(2) Intermediate school district boards of education, constituent local school boards,
public school academies, and the parent advisory committee shall be advised by the
superintendent of public instruction as to whether the intermediate school district plan was
approved.
R 340.1838 Parent advisory committee.
Rule 138. (1) A parent advisory committee shall be appointed by each intermediate
school district board.
(a) The parent advisory committee and its officers shall consist only of parents of
students with disabilities with at least 1 parent from each constituent local school district and
public school academy unless no parent agrees to serve on the parent advisory committee to
represent the constituent local school district or public school academy.
(b) Each constituent local school district board of education and each public school
academy board of directors shall nominate at least 1 parent.
(c) The intermediate school district board of education may nominate additional
members not to exceed 33 1/3% of the total parent advisory committee membership.
(2) The intermediate school district board of education shall make every attempt to
assure that all types of impairments and all identifiable organizations of parents of students
with disabilities within the intermediate school district are represented on the parent advisory
committee.
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(3) The intermediate school district board of education may recommend operational
procedures for parent advisory committee review and adoption.
(4) The intermediate school district shall secure or allocate fiscal and staff resources to
the parent advisory committee to make it efficient and effective in operation.
(5) The parent advisory committee is responsible for determining and documenting, in
writing, the organizational structure of the committee, including all of the following:
(a) Officers and their responsibilities.
(b) Meeting times.
(c) Notice of meeting times.
(d) Voting procedures.
(e) Terms of office.
(f) Related matters.
(6) The parent advisory committee shall participate in the development of the
intermediate school district’s plan or any modification of the plan for the delivery of special
education programs and services as required by R 340.1833.
(7) The parent advisory committee may provide advisory input on any matters that the
committee deems appropriate to the improvement of special education services within the
intermediate school district.
R 340.1839 Monitoring and program evaluation.
Rule 139. (1) The department shall establish, with approval of the state board of
education, monitoring procedures, criteria, and evaluation activities to ensure that minimum
standards are being achieved by all public agencies.
(2) Each intermediate school district shall implement monitoring procedures and
evaluation methods developed by the department to ensure that the standards and criteria
established are being achieved by the intermediate school district, their constituent local
school districts, and their public school academies.
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PART 8.
COMPLAINTS
R 340.1851 Intermediate school district’s responsibility for investigation of complaints;
report.
Rule 151. (1) An intermediate school district, upon receipt of a complaint, shall
investigate the complaint under these rules and the procedures approved by the state board of
education. The investigation shall include direct communication with the complainant or the
complainant’s authorized representative. The complainant shall be informed of the specific
procedures for conducting the investigation, filing reports, and appealing the conclusions
contained in the investigation report. The investigation shall be completed and a report shall
be filed by the intermediate school district within 21 calendar days after the date of receipt of
the complaint. The report shall be filed with the complainant, the local school district or
public school academy, if applicable, and the department. The report shall contain
information as specified in procedures approved by the state board of education and shall
contain notification of the complainant’s right to appeal the conclusions of the investigation
and to have the department review the intermediate school district’s decision on the
complaint.
(2) The intermediate school district may contract with an independent agent to conduct
the investigation or shall appoint a person who is a member of the special education staff to
be responsible for investigating complaints under this part. The person shall not have
administrative authority over programs or services against which a complaint may be filed.
Copies of this part and the procedures approved by the state board of education shall be made
available by the intermediate school district for distribution to its employees, the employees
of constituent local school districts, the employees of constituent public school academies,
the public, and other agencies operating special education programs and services.
(3) An intermediate school district receiving a complaint under its jurisdiction shall,
during the pendency of any proceeding stipulated in this rule, require any agency against
which the complaint was lodged to maintain the educational status, program placement, or
service of an involved student as it was before the complaint if, in its judgment, not doing so
may constitute a violation of the student’s due process protection or if so directed by the
department.
R 340.1852 Department responsibilities for processing complaints and conducting state
investigations.
Rule 152. (1) The department may, for good cause, investigate a signed, written
complaint under the procedures approved by the state board of education, regardless of the
status of the investigation under R 340.1851.
(2) Upon receipt of a complainant’s appeal for review of the intermediate school
district’s decision on the complaint, the department, under the procedures approved by the
state board of education, shall do all of the following:
(a) Carry out an independent on-site investigation if the department determines that
an investigation is necessary.
(b) Give the complainant the opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint.
(c) Review all relevant information and make an independent determination as to
whether the educational agency is violating any of the provisions of law specified in the
definition of “complaint” in R 340.1701a(c).
(3) The department shall issue a written report to the complainant and to the educational
agency against which the complaint was filed that addresses each allegation in the complaint
and contains all of the following information:
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(a) Findings of fact and conclusions.
(b) The reasons for the department’s final decision.
(c) Procedures for effective implementation of the department’s final decision, if
needed, including technical assistance activities, negotiations, and corrective actions to
achieve compliance.
(4) The intermediate school district is responsible for assisting the agency in violation,
for monitoring progress of the corrective action, and for informing the department when the
corrections have been completed.
(5) Proof of compliance shall be submitted by the educational agency that was in
violation within the time line specified in the directive for correction.
(6) Upon failure of an educational agency to correct known violations of law, upon
failure of the educational agency in violation to cooperate with the department or the
intermediate school district during the conduct of its investigation, or upon known
falsification of fact or continued repetition of similar violations, the state board of education
shall do 1 or more of the following:
(a) If the educational agency in violation is a local school district or a public school
academy, then the state board of education shall direct the intermediate school district board
to provide complying programs and services as stipulated in 1976 PA 451, MCL 380.1702.
(b) If the agency in violation is an intermediate school district, the state board of
education may withdraw the authority of the intermediate district to operate a program in
noncompliance and simultaneously require the local district of residence to place the affected
student or students in an appropriate program.
(c) Withhold federal funds under section 1413(d)(1) of the individuals with
disabilities education act of 1997, 20 U.S.C. §1413(d)(1).
(d) Apply other penalties, as stipulated in 1976 PA 451, MCL 380.1 et seq.
(e) Withhold state funds under 1979 PA 94, MCL 388.1601 et seq., or any other
governing statute.
(f) Withhold, withdraw, or suspend such endorsements, approvals, credentials,
grants, or authorizations pertaining to special education personnel or projects that the state
board of education or its designee had authority to grant as authorized by, and in accordance
with, the procedures required by law.
(g) Seek enforcement in a court of appropriate jurisdiction of the corrective action
determined appropriate.
(7) The state board of education or its designee, during the pendency of any proceeding
under this part, shall require any educational agency against which the complaint was lodged
to maintain the educational status, program placement, or service of an involved student as it
was before the complaint if, in the judgment of the state board of education or its designee,
not doing so constitutes a violation of the student’s due process protections.
R 340.1853 General responsibilities of all agencies for processing complaints and
investigations.
Rule 153. (1) The term “complaint” is defined in R 340.1701a(c). All public educational
agencies shall receive allegations of violations of state or federal regulations pertaining to
special education. If the allegation is made orally, the recipient agency may take formal or
informal action as necessary to resolve the situation in compliance with applicable provisions
of law, but, at a minimum, shall immediately do all of the following:
(a) Inform the person making the allegation that he or she has a right to file a
written formal complaint with the appropriate intermediate school district or with the
department and to have that complaint investigated in accord with this part and procedures
approved by the state board of education.
(b) Inform the person making the allegation that if he or she wishes to delay filing a
formal complaint so that an informal resolution may be attempted, he or she retains the right
to file a formal complaint if the informal attempts to resolve the concern in a timely manner
are unsuccessful.
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(c) Provide the person making the allegation with a copy of this part and the state
board of education’s procedures pertaining to complaints and offer to assist the person to file
the complaint.
(2) A person claiming to be acting on behalf of a complainant may be required to
provide evidence of that authority.
(3) Complaints are initially investigated by the intermediate school district. At its
discretion, the department, for good cause shown, may initiate a complaint or may conduct
the initial investigation of the complaint instead of requiring the intermediate school district
to investigate the complaint initially.
(4) A time limit of 60 calendar days after a complaint is filed is allotted for the
intermediate school district to complete the investigation responsibilities under R 340.1851
and for the department to complete its review as specified in R 340.1852.
(5) An extension of time specified in this part may be granted by the department only if
exceptional circumstances exist with respect to a particular complaint. A denial of an
extension request is final.
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PART 9.
RECORDS AND CONFIDENTIALITY
R 340.1861 Records; maintenance; content; transfer of records; release of records.
Rule 161. (1) A registry shall be maintained by intermediate school districts under
procedures established by the department and under the provisions of 1976 PA 451, MCL
380.1711, for all students with disabilities, as defined by R 340.1702, including students
placed in state and privately operated facilities. The registry shall be an operational, active
database system with the capacity to provide up-to-date student counts and other data
requirements to the department on a timely basis. Each constituent local school district,
public school academy, or state agency shall provide the intermediate school district with a
complete updated data record for each student with a disability. The updated record shall
contain full-time equivalency data for each student enrolled in a special education program
by the student count dates required in the state school aid act, 1979 PA 94, MCL 388.1601 et
seq., and shall contain each student’s data enrolled in programs and services by the student
count date required by the regulations implementing the individuals with disabilities
education act, 34 C.F.R. §300.1 et seq.
(2) If the residency of a student with a disability changes from one intermediate school
district to another, then the intermediate school district of previous residence shall transfer
the records maintained under this rule to the new intermediate school district upon written
request of the intermediate school district of residence and the parent of the student with a
disability for whom the record was maintained.
§ 300.561 Notice to parents.
(a) The SEA shall give notice that is adequate to fully inform parents about the
requirements of § 300.127, including—
(1) A description of the extent that the notice is given in the native languages of the
various population groups in the State;
(2) A description of the children on whom personally identifiable information is
maintained, the types of information sought, the methods the State intends to use in gathering
the information (including the sources from whom information is gathered), and the uses to
be made of the information;
(3) A summary of the policies and procedures that participating agencies must follow
regarding storage, disclosure to third parties, retention, and destruction of personally
identifiable information; and
(4) A description of all of the rights of parents and children regarding this information,
including the rights under the Family Educational Rights and Privacy Act of 1974 and
implementing regulations in 34 CFR part 99.
(b) Before any major identification, location, or evaluation activity, the notice must be
published or announced in newspapers or other media, or both, with circulation adequate to
notify parents throughout the State of the activity.
§ 300.562 Access rights.
(a) Each participating agency shall permit parents to inspect and review any education
records relating to their children that are collected, maintained, or used by the agency under
this part. The agency shall comply with a request without unnecessary delay and before any
meeting regarding an IEP, or any hearing pursuant to §§ 300.507 and 300.521–300.528, and
in no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this section includes—
(1) The right to a response from the participating agency to reasonable requests for
explanations and interpretations of the records;
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(2) The right to request that the agency provide copies of the records containing the
information if failure to provide those copies would effectively prevent the parent from
exercising the right to inspect and review the records; and
(3) The right to have a representative of the parent inspect and review the records.
(c) An agency may presume that the parent has authority to inspect and review records
relating to his or her child unless the agency has been advised that the parent does not have
the authority under applicable State law governing such matters as guardianship, separation,
and divorce.
§ 300.563 Record of access.
Each participating agency shall keep a record of parties obtaining access to education
records collected, maintained, or used under Part B of the Act (except access by parents and
authorized employees of the participating agency), including the name of the party, the date
access was given, and the purpose for which the party is authorized to use the records.
§ 300.564 Records on more than one child.
If any education record includes information on more than one child, the parents of those
children have the right to inspect and review only the information relating to their child or to
be informed of that specific information.
§ 300.565 List of types and locations of information.
Each participating agency shall provide parents on request a list of the types and
locations of education records collected, maintained, or used by the agency.
§ 300.566 Fees.
(a) Each participating agency may charge a fee for copies of records that are made for
parents under this part if the fee does not effectively prevent the parents from exercising their
right to inspect and review those records.
(b) A participating agency may not charge a fee to search for or to retrieve information
under this part.
§ 300.567 Amendment of records at parent’s request.
(a) A parent who believes that information in the education records collected, maintained,
or used under this part is inaccurate or misleading or violates the privacy or other rights of
the child may request the participating agency that maintains the information amend the
information.
(b) The agency shall decide whether to amend the information in accordance with the
request within a reasonable period of time of receipt of the request.
(c) If the agency decides to refuse to amend the information in accordance with the
request, it shall inform the parent of the refusal and advise the parent of the right to a hearing
under § 300.568.
§ 300.568 Opportunity for a hearing.
The agency shall, on request, provide an opportunity for a hearing to challenge
information in education records to ensure that it is not inaccurate, misleading, or otherwise
in violation of the privacy or other rights of the child.
§ 300.569 Result of hearing.
(a) If, as a result of the hearing, the agency decides that the information is inaccurate,
misleading or otherwise in violation of the privacy or other rights of the child, it shall amend
the information accordingly and so inform the parent in writing.
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(b) If, as a result of the hearing, the agency decides that the information is not inaccurate,
misleading, or otherwise in violation of the privacy or other rights of the child, it shall inform
the parent of the right to place in the records it maintains on the child a statement
commenting on the information or setting forth any reasons for disagreeing with the decision
of the agency.
(c) Any explanation placed in the records of the child under this section must—
(1) Be maintained by the agency as part of the records of the child as long as the record
or contested portion is maintained by the agency; and
(2) If the records of the child or the contested portion is disclosed by the agency to any
party, the explanation must also be disclosed to the party.
§ 300.570 Hearing procedures.
A hearing held under § 300.568 must be conducted according to the procedures under 34
CFR 99.22.
§ 300.571 Consent.
(a) Except as to disclosures addressed in § 300.529(b) for which parental consent is not
required by Part 99, parental consent must be obtained before personally identifiable
information is—
(1) Disclosed to anyone other than officials of participating agencies collecting or using
the information under this part, subject to paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement of this part.
(b) An educational agency or institution subject to 34 CFR part 99 may not release
information from education records to participating agencies without parental consent unless
authorized to do so under part 99.
(c) The SEA shall provide policies and procedures that are used in the event that a parent
refuses to provide consent under this section.
§ 300.572 Safeguards.
(a) Each participating agency shall protect the confidentiality of personally identifiable
information at collection, storage, disclosure, and destruction stages.
(b) One official at each participating agency shall assume responsibility for ensuring the
confidentiality of any personally identifiable information.
(c) All persons collecting or using personally identifiable information must receive
training or instruction regarding the State’s policies and procedures under § 300.127 and 34
CFR part 99.
(d) Each participating agency shall maintain, for public inspection, a current listing of the
names and positions of those employees within the agency who may have access to
personally identifiable information.
§ 300.573 Destruction of information.
(a) The public agency shall inform parents when personally identifiable information
collected, maintained, or used under this part is no longer needed to provide educational
services to the child.
(b) The information must be destroyed at the request of the parents. However, a
permanent record of a student’s name, address, and phone number, his or her grades,
attendance record, classes attended, grade level completed, and year completed may be
maintained without time limitation.
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Additional Federal Requirements
§ 300.305 Program options.
Each public agency shall take steps to ensure that its children with disabilities have
available to them the variety of educational programs and services available to nondisabled
children in the area served by the agency, including art, music, industrial arts, consumer and
homemaking education, and vocational education.
§ 300.306 Nonacademic services.
(a) Each public agency shall take steps to provide nonacademic and extracurricular
services and activities in the manner necessary to afford children with disabilities an equal
opportunity for participation in those services and activities.
(b) Nonacademic and extracurricular services and activities may include counseling
services, athletics, transportation, health services, recreational activities, special interest
groups or clubs sponsored by the public agency, referrals to agencies that provide assistance
to individuals with disabilities, and employment of students, including both employment by
the public agency and assistance in making outside employment available.
§ 300.307 Physical education.
(a) General. Physical education services, specially designed if necessary, must be made
available to every child with a disability receiving FAPE.
(b) Regular physical education. Each child with a disability must be afforded the
opportunity to participate in the regular physical education program available to nondisabled
children unless—
(1) The child is enrolled full time in a separate facility; or
(2) The child needs specially designed physical education, as prescribed in the child’s
IEP.
(c) Special physical education. If specially designed physical education is prescribed in a
child’s IEP, the public agency responsible for the education of that child shall provide the
services directly or make arrangements for those services to be provided through other public
or private programs.
(d) Education in separate facilities. The public agency responsible for the education of a
child with a disability who is enrolled in a separate facility shall ensure that the child receives
appropriate physical education services in compliance with paragraphs (a) and (c) of this
section.
§ 300.349 Private school placements by public agencies.
(a) Developing IEPs. (1) Before a public agency places a child with a disability in, or
refers a child to, a private school or facility, the agency shall initiate and conduct a meeting
to develop an IEP for the child in accordance with §§ 300.346 and 300.347.
(2) The agency shall ensure that a representative of the private school or facility attends
the meeting. If the representative cannot attend, the agency shall use other methods to ensure
participation by the private school or facility, including individual or conference telephone
calls.
(b) Reviewing and revising IEPs. (1) After a child with a disability enters a private school
or facility, any meetings to review and revise the child’s IEP may be initiated and conducted
by the private school or facility at the discretion of the public agency.
(2) If the private school or facility initiates and conducts these meetings, the public
agency shall ensure that the parents and an agency representative—
(i) Are involved in any decision about the child’s IEP; and
(ii) Agree to any proposed changes in the IEP before those changes are implemented.
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(c) Responsibility. Even if a private school or facility implements a child’s IEP,
responsibility for compliance with this part remains with the public agency and the SEA.
§ 300.350 IEP—accountability.
(a) Provision of services. Subject to paragraph (b) of this section, each public agency
must—
(1) Provide special education and related services to a child with a disability in
accordance with the child’s IEP; and
(2) Make a good faith effort to assist the child to achieve the goals and objectives or
benchmarks listed in the IEP.
(b) Accountability. Part B of the Act does not require that any agency, teacher, or other
person be held accountable if a child does not achieve the growth projected in the annual
goals and benchmarks or objectives. However, the Act does not prohibit a State or public
agency from establishing its own accountability systems regarding teacher, school, or agency
performance.
(c) Construction—parent rights. Nothing in this section limits a parent’s right to ask for
revisions of the child’s IEP or to invoke due process procedures if the parent feels that the
efforts required in paragraph (a) of this section are not being made.
§ 300.517 Transfer of parental rights at age of majority.
(a) General. A State may provide that, when a student with a disability reaches the age of
majority under State law that applies to all students (except for a student with a disability
who has been determined to be incompetent under State law)—
(1)(i) The public agency shall provide any notice required by this part to both the
individual and the parents; and
(ii) All other rights accorded to parents under Part B of the Act transfer to the student;
and
(2) All rights accorded to parents under Part B of the Act transfer to students who are
incarcerated in an adult or juvenile, State or local correctional institution.
(3) Whenever a State transfers rights under this part pursuant to paragraph (a)(1) or (a)(2)
of this section, the agency shall notify the individual and the parents of the transfer of rights.
(b) Special rule. If, under State law, a State has a mechanism to determine that a student
with a disability, who has reached the age of majority under State law that applies to all
children and has not been determined incompetent under State law, does not have the ability
to provide informed consent with respect to his or her educational program, the State shall
establish procedures for appointing the parent, or, if the parent is not available another
appropriate individual, to represent the educational interests of the student throughout the
student’s eligibility under Part B of the Act.
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State Advisory Panel
§ 300.650 Establishment of advisory panels.
(a) Each State shall establish and maintain, in accordance with §§ 300.650–300.653, a
State advisory panel on the education of children with disabilities.
(b) The advisory panel must be appointed by the Governor or any other official
authorized under State law to make those appointments.
(c) If a State has an existing advisory panel that can perform the functions in § 300.652,
the State may modify the existing panel so that it fulfills all of the requirements of
§§ 300.650–300.653, instead of establishing a new advisory panel.
§ 300.651 Membership.
(a) General. The membership of the State advisory panel must consist of members
appointed by the Governor, or any other official authorized under State law to make these
appointments, that is representative of the State population and that is composed of
individuals involved in, or concerned with the education of children with disabilities,
including—
(1) Parents of children with disabilities;
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of higher education that prepare special education and
related services personnel;
(5) State and local education officials;
(6) Administrators of programs for children with disabilities;
(7) Representatives of other State agencies involved in the financing or delivery of
related services to children with disabilities;
(8) Representatives of private schools and public charter schools;
(9) At least one representative of a vocational, community, or business organization
concerned with the provision of transition services to children with disabilities; and
(10) Representatives from the State juvenile and adult corrections agencies.
(b) Special rule. A majority of the members of the panel must be individuals with
disabilities or parents of children with disabilities.
§ 300.652 Advisory panel functions.
(a) General. The State advisory panel shall—
(1) Advise the SEA of unmet needs within the State in the education of children with
disabilities;
(2) Comment publicly on any rules or regulations proposed by the State regarding the
education of children with disabilities;
(3) Advise the SEA in developing evaluations and reporting on data to the Secretary
under section 618 of the Act;
(4) Advise the SEA in developing corrective action plans to address findings identified in
Federal monitoring reports under Part B of the Act; and
(5) Advise the SEA in developing and implementing policies relating to the coordination
of services for children with disabilities.
(b) Advising on eligible students with disabilities in adult prisons. The advisory panel
also shall advise on the education of eligible students with disabilities who have been
convicted as adults and incarcerated in adult prisons, even if, consistent with § 300.600(d), a
State assigns general supervision responsibility for those students to a public agency other
than an SEA.
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§ 300.653 Advisory panel procedures.
(a) The advisory panel shall meet as often as necessary to conduct its business.
(b) By July 1 of each year, the advisory panel shall submit an annual report of panel
activities and suggestions to the SEA. This report must be made available to the public in a
manner consistent with other public reporting requirements of Part B of the Act.
(c) Official minutes must be kept on all panel meetings and must be made available to the
public on request.
(d) All advisory panel meetings and agenda items must be announced enough in advance
of the meeting to afford interested parties a reasonable opportunity to attend. Meetings must
be open to the public.
(e) Interpreters and other necessary services must be provided at panel meetings for panel
members or participants. The State may pay for these services from funds under § 300.620.
(f) The advisory panel shall serve without compensation but the State must reimburse the
panel for reasonable and necessary expenses for attending meetings and performing duties.
The State may use funds under § 300.620 for this purpose.
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Discipline Procedures
§ 300.519 Change of placement for disciplinary removals.
For purposes of removals of a child with a disability from the child’s current educational
placement under §§ 300.520–300.529, a change of placement occurs if—
(a) The removal is for more than 10 consecutive school days; or
(b) The child is subjected to a series of removals that constitute a pattern because they
cumulate to more than 10 school days in a school year, and because of factors such as the
length of each removal, the total amount of time the child is removed, and the proximity of
the removals to one another.
§ 300.520 Authority of school personnel.
(a) School personnel may order—
(1)(i) To the extent removal would be applied to children without disabilities, the
removal of a child with a disability from the child’s current placement for not more than 10
consecutive school days for any violation of school rules, and additional removals of not
more than 10 consecutive school days in that same school year for separate incidents of
misconduct (as long as those removals do not constitute a change of placement under
§ 300.519(b));
(ii) After a child with a disability has been removed from his or her current placement for
more than 10 school days in the same school year, during any subsequent days of removal
the public agency must provide services to the extent required under § 300.121(d); and
(2) A change in placement of a child with a disability to an appropriate interim
alternative educational setting for the same amount of time that a child without a disability
would be subject to discipline, but for not more than 45 days, if—
(i) The child carries a weapon to school or to a school function under the jurisdiction of a
State or a local educational agency; or
(ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a
controlled substance while at school or a school function under the jurisdiction of a State or
local educational agency.
(b)(1) Either before or not later than 10 business days after either first removing the child
for more than 10 school days in a school year or commencing a removal that constitutes a
change of placement under § 300.519, including the action described in paragraph (a)(2) of
this section—
(i) If the LEA did not conduct a functional behavioral assessment and implement a
behavioral intervention plan for the child before the behavior that resulted in the removal
described in paragraph (a) of this section, the agency shall convene an IEP meeting to
develop an assessment plan.
(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to
review the plan and its implementation, and, modify the plan and its implementation as
necessary, to address the behavior.
(2) As soon as practicable after developing the plan described in paragraph (b)(1)(i) of
this section, and completing the assessments required by the plan, the LEA shall convene an
IEP meeting to develop appropriate behavioral interventions to address that behavior and
shall implement those interventions.
(c)(1) If subsequently, a child with a disability who has a behavioral intervention plan
and who has been removed from the child’s current educational placement for more than 10
school days in a school year is subjected to a removal that does not constitute a change of
placement under § 300.519, the IEP team members shall review the behavioral intervention
plan and its implementation to determine if modifications are necessary.
(2) If one or more of the team members believe that modifications are needed, the team
shall meet to modify the plan and its implementation, to the extent the team determines
necessary.
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(d) For purposes of this section, the following definitions apply:
(1) Controlled substance means a drug or other substance identified under schedules I, II,
III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug—
(i) Means a controlled substance; but
(ii) Does not include a substance that is legally possessed or used under the supervision
of a licensed health-care professional or that is legally possessed or used under any other
authority under that Act or under any other provision of Federal law.
(3) Weapon has the meaning given the term ‘‘dangerous weapon’’ under paragraph (2) of
the first subsection (g) of section 930 of title 18, United States Code.
§ 300.522 Determination of setting.
(a) General. The interim alternative educational setting referred to in § 300.520(a)(2)
must be determined by the IEP team.
(b) Additional requirements. Any interim alternative educational setting in which a child
is placed under §§ 300.520(a)(2) or 300.521 must—
(1) Be selected so as to enable the child to continue to progress in the general curriculum,
although in another setting, and to continue to receive those services and modifications,
including those described in the child’s current IEP, that will enable the child to meet the
goals set out in that IEP; and
(2) Include services and modifications to address the behavior described in
§§ 300.520(a)(2) or 300.521, that are designed to prevent the behavior from recurring.
§ 300.523 Manifestation determination review.
(a) General. If an action is contemplated regarding behavior described in
§§ 300.520(a)(2) or 300.521, or involving a removal that constitutes a change of placement
under § 300.519 for a child with a disability who has engaged in other behavior that violated
any rule or code of conduct of the LEA that applies to all children—
(1) Not later than the date on which the decision to take that action is made, the parents
must be notified of that decision and provided the procedural safeguards notice described in
§ 300.504; and
(2) Immediately, if possible, but in no case later than 10 school days after the date on
which the decision to take that action is made, a review must be conducted of the relationship
between the child’s disability and the behavior subject to the disciplinary action.
(b) Individuals to carry out review. A review described in paragraph (a) of this section
must be conducted by the IEP team and other qualified personnel in a meeting.
(c) Conduct of review. In carrying out a review described in paragraph (a) of this section,
the IEP team and other qualified personnel may determine that the behavior of the child was
not a manifestation of the child’s disability only if the IEP team and other qualified
personnel—
(1) First consider, in terms of the behavior subject to disciplinary action, all relevant
information, including —
(i) Evaluation and diagnostic results, including the results or other relevant information
supplied by the parents of the child;
(ii) Observations of the child; and
(iii) The child’s IEP and placement; and
(2) Then determine that—
(i) In relationship to the behavior subject to disciplinary action, the child’s IEP and
placement were appropriate and the special education services, supplementary aids and
services, and behavior intervention strategies were provided consistent with the child’s IEP
and placement;
(ii) The child’s disability did not impair the ability of the child to understand the impact
and consequences of the behavior subject to disciplinary action; and
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(iii) The child’s disability did not impair the ability of the child to control the behavior
subject to disciplinary action.
(d) Decision. If the IEP team and other qualified personnel determine that any of the
standards in paragraph (c)(2) of this section were not met, the behavior must be considered a
manifestation of the child’s disability.
(e) Meeting. The review described in paragraph (a) of this section may be conducted at
the same IEP meeting that is convened under § 300.520(b).
(f) Deficiencies in IEP or placement. If, in the review in paragraphs (b) and (c) of this
section, a public agency identifies deficiencies in the child’s IEP or placement or in their
implementation, it must take immediate steps to remedy those deficiencies.
§ 300.524 Determination that behavior was not manifestation of disability.
(a) General. If the result of the review described in § 300.523 is a determination,
consistent with § 300.523(d), that the behavior of the child with a disability was not a
manifestation of the child’s disability, the relevant disciplinary procedures applicable to
children without disabilities may be applied to the child in the same manner in which they
would be applied to children without disabilities, except as provided in § 300.121(d).
(b) Additional requirement. If the public agency initiates disciplinary procedures
applicable to all children, the agency shall ensure that the special education and disciplinary
records of the child with a disability are transmitted for consideration by the person or
persons making the final determination regarding the disciplinary action.
(c) Child’s status during due process proceedings. Except as provided in § 300.526,
§ 300.514 applies if a parent requests a hearing to challenge a determination, made through
the review described in § 300.523, that the behavior of the child was not a manifestation of
the child’s disability.
§ 300.525 Parent appeal.
(a) General. (1) If the child’s parent disagrees with a determination that the child’s
behavior was not a manifestation of the child’s disability or with any decision regarding
placement under §§ 300.520–300.528, the parent may request a hearing.
(2) The State or local educational agency shall arrange for an expedited hearing in any
case described in paragraph (a)(1) of this section if a hearing is requested by a parent.
(b) Review of decision. (1) In reviewing a decision with respect to the manifestation
determination, the hearing officer shall determine whether the public agency has
demonstrated that the child’s behavior was not a manifestation of the child’s disability
consistent with the requirements of § 300.523(d).
(2) In reviewing a decision under § 300.520(a)(2) to place the child in an interim
alternative educational setting, the hearing officer shall apply the standards in § 300.521.
§ 300.526 Placement during appeals.
(a) General. If a parent requests a hearing or an appeal regarding a disciplinary action
described in § 300.520(a)(2) or 300.521 to challenge the interim alternative educational
setting or the manifestation determination, the child must remain in the interim alternative
educational setting pending the decision of the hearing officer or until the expiration of the
time period provided for in § 300.520(a)(2) or 300.521, whichever occurs first, unless the
parent and the State agency or local educational agency agree otherwise.
(b) Current placement. If a child is placed in an interim alternative educational setting
pursuant to § 300.520(a)(2) or 300.521 and school personnel propose to change the child’s
placement after expiration of the interim alternative placement, during the pendency of any
proceeding to challenge the proposed change in placement the child must remain in the
current placement (the child’s placement prior to the interim alternative educational setting),
except as provided in paragraph (c) of this section.
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(c) Expedited hearing. (1) If school personnel maintain that it is dangerous for the child
to be in the current placement (placement prior to removal to the interim alternative
education setting) during the pendency of the due process proceedings, the LEA may request
an expedited due process hearing.
(2) In determining whether the child may be placed in the alternative educational setting
or in another appropriate placement ordered by the hearing officer, the hearing officer shall
apply the standards in § 300.521.
(3) A placement ordered pursuant to paragraph (c)(2) of this section may not be longer
than 45 days.
(4) The procedure in paragraph (c) of this section may be repeated, as necessary.
§ 300.527 Protections for children not yet eligible for special education and related
services.
(a) General. A child who has not been determined to be eligible for special education and
related services under this part and who has engaged in behavior that violated any rule or
code of conduct of the local educational agency, including any behavior described in
§§ 300.520 or 300.521, may assert any of the protections provided for in this part if the LEA
had knowledge (as determined in accordance with paragraph (b) of this section) that the child
was a child with a disability before the behavior that precipitated the disciplinary action
occurred.
(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a
child with a disability if—
(1) The parent of the child has expressed concern in writing (or orally if the parent does
not know how to write or has a disability that prevents a written statement) to personnel of
the appropriate educational agency that the child is in need of special education and related
services;
(2) The behavior or performance of the child demonstrates the need for these services, in
accordance with § 300.7;
(3) The parent of the child has requested an evaluation of the child pursuant to
§§ 300.530–300.536; or
(4) The teacher of the child, or other personnel of the local educational agency, has
expressed concern about the behavior or performance of the child to the director of special
education of the agency or to other personnel in accordance with the agency’s established
child find or special education referral system.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph
(b) of this section if, as a result of receiving the information specified in that paragraph, the
agency—
(1) Either—
(i) Conducted an evaluation under §§ 300.530–300.536, and determined that the child
was not a child with a disability under this part; or
(ii) Determined that an evaluation was not necessary; and
(2) Provided notice to the child’s parents of its determination under paragraph (c)(1) of
this section, consistent with § 300.503.
(d) Conditions that apply if no basis of knowledge. (1) General. If an LEA does not have
knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c)
of this section) prior to taking disciplinary measures against the child, the child may be
subjected to the same disciplinary measures as measures applied to children without
disabilities who engaged in comparable behaviors consistent with paragraph (d)(2) of this
section.
(2) Limitations. (i) If a request is made for an evaluation of a child during the time period
in which the child is subjected to disciplinary measures under § 300.520 or 300.521, the
evaluation must be conducted in an expedited manner.
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(ii) Until the evaluation is completed, the child remains in the educational placement
determined by school authorities, which can include suspension or expulsion without
educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration
information from the evaluation conducted by the agency and information provided by the
parents, the agency shall provide special education and related services in accordance with
the provisions of this part, including the requirements of §§ 300.520–300.529 and section
612(a)(1)(A) of the Act.
§ 300.529 Referral to and action by law enforcement and judicial authorities.
(a) Nothing in this part prohibits an agency from reporting a crime committed by a child
with a disability to appropriate authorities or to prevent State law enforcement and judicial
authorities from exercising their responsibilities with regard to the application of Federal and
State law to crimes committed by a child with a disability.
(b)(1) An agency reporting a crime committed by a child with a disability shall ensure
that copies of the special education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom it reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child’s
special education and disciplinary records only to the extent that the transmission is
permitted by the Family Educational Rights and Privacy Act.
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APPENDIX A TO PART 300 — NOTICE OF INTERPRETATION
I. Involvement and Progress of Each Child With a Disability in the General
Curriculum
1. What are the major Part B IEP requirements that govern the involvement and progress
of children with disabilities in the general curriculum?
2. Must a child’s IEP address his or her involvement in the general curriculum, regardless
of the nature and severity of the child’s disability and the setting in which the child is
educated?
3. What must public agencies do to meet the requirements at §§ 300.344(a)(2) and
300.346(d) regarding the participation of a ‘‘regular education teacher’’ in the development
review, and revision of the IEPs, for children age 3 through 5 who are receiving special
education and related services?
4. Must the measurable annual goals in a child’s IEP address all areas of the general
curriculum, or only those areas in which the child’s involvement and progress are affected by
the child’s disability?
II. Involvement of Parents and Students
5. What is the role of the parents, including surrogate parents, in decisions regarding the
educational program of their children?
6. What are the Part B requirements regarding the participation of a student (child) with a
disability in an IEP meeting?
7. Must the public agency inform the parents of who will be at the IEP meeting?
8. Do parents have the right to a copy of their child’s IEP?
9. What is a public agency’s responsibility if it is not possible to reach consensus on what
services should be included in a child’s IEP?
10. Does Part B require that public agencies inform parents regarding the educational
progress of their children with disabilities?
III. Preparing Students With Disabilities for Employment and Other Post-School
Experiences
11. What must the IEP team do to meet the requirements that the IEP include a statement
of ‘‘transition service needs’’ beginning at age 14 (§ 300.347(b)(1), and a statement of
‘‘needed transition services’’ beginning at age 16 (§ 300.347(b)(2)?
12. Must the IEP for each student with a disability, beginning no later than age 16,
include all ‘‘needed transition services,’’ as identified by the IEP team and consistent with
the definition at § 300.29, even if an agency other than the public agency will provide those
services? What is the public agency’s responsibility if another agency fails to provide
agreed-upon transition services?
13. Under what circumstances must a public agency invite representatives from other
agencies to an IEP meeting at which a child’s need for transition services will be considered?
IV. Other Questions Regarding Implementation of Idea [sic]
14. For a child with a disability receiving special education for the first time, when must
an IEP be developed—before placement or after placement?
15. Who is responsible for ensuring the development of IEPs for children with disabilities
served by a public agency other than an LEA?
16. For a child placed out of State by an educational or non-educational State or local
agency, is the placing or receiving State responsible for the child’s IEP?
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17. If a disabled child has been receiving special education from one public agency and
transfers to another public agency in the same State, must the new public agency develop an
IEP before the child can be placed in a special education program?
18. What timelines apply to the development and implementation of an initial IEP for a
child with a disability?
19. Must a public agency hold separate meetings to determine a child’s eligibility for
special education and related services, develop the child’s IEP, and determine the child’s
placement, or may the agency meet all of these requirements in a single meeting?
20. How frequently must a public agency conduct meetings to review, and if appropriate
revise, the IEP for each child with a disability?
21. May IEP meetings be audio or videotape-recorded?
22. Who can serve as the representative of the public agency at an IEP meeting?
23. For a child with a disability being considered for initial placement in special
education, which teacher or teachers should attend the IEP meeting?
24. What is the role of a regular education teacher in the development, review, and
revision of the IEP for a child who is, or may be, participating in the regular education
environment?
25. If a child with a disability attends several regular classes, must all of the child’s
regular education teachers be members of the child’s IEP team?
26. How should a public agency determine which regular education teacher and special
education teacher will members [sic] of the IEP team for a particular child with a disability?
27. For a child whose primary disability is a speech impairment, may a public agency
meet its responsibility under § 300.344(a)(3) to ensure that the IEP team includes ‘‘at least
one special education teacher, or, if appropriate, at least one special education provider of the
child’’ by including a speech-language pathologist on the IEP team?
28. Do public agencies and parents have the option of having any individual of their
choice attend a child’s IEP meeting as participants on their child’s IEP team?
29. Can parents or public agencies bring their attorneys to IEP meetings, and, if so under
what circumstances? Are attorney’s fees available for parents’ attorneys if the parents are
prevailing parties in actions or proceedings brought under Part B?
30. Must related services personnel attend IEP meetings?
31. Must the public agency ensure that all services specified in a child’s IEP are
provided?
32. Is it permissible for an agency to have the IEP completed before the IEP meeting
begins?
33. Must a public agency include transportation in a child’s IEP as a related service?
34. Must a public agency provide related services that are required to assist a child with a
disability to benefit from special education, whether or not those services are included in the
list of related services in § 300.24?
35. Must the IEP specify the amount of services or may it simply list the services to be
provided?
36. Under what circumstances is a public agency required to permit a child with a
disability to use a school-purchased assistive technology device in the child’s home or in
another setting?
37. Can the IEP team also function as the group making the placement decision for a
child with a disability?
38. If a child’s IEP includes behavioral strategies to address a particular behavior, can a
child ever be suspended for engaging in that behavior?
39. If a child’s behavior in the regular classroom, even with appropriate interventions,
would significantly impair the learning of others, can the group that makes the placement
decision determine that placement in the regular classroom is inappropriate for that child?
40. May school personnel during a school year implement more than one short-term
removal of a child with disabilities from his or her classroom or school for misconduct?
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Authority: Part B of the Individuals with Disabilities Education Act (20 U.S.C. 1401, et
seq.), unless otherwise noted.
Individualized Education Programs (IEPS) and Other Selected Implementation Issues
Interpretation of IEP and Other selected Requirements under Part B of the Individuals
with Disabilities Education Act (IDEA; Part B)
Introduction
The IEP requirements under Part B of the IDEA emphasize the importance of three core
concepts: (1) the involvement and progress of each child with a disability in the general
curriculum including addressing the unique needs that arise out of the child’s disability;
(2) the involvement of parents and students, together with regular and special education
personnel, in making individual decisions to support each student’s (child’s) educational
success, and (3) the preparation of students with disabilities for employment and other postschool
activities.
The first three sections of this Appendix (I–III) provide guidance regarding the IEP
requirements as they relate to the three core concepts described above. Section IV addresses
other questions regarding the development and content of IEPs, including questions about the
timelines and responsibility for developing and implementing IEPs, participation in IEP
meetings, and IEP content. Section IV also addresses questions on other selected
requirements under IDEA.
I. Involvement and Progress of Each Child With a Disability in the General Curriculum
In enacting the IDEA Amendments of 1997, the Congress found that research,
demonstration, and practice over the past 20 years in special education and related disciplines
have demonstrated that an effective educational system now and in the future must maintain
high academic standards and clear performance goals for children with disabilities, consistent
with the standards and expectations for all students in the educational system, and provide
for appropriate and effective strategies and methods to ensure that students who are children
with disabilities have maximum opportunities to achieve those standards and goals. [Section
651(a)(6)(A) of the Act.]
Accordingly, the evaluation and IEP provisions of Part B place great emphasis on the
involvement and progress of children with disabilities in the general curriculum. (The term
‘‘general curriculum,’’ as used in these regulations, including this Appendix, refers to the
curriculum that is used with nondisabled children.)
While the Act and regulations recognize that IEP teams must make individualized
decisions about the special education and related services, and supplementary aids and
services, provided to each child with a disability, they are driven by IDEA’s strong
preference that, to the maximum extent appropriate, children with disabilities be educated in
regular classes with their nondisabled peers with appropriate supplementary aids and
services.
In many cases, children with disabilities will need appropriate supports in order to
successfully progress in the general curriculum, participate in State and district-wide
assessment programs, achieve the measurable goals in their IEPs, and be educated together
with their nondisabled peers. Accordingly, the Act requires the IEP team to determine, and
the public agency to provide, the accommodations, modifications, supports, and
supplementary aids and services, needed by each child with a disability to successfully be
involved in and progress in the general curriculum achieve the goals of the IEP, and
successfully demonstrate his or her competencies in State and district-wide assessments.
1. What are the major Part B IEP requirements that govern the involvement and progress
of children with disabilities in the general curriculum?
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Present Levels of Educational Performance
Section 300.347(a)(1) requires that the IEP for each child with a disability include ‘‘* * *
a statement of the child’s present levels of educational performance, including—(i) how the
child’s disability affects the child’s involvement and progress in the general curriculum; or
(ii) for preschool children, as appropriate, how the child’s disability affects the child’s
participation in appropriate activities * * *’’ (‘‘Appropriate activities’’ in this context refers
to age-relevant developmental abilities or milestones that typically developing children of the
same age would be performing or would have achieved.)
The IEP team’s determination of how each child’s disability affects the child’s
involvement and progress in the general curriculum is a primary consideration in the
development of the child’s IEP. In assessing children with disabilities, school districts may
use a variety of assessment techniques to determine the extent to which these children can be
involved and progress in the general curriculum, such as criterion-referenced tests, standard
achievement tests, diagnostic tests, other tests, or any combination of the above.
The purpose of using these assessments is to determine the child’s present levels of
educational performance and areas of need arising from the child’s disability so that
approaches for ensuring the child’s involvement and progress in the general curriculum and
any needed adaptations or modifications to that curriculum can be identified.
Measurable Annual Goals, including Benchmarks or Short-term objectives
Measurable annual goals, including benchmarks or short-term objectives, are critical to
the strategic planning process used to develop and implement the IEP for each child with a
disability. Once the IEP team has developed measurable annual goals for a child, the team
(1) can develop strategies that will be most effective in realizing those goals and (2) must
develop either measurable, intermediate steps (short-term objectives) or major milestones
(benchmarks) that will enable parents, students, and educators to monitor progress during the
year, and, if appropriate, to revise the IEP consistent with the student’s instructional needs.
The strong emphasis in Part B on linking the educational program of children with
disabilities to the general curriculum is reflected in § 300.347(a)(2), which requires that the
IEP include:
a statement of measurable annual goals, including benchmarks or short-term objectives,
related to—(i) meeting the child’s needs that result from the child’s disability to enable the
child to be involved in and progress in the general curriculum; and (ii) meeting each of the
child’s other educational needs that result from the child’s disability.
As noted above, each annual goal must include either short-term objectives or
benchmarks. The purpose of both is to enable a child’s teacher(s), parents, and others
involved in developing and implementing the child’s IEP, to gauge, at intermediate times
during the year, how well the child is progressing toward achievement of the annual goal.
IEP teams may continue to develop short-term instructional objectives, that generally break
the skills described in the annual goal down into discrete components. The revised statute
and regulations also provide that, as an alternative, IEP teams may develop benchmarks,
which can be thought of as describing the amount of progress the child is expected to make
within specified segments of the year. Generally, benchmarks establish expected
performance levels that allow for regular checks of progress that coincide with the reporting
periods for informing parents of their child’s progress toward achieving the annual goals. An
IEP team may use either short term objectives or benchmarks or a combination of the two
depending on the nature of the annual goals and the needs of the child.
Special Education and Related Services and Supplementary Aids and Services
The requirements regarding services provided to address a child’s present levels of
educational performance and to make progress toward the identified goals reinforce the
emphasis on progress in the general curriculum, as well as maximizing the extent to which
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children with disabilities are educated with nondisabled children. Section 300.347(a)(3)
requires that the IEP include:
a statement of the special education and related services and supplementary aids and services
to be provided to the child, or on behalf of the child, and a statement of the program
modifications or supports for school personnel that will be provided for the child—(i) to
advance appropriately toward attaining the annual goals; (ii) to be involved and progress in
the general curriculum * * * and to participate in extracurricular and other nonacademic
activities; and (iii) to be educated and participate with other children with disabilities and
nondisabled children in [extracurricular and other nonacademic activities] * * * [Italics
added.]
Extent to Which Child Will Participate With Nondisabled Children
Section 300.347(a)(4) requires that each child’s IEP include ‘‘An explanation of the
extent, if any, to which the child will not participate with nondisabled children in the regular
class and in [extracurricular and other nonacademic] activities * * *’’ This is consistent with
the least restrictive environment (LRE) provisions at §§ 300.550–300.553, which include
requirements that:
(1) each child with a disability be educated with nondisabled children to the maximum
extent appropriate (§ 300.550(b)(1));
(2) each child with a disability be removed from the regular educational environment
only when the nature or severity of the child’s disability is such that education in regular
classes with the use of supplementary aids and services cannot be achieved satisfactorily
(§ 300.550(b)(1)); and
(3) to the maximum extent appropriate to the child’s needs, each child with a disability
participates with nondisabled children in nonacademic and extracurricular services and
activities (§ 300.553).
All services and educational placements under Part B must be individually determined in
light of each child’s unique abilities and needs, to reasonably promote the child’s educational
success. Placing children with disabilities in this manner should enable each disabled child to
meet high expectations in the future.
Although Part B requires that a child with a disability not be removed from the regular
educational environment if the child’s education can be achieved satisfactorily in regular
classes with the use of supplementary aids and services, Part B’s LRE principle is intended to
ensure that a child with a disability is served in a setting where the child can be educated
successfully. Even though IDEA does not mandate regular class placement for every
disabled student, IDEA presumes that the first placement option considered for each disabled
student by the student’s placement team, which must include the parent, is the school the
child would attend if not disabled, with appropriate supplementary aids and services to
facilitate such placement. Thus, before a disabled child can be placed outside of the regular
educational environment, the full range of supplementary aids and services that if provided
would facilitate the student’s placement in the regular classroom setting must be considered.
Following that consideration, if a determination is made that particular disabled student
cannot be educated satisfactorily in the regular educational environment, even with the
provision of appropriate supplementary aids and services, that student then could be placed
in a setting other than the regular classroom. Later, if it becomes apparent that the child’s IEP
can be carried out in a less restrictive setting, with the provision of appropriate
supplementary aids and services, if needed, Part B would require that the child’s placement
be changed from the more restrictive setting to a less restrictive setting. In all cases,
placement decisions must be individually determined on the basis of each child’s abilities
and needs, and not solely on factors such as category of disability, significance of disability,
availability of special education and related services, configuration of the service delivery
system, availability of space, or administrative convenience. Rather, each student’s IEP
forms the basis for the placement decision.
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Further, a student need not fail in the regular classroom before another placement can be
considered. Conversely, IDEA does not require that a student demonstrate achievement of a
specific performance level as a prerequisite for placement into a regular classroom.
Participation in State or District-Wide Assessments of Student Achievement
Consistent with § 300.138(a), which sets forth a presumption that children with
disabilities will be included in general State and district-wide assessment programs, and
provided with appropriate accommodations if necessary, § 300.347(a)(5) requires that the
IEP for each student with a disability include: ‘‘(i) a statement of any individual
modifications in the administration of State or district-wide assessments of student
achievement that are needed in order for the child to participate in the assessment; and (ii) if
the IEP team determines that the child will not participate in a particular State or districtwide
assessment of student achievement (or part of an assessment of student achievement), a
statement of—(A) Why that assessment is not appropriate for the child; and (B) How the
child will be assessed.’’
Regular Education Teacher Participation in the Development, Review, and Revision of IEPs
Very often, regular education teachers play a central role in the education of children
with disabilities (H. Rep. No. 105–95, p. 103 (1997); S. Rep. No. 105–17, p. 23 (1997)) and
have important expertise regarding the general curriculum and the general education
environment. Further, with the emphasis on involvement and progress in the general
curriculum added by the IDEA Amendments of 1997, regular education teachers have an
increasingly critical role (together with special education and related services personnel) in
implementing the program of FAPE for most children with disabilities, as described in their
IEPs.
Accordingly, the IDEA Amendments of 1997 added a requirement that each child’s IEP
team must include at least one regular education teacher of the child, if the child is, or may
be, participating in the regular education environment (see § 300.344(a)(2)). (See also
§§ 300.346(d) on the role of a regular education teacher in the development, review and
revision of IEPs.)
2. Must a child’s IEP address his or her involvement in the general curriculum, regardless
of the nature and severity of the child’s disability and the setting in which the child is
educated?
Yes. The IEP for each child with a disability (including children who are educated in
separate classrooms or schools) must address how the child will be involved and progress in
the general curriculum. However, the Part B regulations recognize that some children have
other educational needs resulting from their disability that also must be met, even though
those needs are not directly linked to participation in the general curriculum.
Accordingly, § 300.347(a)(1)(2) requires that each child’s IEP include:
A statement of measurable annual goals, including benchmarks or short-term objectives
related to—(i) Meeting the child’s needs that result from the child’s disability to enable the
child to be involved in and progress in the general curriculum; and (ii) meeting each of the
child’s other educational needs that result from the child’s disability. [Italics added.]
Thus, the IEP team for each child with a disability must make an individualized
determination regarding (1) how the child will be involved and progress in the general
curriculum and what needs that result from the child’s disability must be met to facilitate that
participation; (2) whether the child has any other educational needs resulting from his or her
disability that also must be met; and (3) what special education and other services and
supports must be described in the child’s IEP to address both sets of needs (consistent with
§ 300.347(a)). For example, if the IEP team determines that in order for a child who is deaf
to participate in the general curriculum he or she needs sign language and materials which
reflect his or her language development, those needs (relating to the child’s participation in
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the general curriculum) must be addressed in the child’s IEP. In addition, if the team
determines that the child also needs to expand his or her vocabulary in sign language that
service must also be addressed in the applicable components of the child’s IEP. The IEP
team may also wish to consider whether there is a need for members of the child’s family to
receive training in sign language in order for the child to receive FAPE.
3. What must public agencies do to meet the requirements at §§ 300.344(a)(2) and
300.346(d) regarding the participation of a ‘‘regular education teacher’’ in the development,
review, and revision of IEPs, for children aged 3 through 5 who are receiving preschool
special education services?
If a public agency provides ‘‘regular education’’ preschool services to nondisabled
children, then the requirements of §§ 300.344(a)(2) and 300.346(d) apply as they do in the
case of older children with disabilities. If a public agency makes kindergarten available to
nondisabled children, then a regular education kindergarten teacher could appropriately be
the regular education teacher who would be a member of the IEP team, and, as appropriate,
participate in IEP meetings, for a kindergarten-aged child who is, or may be, participating in
the regular education environment.
If a public agency does not provide regular preschool education services to nondisabled
children, the agency could designate an individual who, under State standards, is qualified to
serve nondisabled children of the same age.
4. Must the measurable annual goals in a child’s IEP address all areas of the general
curriculum, or only those areas in which the child’s involvement and progress are affected by
the child’s disability?
Section 300.347(a)(2) requires that each child’s IEP include ‘‘A statement of measurable
annual goals, including benchmarks or short-term objectives, related to—(i) meeting the
child’s needs that result from the child’s disability to enable the child to be involved in and
progress in the general curriculum * * *; and (ii) meeting each of the child’s other
educational needs that result from the child’s disability. . . .’’ (Italics added).
Thus, a public agency is not required to include in an IEP annual goals that relate to areas
of the general curriculum in which the child’s disability does not affect the child’s ability to
be involved in and progress in the general curriculum. If a child with a disability needs only
modifications or accommodations in order to progress in an area of the general curriculum,
the IEP does not need to include a goal for that area; however, the IEP would need to specify
those modifications or accommodations.
Public agencies often require all children, including children with disabilities, to
demonstrate mastery in a given area of the general curriculum before allowing them to
progress to the next level or grade in that area. Thus, in order to ensure that each child with a
disability can effectively demonstrate competencies in an applicable area of the general
curriculum, it is important for the IEP team to consider the accommodations and
modifications that the child needs to assist him or her in demonstrating progress in that area.
II. Involvement of Parents and Students
The Congressional Committee Reports on the IDEA Amendments of 1997 express the
view that the Amendments provide an opportunity for strengthening the role of parents, and
emphasize that one of the purposes of the Amendments is to expand opportunities for parents
and key public agency staff (e.g., special education, related services, regular education, and
early intervention service providers, and other personnel) to work in new partnerships at both
the State and local levels (H. Rep. 105– 95, p. 82 (1997); S. Rep. No. 105–17, p. 4 and 5
(1997)). Accordingly, the IDEA Amendments of 1997 require that parents have an
opportunity to participate in meetings with respect to the identification, evaluation, and
educational placement of the child, and the provision of FAPE to the child. (§ 300.501(a)(2)).
Thus, parents must now be part of: (1) the group that determines what additional data are
needed as part of an evaluation of their child (§ 300.533(a)(1)); (2) the team that determines
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their child’s eligibility (§ 300.534(a)(1)); and (3) the group that makes decisions on the
educational placement of their child (§ 300.501(c)).
In addition, the concerns of parents and the information that they provide regarding their
children must be considered in developing and reviewing their children’s IEPs
(§§ 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and the requirements for keeping parents
informed about the educational progress of their children, particularly as it relates to their
progress in the general curriculum, have been strengthened (§ 300.347(a)(7)).
The IDEA Amendments of 1997 also contain provisions that greatly strengthen the
involvement of students with disabilities in decisions regarding their own futures, to facilitate
movement from school to post-school activities. For example, those amendments
(1) retained, essentially verbatim, the ‘‘transition services’’ requirements from the IDEA
Amendments of 1990 (which provide that a statement of needed transition services must be
in the IEP of each student with a disability, beginning no later than age 16); and
(2) significantly expanded those provisions by adding a new annual requirement for the IEP
to include ‘‘transition planning’’ activities for students beginning at age 14. (See section IV
of this appendix for a description of the transition services requirements and definition.)
With respect to student involvement in decisions regarding transition services,
§ 300.344(b) provides that (1) ‘‘the public agency shall invite a student with a disability of
any age to attend his or her IEP meeting if a purpose of the meeting will be the consideration
of—(i) The student’s transition services needs under § 300.347(b)(1); or (ii) The needed
transition services for the student under § 300.347(b)(2); or (iii) Both;’’ and (2) ‘‘If the
student does not attend the IEP meeting, the public agency shall take other steps to ensure
that the student’s preferences and interests are considered.’’ (§ 300.344(b)(2)).
The IDEA Amendments of 1997 also give States the authority to elect to transfer the
rights accorded to parents under Part B to each student with a disability upon reaching the
age of majority under State law (if the student has not been determined incompetent under
State law) (§ 300.517). (Part B requires that if the rights transfer to the student, the public
agency must provide any notice required under Part B to both the student and the parents.) If
the State elects to provide for the transfer of rights from the parents to the student at the age
of majority, the IEP must, beginning at least one year before a student reaches the age of
majority under State law, include a statement that the student has been informed of any rights
that will transfer to him or her upon reaching the age of majority. (§ 300.347(c)).
The IDEA Amendments of 1997 also permit, but do not require, States to establish a
procedure for appointing the parent, or another appropriate individual if the parent is not
available, to represent the educational interests of a student with a disability who has reached
the age of majority under State law and has not been determined to be incompetent, but who
is determined not to have the ability to provide informed consent with respect to his or her
educational program.
5. What is the role of the parents, including surrogate parents, in decisions regarding the
educational program of their children?
The parents of a child with a disability are expected to be equal participants along with
school personnel, in developing, reviewing, and revising the IEP for their child. This is an
active role in which the parents (1) provide critical information regarding the strengths of
their child and express their concerns for enhancing the education of their child;
(2) participate in discussions about the child’s need for special education and related services
and supplementary aids and services; and (3) join with the other participants in deciding how
the child will be involved and progress in the general curriculum and participate in State and
district-wide assessments, and what services the agency will provide to the child and in what
setting.
As previously noted in the introduction to section II of this Appendix, Part B specifically
provides that parents of children with disabilities—
• Have an opportunity to participate in meetings with respect to the identification,
evaluation, and educational placement of their child, and the provision of FAPE to the child
(including IEP meetings) (§§300.501(b), 300.344(a)(1), and 300.517;
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• Be part of the groups that determine what additional data are needed as part of an
evaluation of their child (§ 300.533(a)(1)), and determine their child’s eligibility
(§ 300.534(a)(1)) and educational placement (§ 300.501(c));
• Have their concerns and the information that they provide regarding their child
considered in developing and reviewing their child's IEPs (§§300.343(c)(iii) and
300.346(a)(1)(i) and (b)); and
• Be regularly informed (by such means as periodic report cards), as specified in their
child’s IEP, at least as often as parents are informed of their nondisabled children’s progress,
of their child’s progress toward the annual goals in the IEP and the extent to which that
progress is sufficient to enable the child to achieve the goals by the end of the year
(§300.347(a)(7)).
A surrogate parent is a person appointed to represent the interests of a child with a
disability in the educational decision-making process when no parent (as defined at § 300.20)
is known, the agency, after reasonable efforts, cannot locate the child’s parents, or the child
is a ward of the State under the laws of the State. A surrogate parent has all of the rights and
responsibilities of a parent under Part B (§ 300.515.)
6. What are the Part B requirements regarding the participation of a student (child) with a
disability in an IEP meeting?
If a purpose of an IEP meeting for a student with a disability will be the consideration of
the student’s transition services needs or needed transition services under § 300.347(b)(1) or
(2), or both, the public agency must invite the student and, as part of the notification to the
parents of the IEP meeting, inform the parents that the agency will invite the student to the
IEP meeting.
If the student does not attend, the public agency must take other steps to ensure that the
student’s preferences and interests are considered. (See § 300.344(b)).
Section § 300.517 permits, but does not require, States to transfer procedural rights under
Part B from the parents to students with disabilities who reach the age of majority under
State law, if they have not been determined to be incompetent under State law. If those rights
are to be transferred from the parents to the student, the public agency would be required to
ensure that the student has the right to participate in IEP meetings set forth for parents in
§ 300.345.
However, at the discretion of the student or the public agency, the parents also could attend
IEP meetings as ‘‘* * * individuals who have knowledge or special expertise regarding the
child * * *’’ (see § 300.344(a)(6)).
In other circumstances, a child with a disability may attend ‘‘if appropriate.’’
(§ 300.344(a)(7)). Generally, a child with a disability should attend the IEP meeting if the
parent decides that it is appropriate for the child to do so. If possible, the agency and parents
should discuss the appropriateness of the child’s participation before a decision is made, in
order to help the parents determine whether or not the child’s attendance would be (1)
helpful in developing the IEP or (2) directly beneficial to the child or both. The agency
should inform the parents before each IEP meeting—as part of notification under
§ 300.345(a)(1)—that they may invite their child to participate.
7. Must the public agency inform the parents of who will be at the IEP meeting?
Yes. In notifying parents about the meeting, the agency ‘‘must indicate the purpose, time,
and location of the meeting, and who will be in attendance.’’ (§ 300.345(b), italics added.) In
addition, if a purpose of the IEP meeting will be the consideration of a student’s transition
services needs or needed transition services under § 300.347(b)(1) or (2) or both, the notice
must also inform the parents that the agency is inviting the student, and identify any other
agency that will be invited to send a representative.
The public agency also must inform the parents of the right of the parents and the agency
to invite other individuals who have knowledge or special expertise regarding the child,
including related services personnel as appropriate to be members of the IEP team.
(§ 300.345(b)(1)(ii).)
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It also may be appropriate for the agency to ask the parents to inform the agency of any
individuals the parents will be bringing to the meeting. Parents are encouraged to let the
agency know whom they intend to bring. Such cooperation can facilitate arrangements for
the meeting, and help ensure a productive, child-centered meeting.
8. Do parents have the right to a copy of their child’s IEP?
Yes. Section 300.345(f) states that the public agency shall give the parent a copy of the
IEP at no cost to the parent.
9. What is a public agency’s responsibility if it is not possible to reach consensus on what
services should be included in a child’s IEP?
The IEP meeting serves as a communication vehicle between parents and school
personnel, and enables them, as equal participants, to make joint, informed decisions
regarding the (1) child’s needs and appropriate goals; (2) extent to which the child will be
involved in the general curriculum and participate in the regular education environment and
State and district-wide assessments; and (3) services needed to support that involvement and
participation and to achieve agreed-upon goals. Parents are considered equal partners with
school personnel in making these decisions, and the IEP team must consider the parents’
concerns and the information that they provide regarding their child in developing,
reviewing, and revising IEPs (§§ 300.343(c)(iii) and 300.346(a)(1) and (b)).
The IEP team should work toward consensus, but the public agency has ultimate
responsibility to ensure that the IEP includes the services that the child needs in order to
receive FAPE. It is not appropriate to make IEP decisions based upon a majority ‘‘vote.’’ If
the team cannot reach consensus, the public agency must provide the parents with prior
written notice of the agency’s proposals or refusals, or both, regarding the child’s educational
program, and the parents have the right to seek resolution of any disagreements by initiating
an impartial due process hearing.
Every effort should be made to resolve differences between parents and school staff
through voluntary mediation or some other informal step, without resort to a due process
hearing. However, mediation or other informal procedures may not be used to deny or delay
a parent’s right to a due process hearing, or to deny any other rights afforded under Part B.
10. Does Part B require that public agencies inform parents regarding the educational
progress of their children with disabilities?
Yes. The Part B statute and regulations include a number of provisions to help ensure that
parents are involved in decisions regarding, and are informed about, their child’s educational
progress, including the child’s progress in the general curriculum. First, the parents will be
informed regarding their child’s present levels of educational performance through the
development of the IEP. Section 300.347(a)(1) requires that each IEP include:
* * * A statement of the child’s present levels of educational performance, including—
(i) how the child’s disability affects the child’s involvement and progress in the general
curriculum; or (ii) for preschool children, as appropriate, how the disability affects the
child’s participation in appropriate activities * * *
Further, § 300.347(a)(7) sets forth new requirements for regularly informing parents
about their child’s educational progress, as regularly as parents of nondisabled children are
informed of their child’s progress. That section requires that the IEP include:
A statement of—(i) How the child’s progress toward the annual goals * * * will be
measured; and (ii) how the child’s parents will be regularly informed (by such means as
periodic report cards), at least as often as parents are informed of their nondisabled children’s
progress, of—(A) their child’s progress toward the annual goals; and (B) the extent to which
that progress is sufficient to enable the child to achieve the goals by the end of the year.
One method that public agencies could use in meeting this requirement would be to
provide periodic report cards to the parents of students with disabilities that include both
(1) the grading information provided for all children in the agency at the same intervals; and
(2) the specific information required by § 300.347(a)(7)(ii)(A) and (B).
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Finally, the parents, as part of the IEP team, will participate at least once every 12
months in a review of their child’s educational progress. Section 300.343(c) requires that a
public agency initiate and conduct a meeting, at which the IEP team:
* * * (1) Reviews the child’s IEP periodically, but not less than annually to determine
whether the annual goals for the child are being achieved; and (2) revises the IEP as
appropriate to address—(i) any lack of expected progress toward the annual goals * * * and
in the general curriculum, if appropriate; (ii) The results of any reevaluation * * *;
(iii) Information about the child provided to, or by, the parents * * *; (iv) The child’s
anticipated needs; or (v) Other matters.
III. Preparing Students With Disabilities for Employment and Other Post-School
Experiences
One of the primary purposes of the IDEA is to ‘‘* * * ensure that all children with
disabilities have available to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs and prepare them for
employment and independent living * * *’’ (§ 300.1(a)). Section 701 of the Rehabilitation
Act of 1973 describes the philosophy of independent living as including a philosophy of
consumer control, peer support, self-help, self-determination, equal access, and individual
and system advocacy, in order to maximize the leadership, empowerment, independence, and
productivity of individuals with disabilities, and the integration and full inclusion of
individuals with disabilities into the mainstream of American society. Because many students
receiving services under IDEA will also receive services under the Rehabilitation Act, it is
important, in planning for their future, to consider the impact of both statutes.
Similarly, one of the key purposes of the IDEA Amendments of 1997 was to ‘‘promote
improved educational results for children with disabilities through early intervention,
preschool, and educational experiences that prepare them for later educational challenges and
employment.’’ (H. Rep. No. 105–95, p. 82 (1997); S. Rep. No. 105–17, p. 4 (1997)).
Thus, throughout their preschool, elementary, and secondary education, the IEPs for
children with disabilities must, to the extent appropriate for each individual child, focus on
providing instruction and experiences that enable the child to prepare himself or herself for
later educational experiences and for post-school activities, including formal education, if
appropriate, employment, and independent living. Many students with disabilities will obtain
services through State vocational rehabilitation programs to ensure that their educational
goals are effectively implemented in post-school activities. Services available through
rehabilitation programs are consistent with the underlying purpose of IDEA.
Although preparation for adult life is a key component of FAPE throughout the
educational experiences of students with disabilities, Part B sets forth specific requirements
related to transition planning and transition services that must be implemented no later than
ages 14 and 16, respectively, and which require an intensified focus on that preparation as
these students begin and prepare to complete their secondary education.
11. What must the IEP team do to meet the requirements that the IEP include ‘‘a
statement of * * * transition service needs’’ beginning at age 14 (§ 300.347(b)(1)(i)),’’ and a
statement of needed transition services’’ no later than age 16 (§ 300.347(b)(2)?
Section 300.347(b)(1) requires that, beginning no later than age 14, each student’s IEP
include specific transition-related content, and, beginning no later than age 16, a statement of
needed transition services:
Beginning at age 14 and younger if appropriate, and updated annually, each student’s IEP
must include: ‘‘* * * a statement of the transition service needs of the student under the
applicable components of the student’s IEP that focuses on the student’s courses of study
(such as participation in advanced-placement courses or a vocational education program)’’
(§ 300.347(b)(1)(i)).
Beginning at age 16 (or younger, if determined appropriate by the IEP team), each
student’s IEP must include:
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‘‘* * * a statement of needed transition services for the student, including, if appropriate,
a statement of the interagency responsibilities or any needed linkages.’’ (§ 300.347(b)(2)).
The Committee Reports on the IDEA Amendments of 1997 make clear that the
requirement added to the statute in 1997 that beginning at age 14, and updated annually, the
IEP include ‘‘a statement of the transition service needs’’ is ‘‘* * * designed to augment, and
not replace,’’ the separate, preexisting requirement that the IEP include, ‘‘* * * beginning at
age 16 (or younger, if determined appropriate by the IEP team), a statement of needed
transition services * * *’’ (H. Rep. No. 105–95, p. 102 (1997); S. Rep. No. 105–17, p. 22
(1997)). As clarified by the Reports, ‘‘The purpose of [the requirement in § 300.347(b)(1)(i)]
is to focus attention on how the child’s educational program can be planned to help the child
make a successful transition to his or her goals for life after secondary school.’’ (H. Rep. No.
105–95, pp. 101–102 (1997); S. Rep. No. 105–17, p. 22 (1997)). The Reports further explain
that ‘‘[F]or example, for a child whose transition goal is a job, a transition service could be
teaching the child how to get to the job site on public transportation.’’ (H. Rep. No. 105–95,
p. 102 (1997); S. Rep. No. 105–17, p. 22 (1997)).
Thus, beginning at age 14, the IEP team, in determining appropriate measurable annual
goals (including benchmarks or short-term objectives) and services for a student, must
determine what instruction and educational experiences will assist the student to prepare for
transition from secondary education to post-secondary life.
The statement of transition service needs should relate directly to the student’s goals
beyond secondary education, and show how planned studies are linked to these goals. For
example, a student interested in exploring a career in computer science may have a statement
of transition services needs connected to technology course work, while another student’s
statement of transition services needs could describe why public bus transportation training is
important for future independence in the community.
Although the focus of the transition planning process may shift as the student approaches
graduation, the IEP team must discuss specific areas beginning at least at the age of 14 years
and review these areas annually. As noted in the Committee Reports, a disproportionate
number of students with disabilities drop out of school before they complete their secondary
education: ‘‘Too many students with disabilities are failing courses and dropping out of
school. Almost twice as many students with disabilities drop out as compared to students
without disabilities.’’ (H. Rep. No. 105–95, p. 85 (1997), S. Rep. No. 105–17, p. 5 (1997).)
To help reduce the number of students with disabilities that drop out, it is important that
the IEP team work with each student with a disability and the student’s family to select
courses of study that will be meaningful to the student’s future and motivate the student to
complete his or her education.
This requirement is distinct from the requirement, at § 300.347(b)(2), that the IEP
include: * * * beginning at age 16 (or younger, if determined appropriate by the IEP team), a
statement of needed transition services for the child, including, if appropriate, a statement of
the interagency responsibilities or any needed linkages.
The term ‘‘transition services’’ is defined at § 300.29 to mean: * * * a coordinated set of
activities for a student with a disability that—(1) Is designed within an outcome-oriented
process, that promotes movement from school to postschool activities, including postsecondary
education, vocational training, integrated employment (including supported
employment), continuing and adult education, adult services, independent living, or
community participation; (2) Is based on the individual student’s needs, taking into account
the student’s preferences and interests; and (3) Includes—(i) Instruction; (ii) Related
services; (iii) Community experiences; (iv) The development of employment and other
postschool adult living objectives; and (v) If appropriate, acquisition of daily living skills and
functional vocational evaluation.
Thus, while § 300.347(b)(1) requires that the IEP team begin by age 14 to address the
student’s need for instruction that will assist the student to prepare for transition, the IEP
must include by age 16 a statement of needed transition services under § 300.347(b)(2) that
includes a ‘‘coordinated set of activities * * *, designed within an outcome-oriented process,
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that promotes movement from school to post-school activities * * *.’’ (§ 300.29) Section
300.344(b)(3) further requires that, in implementing § 300.347(b)(1), public agencies (in
addition to required participants for all IEP meetings), must also invite a representative of
any other agency that is likely to be responsible for providing or paying for transition
services. Thus, § 300.347(b)(2) requires a broader focus on coordination of services across,
and linkages between, agencies beyond the SEA and LEA.
12. Must the IEP for each student with a disability, beginning no later than age 16,
include all ‘‘needed transition services,’’ as identified by the IEP team and consistent with
the definition at § 300.29, even if an agency other than the public agency will provide those
services? What is the public agency’s responsibility if another agency fails to provide
agreed-upon transition services?
Section 300.347(b)(2) requires that the IEP for each child with a disability, beginning no
later than age 16, or younger if determined appropriate by the IEP team, include all ‘‘needed
transition services,’’ as identified by the IEP team and consistent with the definition at
§ 300.29, regardless of whether the public agency or some other agency will provide those
services. Section 300.347(b)(2) specifically requires that the statement of needed transition
services include, ‘‘* * * if appropriate, a statement of the interagency responsibilities or any
needed linkages.’’
Further, the IDEA Amendments of 1997 also permit an LEA to use up to five percent of
the Part B funds it receives in any fiscal year in combination with other amounts, which must
include amounts other than education funds, to develop and implement a coordinated
services system. These funds may be used for activities such as: (1) linking IEPs under Part
B and Individualized Family Service Plans (IFSPs) under Part C, with Individualized Service
Plans developed under multiple Federal and State programs, such as Title I of the
Rehabilitation Act; and (2) developing and implementing interagency financing strategies for
the provision of services, including transition services under Part B.
The need to include, as part of a student’s IEP, transition services to be provided by
agencies other than the public agency is contemplated by § 300.348(a), which specifies what
the public agency must do if another agency participating in the development of the
statement of needed transition services fails to provide a needed transition service that it had
agreed to provide.
If an agreed-upon service by another agency is not provided, the public agency
responsible for the student’s education must implement alternative strategies to meet the
student’s needs. This requires that the public agency provide the services, or convene an IEP
meeting as soon as possible to identify alternative strategies to meet the transition services
objectives, and to revise the IEP accordingly.
Alternative strategies might include the identification of another funding source, referral
to another agency, the public agency’s identification of other district-wide or community
resources that it can use to meet the student’s identified needs appropriately, or a
combination of these strategies. As emphasized by § 300.348(b), however:
Nothing in [Part B] relieves any participating agency, including a State vocational
rehabilitation agency, of the responsibility to provide or pay for any transition service that
the agency would otherwise provide to students with disabilities who meet the eligibility
criteria of that agency.
However, the fact that an agency other than the public agency does not fulfill its
responsibility does not relieve the public agency of its responsibility to ensure that FAPE is
available to each student with a disability. (Section 300.142(b)(2) specifically requires that if
an agency other than the LEA fails to provide or pay for a special education or related
service (which could include a transition service), the LEA must, without delay, provide or
pay for the service, and may then claim reimbursement from the agency that failed to provide
or pay for the service.)
13. Under what circumstances must a public agency invite representatives from other
agencies to an IEP meeting at which a child’s need for transition services will be considered?
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Section 300.344 requires that, ‘‘In implementing the requirements of [§ 300.347(b)(1)(ii)
requiring a statement of needed transition services], the public agency shall also invite a
representative of any other agency that is likely to be responsible for providing or paying for
transition services.’’ To meet this requirement, the public agency must identify all agencies
that are ‘‘likely to be responsible for providing or paying for transition services’’ for each
student addressed by § 300.347(b)(1), and must invite each of those agencies to the IEP
meeting; and if an agency invited to send a representative to a meeting does not do so, the
public agency must take other steps to obtain the participation of that agency in the planning
of any transition services.
If, during the course of an IEP meeting, the team identifies additional agencies that are
‘‘likely to be responsible for providing or paying for transition services’’ for the student, the
public agency must determine how it will meet the requirements of § 300.344.
IV. Other Questions Regarding the Development and Content of IEPS
14. For a child with a disability receiving special education for the first time, when must
an IEP be developed—before or after the child begins to receive special education and
related services?
Section 300.342(b)(1) requires that an IEP be ‘‘in effect before special education and
related services are provided to an eligible child * * *’’ (Italics added.)
The appropriate placement for a particular child with a disability cannot be determined
until after decisions have been made about the child’s needs and the services that the public
agency will provide to meet those needs. These decisions must be made at the IEP meeting,
and it would not be permissible first to place the child and then develop the IEP. Therefore,
the IEP must be developed before placement. (Further, the child’s placement must be based,
among other factors, on the child’s IEP.)
This requirement does not preclude temporarily placing an eligible child with a disability
in a program as part of the evaluation process—before the IEP is finalized—to assist a public
agency in determining the appropriate placement for the child. However, it is essential that
the temporary placement not become the final placement before the IEP is finalized. In order
to ensure that this does not happen, the State might consider requiring LEAs to take the
following actions:
a. Develop an interim IEP for the child that sets out the specific conditions and timelines
for the trial placement. (See paragraph c, following.)
b. Ensure that the parents agree to the interim placement before it is carried out, and that
they are involved throughout the process of developing, reviewing, and revising the child’s
IEP.
c. Set a specific timeline (e.g., 30 days) for completing the evaluation, finalizing the IEP,
and determining the appropriate placement for the child.
d. Conduct an IEP meeting at the end of the trial period in order to finalize the child’s
IEP.
15. Who is responsible for ensuring the development of IEPs for children with disabilities
served by a public agency other than an LEA?
The answer as to which public agency has direct responsibility for ensuring the
development of IEPs for children with disabilities served by a public agency other than an
LEA will vary from State to State, depending upon State law, policy, or practice. The SEA is
ultimately responsible for ensuring that all Part B requirements, including the IEP
requirements, are met for eligible children within the State, including those children served
by a public agency other than an LEA. Thus, the SEA must ensure that every eligible child
with a disability in the State has FAPE available, regardless of which State or local agency is
responsible for educating the child. (The only exception to this responsibility is that the SEA
is not responsible for ensuring that FAPE is made available to children with disabilities who
are convicted as adults under State law and incarcerated in adult prisons, if the State has
assigned that responsibility to a public agency other than the SEA. (See § 300.600(d)).
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Although the SEA has flexibility in deciding the best means to meet this obligation (e.g.,
through interagency agreements), the SEA must ensure that no eligible child with a disability
is denied FAPE due to jurisdictional disputes among agencies.
When an LEA is responsible for the education of a child with a disability, the LEA
remains responsible for developing the child’s IEP, regardless of the public or private school
setting into which it places the child.
16. For a child placed out of State by an educational or non-educational State or local
agency, is the placing or receiving State responsible for the child’s IEP?
Regardless of the reason for the placement, the ‘‘placing’’ State is responsible for
ensuring that the child’s IEP is developed and that it is implemented. The determination of
the specific agency in the placing State that is responsible for the child’s IEP would be based
on State law, policy, or practice. However, the SEA in the placing State is ultimately
responsible for ensuring that the child has FAPE available.
17. If a disabled child has been receiving special education from one public agency and
transfers to another public agency in the same State, must the new public agency develop an
IEP before the child can be placed in a special education program?
If a child with a disability moves from one public agency to another in the same State, the
State and its public agencies have an ongoing responsibility to ensure that FAPE is made
available to that child. This means that if a child moves to another public agency the new
agency is responsible for ensuring that the child has available special education and related
services in conformity with an IEP.
The new public agency must ensure that the child has an IEP in effect before the agency
can provide special education and related services. The new public agency may meet this
responsibility by either adopting the IEP the former public agency developed for the child or
by developing a new IEP for the child. (The new public agency is strongly encouraged to
continue implementing the IEP developed by the former public agency, if appropriate,
especially if the parents believe their child was progressing appropriately under that IEP.)
Before the child’s IEP is finalized, the new public agency may provide interim services
agreed to by both the parents and the new public agency. If the parents and the new public
agency are unable to agree on an interim IEP and placement, the new public agency must
implement the old IEP to the extent possible until a new IEP is developed and implemented.
In general, while the new public agency must conduct an IEP meeting, it would not be
necessary if: (1) A copy of the child’s current IEP is available; (2) the parents indicate that
they are satisfied with the current IEP; and (3) the new public agency determines that the
current IEP is appropriate and can be implemented as written.
If the child’s current IEP is not available, or if either the new public agency or the parent
believes that it is not appropriate, the new public agency must develop a new IEP through
appropriate procedures within a short time after the child enrolls in the new public agency
(normally, within one week).
18. What timelines apply to the development and implementation of an initial IEP for a
child with a disability?
Section 300.343(b) requires each public agency to ensure that within a reasonable period
of time following the agency’s receipt of parent consent to an initial evaluation of a child, the
child is evaluated and, if determined eligible, special education and related services are made
available to the child in accordance with an IEP. The section further requires the agency to
conduct a meeting to develop an IEP for the child within 30 days of determining that the
child needs special education and related services.
Section 300.342(b)(2) provides that an IEP must be implemented as soon as possible
following the meeting in which the IEP is developed.
19. Must a public agency hold separate meetings to determine a child’s eligibility for
special education and related services, develop the child’s IEP, and determine the child’s
placement, or may the agency meet all of these requirements in a single meeting?
A public agency may, after a child is determined by ‘‘a group of qualified professionals
and the parent’’ (see § 300.534(a)(1)) to be a child with a disability, continue in the same
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meeting to develop an IEP for the child and then to determine the child’s placement.
However, the public agency must ensure that it meets: (1) the requirements of § 300.535
regarding eligibility decisions; (2) all of the Part B requirements regarding meetings to
develop IEPs (including providing appropriate notification to the parents, consistent with the
requirements of §§ 300.345, 300.503, and 300.504, and ensuring that all the required team
members participate in the development of the IEP, consistent with the requirements of
§ 300.344;) and (3) ensuring that the placement is made by the required individuals,
including the parent, as required by §§ 300.552 and 300.501(c).
20. How frequently must a public agency conduct meetings to review, and, if appropriate,
revise the IEP for each child with a disability?
A public agency must initiate and conduct meetings periodically, but at least once every
twelve months, to review each child’s IEP, in order to determine whether the annual goals
for the child are being achieved, and to revise the IEP, as appropriate, to address: (a) Any
lack of expected progress toward the annual goals and in the general curriculum, if
appropriate; (b) the results of any reevaluation; (c) information about the child provided to,
or by, the parents; (d) the child’s anticipated needs; or (e) other matters (§ 300.343(c)).
A public agency also must ensure that an IEP is in effect for each child at the beginning
of each school year (§ 300.342(a)). It may conduct IEP meetings at any time during the year.
However, if the agency conducts the IEP meeting prior to the beginning of the next school
year, it must ensure that the IEP contains the necessary special education and related services
and supplementary aids and services to ensure that the student’s IEP can be appropriately
implemented during the next school year. Otherwise, it would be necessary for the public
agency to conduct another IEP meeting.
Although the public agency is responsible for determining when it is necessary to
conduct an IEP meeting, the parents of a child with a disability have the right to request an
IEP meeting at any time. For example, if the parents believe that the child is not progressing
satisfactorily or that there is a problem with the child’s current IEP, it would be appropriate
for the parents to request an IEP meeting.
If a child’s teacher feels that the child’s IEP or placement is not appropriate for the child,
the teacher should follow agency procedures with respect to: (1) calling or meeting with the
parents or (2) requesting the agency to hold another IEP meeting to review the child’s IEP.
The legislative history of Public Law 94–142 makes it clear that there should be as many
meetings a year as any one child may need (121 Cong. Rec. S20428–29 (Nov. 19, 1975)
(remarks of Senator Stafford)). Public agencies should grant any reasonable parent request
for an IEP meeting. For example, if the parents question the adequacy of services that are
provided while their child is suspended for short periods of time, it would be appropriate to
convene an IEP meeting.
In general, if either a parent or a public agency believes that a required component of the
student’s IEP should be changed, the public agency must conduct an IEP meeting if it
believes that a change in the IEP may be necessary to ensure the provision of FAPE.
If a parent requests an IEP meeting because the parent believes that a change is needed in
the provision of FAPE to the child or the educational placement of the child, and the agency
refuses to convene an IEP meeting to determine whether such a change is needed, the agency
must provide written notice to the parents of the refusal, including an explanation of why the
agency has determined that conducting the meeting is not necessary to ensure the provision
of FAPE to the student.
Under § 300.507(a), the parents or agency may initiate a due process hearing at any time
regarding any proposal or refusal regarding the identification, evaluation, or educational
placement of the child, or the provision of FAPE to the child, and the public agency must
inform parents about the availability of mediation.
21. May IEP meetings be audio- or videotape-recorded?
Part B does not address the use of audio or video recording devices at IEP meetings, and
no other Federal statute either authorizes or prohibits the recording of an IEP meeting by
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either a parent or a school official. Therefore, an SEA or public agency has the option to
require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.
If a public agency has a policy that prohibits or limits the use of recording devices at IEP
meetings, that policy must provide for exceptions if they are necessary to ensure that the
parent understands the IEP or the IEP process or to implement other parental rights
guaranteed under Part B. An SEA or school district that adopts a rule regulating the tape
recording of IEP meetings also should ensure that it is uniformly applied.
Any recording of an IEP meeting that is maintained by the public agency is an
‘‘education record,’’ within the meaning of the Family Educational Rights and Privacy Act
(‘‘FERPA’’; 20 U.S.C. 1232g), and would, therefore, be subject to the confidentiality
requirements of the regulations under both FERPA (34 CFR part 99) and part B
(§§ 300.560–300.575).
Parents wishing to use audio or video recording devices at IEP meetings should consult
State or local policies for further guidance.
22. Who can serve as the representative of the public agency at an IEP meeting?
The IEP team must include a representative of the public agency who: (a) Is qualified to
provide, or supervise the provision of, specially designed instruction to meet the unique
needs of children with disabilities; (b) is knowledgeable about the general curriculum; and
(c) is knowledgeable about the availability of resources of the public agency
(§ 300.344(a)(4)).
Each public agency may determine which specific staff member will serve as the agency
representative in a particular IEP meeting, so long as the individual meets these
requirements. It is important, however, that the agency representative have the authority to
commit agency resources and be able to ensure that whatever services are set out in the IEP
will actually be provided.
A public agency may designate another public agency member of the IEP team to also
serve as the agency representative, so long as that individual meets the requirements of
§ 300.344(a)(4).
23. For a child with a disability being considered for initial provision of special education
and related services, which teacher or teachers should attend the IEP meeting?
A child’s IEP team must include at least one of the child’s regular education teachers (if
the child is, or may be participating in the regular education environment) and at least one of
the child’s special education teachers, or, if appropriate, at least one of the child’s special
education providers (§ 300.344(a)(2) and (3)).
Each IEP must include a statement of the present levels of educational performance,
including a statement of how the child’s disability affects the child’s involvement and
progress in the general curriculum (§ 300.347(a)(1)). At least one regular education teacher
is a required member of the IEP team of a child who is, or may be, participating in the
regular educational environment, regardless of the extent of that participation.
The requirements of § 300.344(a)(3) can be met by either: (1) a special education teacher
of the child; or (2) another special education provider of the child, such as a speech
pathologist, physical or occupational therapist, etc., if the related service consists of specially
designed instruction and is considered special education under applicable State standards.
Sometimes more than one meeting is necessary in order to finalize a child’s IEP. In this
process, if the special education teacher or special education provider who will be working
with the child is identified, it would be useful to have that teacher or provider participate in
the meeting with the parents and other members of the IEP team in finalizing the IEP. If this
is not possible, the public agency must ensure that the teacher or provider has access to the
child’s IEP as soon as possible after it is finalized and before beginning to work with the
child.
Further, (consistent with § 300.342(b)), the public agency must ensure that each regular
education teacher, special education teacher, related services provider and other service
provider of an eligible child under this part (1) has access to the child’s IEP, and (2) is
informed of his or her specific responsibilities related to implementing the IEP, and of the
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specific accommodations, modifications, and supports that must be provided to the child in
accordance with the IEP. This requirement is crucial to ensuring that each child receives
FAPE in accordance with his or her IEP, and that the IEP is appropriately and effectively
implemented.
24. What is the role of a regular education teacher in the development, review and
revision of the IEP for a child who is, or may be, participating in the regular education
environment?
As required by § 300.344(a)(2), the IEP team for a child with a disability must include at
least one regular education teacher of the child if the child is, or may be, participating in the
regular education environment. Section 300.346(d) further specifies that the regular
education teacher of a child with a disability, as a member of the IEP team, must, to the
extent appropriate, participate in the development, review, and revision of the child’s IEP,
including assisting in—(1) the determination of appropriate positive behavioral interventions
and strategies for the child; and (2) the determination of supplementary aids and services,
program modifications, and supports for school personnel that will be provided for the child,
consistent with 300.347(a)(3) (§ 300.344(d)).
Thus, while a regular education teacher must be a member of the IEP team if the child is,
or may be, participating in the regular education environment, the teacher need not
(depending upon the child’s needs and the purpose of the specific IEP team meeting) be
required to participate in all decisions made as part of the meeting or to be present
throughout the entire meeting or attend every meeting. For example, the regular education
teacher who is a member of the IEP team must participate in discussions and decisions about
how to modify the general curriculum in the regular classroom to ensure the child’s
involvement and progress in the general curriculum and participation in the regular education
environment.
Depending upon the specific circumstances, however, it may not be necessary for the
regular education teacher to participate in discussions and decisions regarding, for example,
the physical therapy needs of the child, if the teacher is not responsible for implementing that
portion of the child’s IEP.
In determining the extent of the regular education teacher’s participation at IEP meetings,
public agencies and parents should discuss and try to reach agreement on whether the child’s
regular education teacher that is a member of the IEP team should be present at a particular
IEP meeting and, if so, for what period of time. The extent to which it would be appropriate
for the regular education teacher member of the IEP team to participate in IEP meetings must
be decided on a case-by-case basis.
25. If a child with a disability attends several regular classes, must all of the child’s
regular education teachers be members of the child’s IEP team?
No. The IEP team need not include more than one regular education teacher of the child.
If the participation of more than one regular education teacher would be beneficial to the
child’s success in school (e.g., in terms of enhancing the child’s participation in the general
curriculum), it would be appropriate for them to attend the meeting.
26. How should a public agency determine which regular education teacher and special
education teacher will be members of the IEP team for a particular child with a disability?
The regular education teacher who serves as a member of a child’s IEP team should be a
teacher who is, or may be, responsible for implementing a portion of the IEP, so that the
teacher can participate in discussions about how best to teach the child.
If the child has more than one regular education teacher responsible for carrying out a
portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team
member(s), taking into account the best interest of the child.
In a situation in which not all of the child’s regular education teachers are members of the
child’s IEP team, the LEA is strongly encouraged to seek input from the teachers who will
not be attending. In addition, (consistent with § 300.342(b)), the LEA must ensure that each
regular education teacher (as well as each special education teacher, related services
provider, and other service provider) of an eligible child under this part (1) has access to the
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child’s IEP, and (2) is informed of his or her specific responsibilities related to implementing
the IEP, and of the specific accommodations, modifications and supports that must be
provided to the child in accordance with the IEP.
In the case of a child whose behavior impedes the learning of the child or others, the LEA
is encouraged to have a regular education teacher or other person knowledgeable about
positive behavior strategies at the IEP meeting. This is especially important if the regular
education teacher is expected to carry out portions of the IEP.
Similarly, the special education teacher or provider of the child who is a member of the
child’s IEP team should be the person who is, or will be, responsible for implementing the
IEP. If, for example, the child’s disability is a speech impairment, the special education
teacher on the IEP team could be the speech-language pathologist.
27. For a child whose primary disability is a speech impairment, may a public agency
meet its responsibility under § 300.344(a)(3) to ensure that the IEP team includes ‘‘at least
one special education teacher, or, if appropriate, at least one special education provider of the
child’’ by including a speech-language pathologist on the IEP team?
Yes, if speech is considered special education under State standards. As with other
children with disabilities, the IEP team must also include at least one of the child’s regular
education teachers if the child is, or may be, participating in the regular education
environment.
28. Do parents and public agencies have the option of inviting any individual of their
choice be participants on their child’s IEP team?
The IEP team may, at the discretion of the parent or the agency, include ‘‘other
individuals who have knowledge or special expertise regarding the child * * *’’
(§ 300.344(a)(6), italics added). Under § 300.344(a)(6), these individuals are members of the
IEP team. This is a change from prior law, which provided, without qualification, that
parents or agencies could have other individuals as members of the IEP team at the discretion
of the parents or agency.
Under § 300.344(c), the determination as to whether an individual has knowledge or
special expertise, within the meaning of § 300.344(a)(6), shall be made by the parent or
public agency who has invited the individual to be a member of the IEP team.
Part B does not provide for including individuals such as representatives of teacher
organizations as part of an IEP team, unless they are included because of knowledge or
special expertise regarding the child. (Because a representative of a teacher organization
would generally be concerned with the interests of the teacher rather than the interests of the
child, and generally would not possess knowledge or expertise regarding the child, it
generally would be inappropriate for such an official to be a member of the IEP team or to
otherwise participate in an IEP meeting.)
29. Can parents or public agencies bring their attorneys to IEP meetings, and, if so under
what circumstances? Are attorney’s fees available for parents’ attorneys if the parents are
prevailing parties in actions or proceedings brought under Part B?
Section 300.344(a)(6) authorizes the addition to the IEP team of other individuals at the
discretion of the parent or the public agency only if those other individuals have knowledge
or special expertise regarding the child. The determination of whether an attorney possesses
knowledge or special expertise regarding the child would have to be made on a case-by-case
basis by the parent or public agency inviting the attorney to be a member of the team.
The presence of the agency’s attorney could contribute to a potentially adversarial
atmosphere at the meeting. The same is true with regard to the presence of an attorney
accompanying the parents at the IEP meeting. Even if the attorney possessed knowledge or
special expertise regarding the child (§ 300.344(a)(6)), an attorney’s presence would have the
potential for creating an adversarial atmosphere that would not necessarily be in the best
interests of the child.
Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged.
Further, as specified in Section 615(i)(3)(D)(ii) of the Act and § 300.513(c)(2)(ii), Attorneys’
fees may not be awarded relating to any meeting of the IEP team unless the meeting is
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convened as a result of an administrative proceeding or judicial action, or, at the discretion of
the State, for a mediation conducted prior to the request for a due process hearing.
30. Must related services personnel attend IEP meetings?
Although Part B does not expressly require that the IEP team include related services
personnel as part of the IEP team (§ 300.344(a)), it is appropriate for those persons to be
included if a particular related service is to be discussed as part of the IEP meeting. Section
300.344(a)(6) provides that the IEP team also includes ‘‘at the discretion of the parent or the
agency, other individuals who have knowledge or special expertise regarding the child,
including related services personnel as appropriate. * * *’’ (Italics added.)
Further, § 300.344(a)(3) requires that the IEP team for each child with a disability
include ‘‘at least one special education teacher, or, if appropriate, at least one special
education provider of the child * * *’’ This requirement can be met by the participation of
either (1) a special education teacher of the child, or (2) another special education provider
such as a speech-language pathologist, physical or occupational therapist, etc., if the related
service consists of specially designed instruction and is considered special education under
the applicable State standard.
If a child with a disability has an identified need for related services, it would be
appropriate for the related services personnel to attend the meeting or otherwise be involved
in developing the IEP. As explained in the Committee Reports on the IDEA Amendments of
1997, ‘‘Related services personnel should be included on the team when a particular related
service will be discussed at the request of the child’s parents or the school.’’ (H. Rep. No.
105–95, p. 103 (1997); S. Rep. No. 105–17, p. 23 (1997)). For example, if the child’s
evaluation indicates the need for a specific related service (e.g., physical therapy,
occupational therapy, special transportation services, school social work services, school
health services, or counseling), the agency should ensure that a qualified provider of that
service either (1) attends the IEP meeting, or (2) provides a written recommendation
concerning the nature, frequency, and amount of service to be provided to the child. This
written recommendation could be a part of the evaluation report.
A public agency must ensure that all individuals who are necessary to develop an IEP
that will meet the child’s unique needs, and ensure the provision of FAPE to the child,
participate in the child’s IEP meeting.
31. Must the public agency ensure that all services specified in a child’s IEP are
provided?
Yes. The public agency must ensure that all services set forth in the child’s IEP are
provided, consistent with the child’s needs as identified in the IEP. The agency may provide
each of those services directly, through its own staff resources; indirectly, by contracting
with another public or private agency; or through other arrangements. In providing the
services, the agency may use whatever State, local, Federal, and private sources of support
are available for those purposes (see § 300.301(a)); but the services must be at no cost to the
parents, and the public agency remains responsible for ensuring that the IEP services are
provided in a manner that appropriately meets the student’s needs as specified in the IEP.
The SEA and responsible public agency may not allow the failure of another agency to
provide service(s) described in the child’s IEP to deny or delay the provision of FAPE to the
child. (See § 300.142, Methods of ensuring services.)
32. Is it permissible for an agency to have the IEP completed before the IEP meeting
begins?
No. Agency staff may come to an IEP meeting prepared with evaluation findings and
proposed recommendations regarding IEP content, but the agency must make it clear to the
parents at the outset of the meeting that the services proposed by the agency are only
recommendations for review and discussion with the parents. Parents have the right to bring
questions, concerns, and recommendations to an IEP meeting as part of a full discussion, of
the child’s needs and the services to be provided to meet those needs before the IEP is
finalized.
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Public agencies must ensure that, if agency personnel bring drafts of some or all of the
IEP content to the IEP meeting, there is a full discussion with the child’s parents, before the
child’s IEP is finalized, regarding drafted content and the child’s needs and the services to be
provided to meet those needs.
33. Must a public agency include transportation in a child’s IEP as a related service?
As with other related services, a public agency must provide transportation as a related
service if it is required to assist the disabled child to benefit from special education. (This
includes transporting a preschool-aged child to the site at which the public agency provides
special education and related services to the child, if that site is different from the site at
which the child receives other preschool or day care services.)
In determining whether to include transportation in a child’s IEP, and whether the child
needs to receive transportation as a related service, it would be appropriate to have at the IEP
meeting a person with expertise in that area. In making this determination, the IEP team must
consider how the child’s disability affects the child’s need for transportation, including
determining whether the child’s disability prevents the child from using the same
transportation provided to nondisabled children, or from getting to school in the same
manner as nondisabled children.
The public agency must ensure that any transportation service included in a child’s IEP
as a related service is provided at public expense and at no cost to the parents, and that the
child’s IEP describes the transportation arrangement.
Even if a child’s IEP team determines that the child does not require transportation as a
related service, Section 504 of the Rehabilitation Act of 1973, as amended, requires that the
child receive the same transportation provided to nondisabled children. If a public agency
transports nondisabled children, it must transport disabled children under the same terms and
conditions. However, if a child’s IEP team determines that the child does not need
transportation as a related service, and the public agency transports only those children
whose IEPs specify transportation as a related service, and does not transport nondisabled
children, the public agency would not be required to provide transportation to a disabled
child.
It should be assumed that most children with disabilities receive the same transportation
services as nondisabled children. For some children with disabilities, integrated
transportation may be achieved by providing needed accommodations such as lifts and other
equipment adaptations on regular school transportation vehicles.
34. Must a public agency provide related services that are required to assist a child with a
disability to benefit from special education, whether or not those services are included in the
list of related services in § 300.24?
The list of related services is not exhaustive and may include other developmental,
corrective, or supportive services if they are required to assist a child with a disability to
benefit from special education. This could, depending upon the unique needs of a child,
include such services as nutritional services or service coordination.
These determinations must be made on an individual basis by each child’s IEP team.
35. Must the IEP specify the amount of services or may it simply list the services to be
provided?
The amount of services to be provided must be stated in the IEP, so that the level of the
agency’s commitment of resources will be clear to parents and other IEP team members
(§ 300.347(a)(6)). The amount of time to be committed to each of the various services to be
provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner
that is clear to all who are involved in both the development and implementation of the IEP.
The amount of a special education or related service to be provided to a child may be
stated in the IEP as a range (e.g., speech therapy to be provided three times per week for 30–
45 minutes per session) only if the IEP team determines that stating the amount of services as
a range is necessary to meet the unique needs of the child. For example, it would be
appropriate for the IEP to specify, based upon the IEP team’s determination of the student’s
unique needs, that particular services are needed only under specific circumstances, such as
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the occurrence of a seizure or of a particular behavior. A range may not be used because of
personnel shortages or uncertainty regarding the availability of staff.
36. Under what circumstances is a public agency required to permit a child with a
disability to use a school-purchased assistive technology device in the child’s home or in
another setting?
Each child’s IEP team must consider the child’s need for assistive technology (AT) in the
development of the child’s IEP (§ 300.346(a)(2)(v)); and the nature and extent of the AT
devices and services to be provided to the child must be reflected in the child’s IEP
(§ 300.346(c)).
A public agency must permit a child to use school-purchased assistive technology
devices at home or in other settings, if the IEP team determines that the child needs access to
those devices in nonschool settings in order to receive FAPE (to complete homework, for
example).
Any assistive technology devices that are necessary to ensure FAPE must be provided at
no cost to the parents, and the parents cannot be charged for normal use, wear and tear.
However, while ownership of the devices in these circumstances would remain the public
agency, State law, rather than Part B, generally would govern whether parents are liable for
loss, theft, or damage due to negligence or misuse of publicly owned equipment used at
home or in other settings in accordance with a child’s IEP.
37. Can the IEP team also function as the group making the placement decision for a
child with a disability?
Yes, a public agency may use the IEP team to make the placement decision for a child, so
long as the group making the placement decision meets the requirements of §§ 300.552 and
300.501(c), which requires that the placement decision be made by a group of persons,
including the parents, and other persons knowledgeable about the child, the meaning of the
evaluation data, and the placement options.
38. If a child’s IEP includes behavioral strategies to address a particular behavior, can a
child ever be suspended for engaging in that behavior?
If a child’s behavior impedes his or her learning or that of others, the IEP team, in
developing the child’s IEP, must consider, if appropriate, development of strategies,
including positive behavioral interventions, strategies and supports to address that behavior,
consistent with § 300.346(a)(2)(i). This means that in most cases in which a child’s behavior
that impedes his or her learning or that of others is, or can be readily anticipated to be,
repetitive, proper development of the child’s IEP will include the development of strategies,
including positive behavioral interventions, strategies and supports to address that behavior.
See § 300.346(c). This includes behavior that could violate a school code of conduct. A
failure to, if appropriate, consider and address these behaviors in developing and
implementing the child’s IEP would constitute a denial of FAPE to the child. Of course, in
appropriate circumstances, the IEP team, which includes the child’s parents, might determine
that the child’s behavioral intervention plan includes specific regular or alternative
disciplinary measures, such as denial of certain privileges or short suspensions, that would
result from particular infractions of school rules, along with positive behavior intervention
strategies and supports, as a part of a comprehensive plan to address the child’s behavior. Of
course, if short suspensions that are included in a child’s IEP are being implemented in a
manner that denies the child access to the ability to progress in the educational program, the
child would be denied FAPE.
Whether other disciplinary measures, including suspension, are ever appropriate for
behavior that is addressed in a child’s IEP will have to be determined on a case by case basis
in light of the particular circumstances of that incident. However, school personnel may not
use their ability to suspend a child for 10 days or less at a time on multiple occasions in a
school year as a means of avoiding appropriately considering and addressing the child’s
behavior as a part of providing FAPE to the child.
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39. If a child’s behavior in the regular classroom, even with appropriate interventions,
would significantly impair the learning of others, can the group that makes the placement
decision determine that placement in the regular classroom is inappropriate for that child?
The IEP team, in developing the IEP, is required to consider, when appropriate,
strategies, including positive behavioral interventions, strategies and supports to address the
behavior of a child with a disability whose behavior impedes his or her learning or that of
others. If the IEP team determines that such supports, strategies or interventions are
necessary to address the behavior of the child, those services must be included in the child’s
IEP. These provisions are designed to foster increased participation of children with
disabilities in regular education environments or other less restrictive environments, not to
serve as a basis for placing children with disabilities in more restrictive settings.
The determination of appropriate placement for a child whose behavior is interfering with
the education of others requires careful consideration of whether the child can appropriately
function in the regular classroom if provided appropriate behavioral supports, strategies and
interventions. If the child can appropriately function in the regular classroom with
appropriate behavioral supports, strategies or interventions, placement in a more restrictive
environment would be inconsistent with the least restrictive environment provisions of the
IDEA. If the child’s behavior in the regular classroom, even with the provision of appropriate
behavioral supports, strategies or interventions, would significantly impair the learning of
others, that placement would not meet his or her needs and would not be appropriate for that
child.
40. May school personnel during a school year implement more than one short-term
removal of a child with disabilities from his or her classroom or school for misconduct?
Yes. Under § 300.520(a)(1), school personnel may order removal of a child with a
disability from the child’s current placement for not more than 10 consecutive school days
for any violation of school rules, and additional removals of not more than 10 consecutive
school days in that same school year for separate incidents of misconduct, as long as these
removals do not constitute a change of placement under § 300.519(b). However, these
removals are permitted only to the extent they are consistent with discipline that is applied to
children without disabilities. Also, school personnel should be aware of constitutional due
process protections that apply to suspensions of all children. Goss v. Lopez, 419 U.S. 565
(1975). Section 300.121(d) addresses the extent of the obligation to provide services after a
child with a disability has been removed from his or her current placement for more than 10
school days in the same school year.
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FAMILY EDUCATION RIGHTS & PRIVACY ACT (FERPA)
REGULATIONS
34 CFR Part 99
AUTHORITY: 20 U.S.C. 1232g unless otherwise noted.
PART 99 -- FAMILY EDUCATIONAL RIGHTS AND PRIVACY
The authority citation for part continues to read as follows:
Authority: 20 U.S.C. 1232g, unless otherwise noted.
Subpart A - General
§ 99.1 To which educational agencies or institutions do these regulations apply?
(a) Except as otherwise noted in § 99.10, this part applies to an educational agency or
institution to which funds have been made available under any program administered by the
Secretary, if -
(1) The educational institution provides educational services or instruction, or both, to
students; or
(2) The educational agency is authorized to direct and control public elementary or
secondary, or postsecondary educational institutions.
(b) This part does not apply to an educational agency or institution solely because
students attending that agency or institution receive non-monetary benefits under a program
referenced in paragraph (a) of this section, if no funds under that program are made available
to the agency or institution.
(c) The Secretary considers funds to be made available to an educational agency or
institution if funds under one or more of the programs referenced in paragraph (a) of this
section -
(1) Are provided to the agency or institution by grant, cooperative agreement,
contract, sub grant, or subcontract; or (2) Are provided to students attending the agency or
institution and the funds may be paid to the agency or institution by those students for
educational purposes, such as under the Pell Grant Program and the Guaranteed Student
Loan Program (Titles IV-A-1 and IV -B, respectively, of the Higher Education Act of 1965,
as amended).
(d) If an educational agency or institution receives funds under one or more of the
programs covered by this section, the regulations in this part apply to the recipient as a
whole, including each of its components (such as a department within a university).
(Authority: 20 U.S.C. 1232g)
§ 99.2 What is the purpose of these regulations?
The purpose of this part is to set out requirements for the protection of privacy of parents
and students under section 444 of the General Education Provisions Act, as amended.
(Authority: 20 U.S.C. 1232g)
NOTE: 34 CFR 300.560-300.576 contain requirements regarding confidentiality of
information relating to handicapped children who receive benefits under the Education of the
Handicapped Act.
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§ 99.3 What definitions apply to these regulations?
The following definitions apply to this part:
“Act” means the Family Educational Rights and Privacy Act of 1974, as amended,
enacted as section 444 of the General Education Provisions Act.
(Authority: 20 U.S.C. 1232g)
“Attendance” includes, but is not limited to:
(a) Attendance in person or by correspondence; and
(b) The period during which a person is working under a work-study program.
(Authority: 20 U.S.C. 1232g)
“Dates of attendance ”
(a) The term means the period of time during which a student attends or attended an
educational agency or institution. Examples of dates of attendance include an academic year,
a spring semester, or a first quarter.
(b) The term does not include specific daily records of a student’s attendance at an
educational agency or institution.
(Authority: 20 U.S.C. 1232g (a)(5)(A))
“Directory information” means information contained in an education record of a student
that would not generally be considered harmful or an invasion of privacy if disclosed. It
includes, but is not limited to, the student’s name, address, telephone listing, electronic mail
address, photograph, date and place of birth, major field of study, dates of attendance, grade
level, enrollment status (e.g., undergraduate or graduate; full-time or part-time), participation
in officially recognized activities and sports, weight and height of members of athletic teams,
degrees, honors and awards received, and the most recent educational agency or institution
attended.
(Authority: 20 U.S.C. 1232g)(a)(5)(A))
“Disciplinary action or proceeding” means the investigation, adjudication, or imposition
of sanctions by an educational agency or institution with respect to an infraction or violation
of the internal rules of conduct applicable to students of the agency or institution.
“Disclosure” means to permit access to or the release, transfer, or other communication
of personally identifiable information contained in education records to any party, by any
means, including oral, written, or electronic means.
(Authority: 20 U.S.C. 1232g(b)(1))
“Educational agency or institution” means any public or private agency or institution to
which this part applies under § 99.1(a).
(Authority: 20 U.S.C. 1232g(a)(3))
“Education records”
(a) The term means those records that are:
(1) Directly related to a student; and
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(2) Maintained by an educational agency or institution or by a party acting for the
agency or institution.
(b) The term does not include:
(1) Records that are kept in the sole possession of the maker, are used only as a
personal memory aid, and are not accessible or revealed to any other person except a
temporary substitute for the maker of the record.
(2) Records of the law enforcement unit of an educational agency or institution,
subject to the provisions of § 99.8.
(3)(i) Records relating to an individual who is employed by an educational agency or
institution, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual in that individual’s capacity as an
employee; and
(C) Are not available for use for any other purpose.
(ii) Records relating to an individual in attendance at the agency or institution
who is employed as a result of his or her status as a student are education records and not
excepted under paragraph (b)(3)(i) of this definition.
(4) Records on a student who is 18 years of age or older, or is attending an institution
of postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in his or her professional capacity or
assisting in a paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of the student;
and
(iii) Disclosed only to individuals providing the treatment. For the purpose of this
definition, “treatment” does not include remedial educational activities or activities that are
part of the program of instruction at the agency or institution; and
(5) Records that only contain information about an individual after he or she is no
longer a student at that agency or institution.
(Authority: 20 U.S.C. 1232g(a)(4))
“Eligible student” means a student who has reached 18 years of age or is attending an
institution of postsecondary education.
(Authority: 20 U.S.C. 1232g(d))
“Institution of postsecondary education” means an institution that provides education to
students beyond the secondary school level; “secondary school level” means the educational
level (not beyond grade 12) at which secondary education is provided as determined under
State law.
(Authority: 20 U.S.C. 1232g(d))
“Parent” means a parent of a student and includes a natural parent, a guardian, or an
individual acting as a parent in the absence of a parent or a guardian.
(Authority: 20 U.S.C. 1232g)
“Party” means an individual, agency, institution, or organization.
(Authority: 20 U.S.C. 1232g(b)(4)(A))
“Personally identifiable information” includes, but is not limited to:
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(Authority: 20 U.S.C 1232g)
(a) The student’s name;
(b) The name of the student’s parent or other family member;
(c) The address of the student or student’s family;
(d) A personal identifier, such as the student’s social security number or student number;
(e) A list of personal characteristics that would make the student’s identity easily
traceable; or
(f) Other information that would make the student’s identity easily traceable.
“Record” means any information recorded in any way, including, but not limited to,
handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.
(Authority: 20 U.S.C 1232g)
“Secretary” means the Secretary of the U.S. Department of Education or an official or
employee of the Department of Education acting for the Secretary under a delegation of
authority.
(Authority: 20 U.S.C 1232g)
“Student, ” except as otherwise specifically provided in this part, means any individual
who is or has been in attendance at an educational agency or institution and regarding whom
the agency or institution maintains education records.
(Authority: 20 U.S.C 1232g(a)(6))
§ 99.4 What are the rights of parents?
An educational agency or institution shall give full rights under the Act to either parent,
unless the agency or institution has been provided with evidence that there is a court order,
State statute, or legally binding document relating to such matters as divorce, separation, or
custody that specifically revokes these rights.
(Authority: 20 U.S.C 1232g)
§ 99.5 What are the rights of students?
(a) When a student becomes an eligible student, the rights accorded to, and consent
required of, parents under this part transfer from the parents to the student.
(b) The Act and this part do not prevent educational agencies or institutions from giving
students rights in addition to those given to parents.
(c) An individual who is or has been a student at an educational institution and who
applies for admission at another component of that institution does not have rights under this
part with respect to records maintained by that other component, including records
maintained in connection with the student’s application for admission, unless the student is
accepted and attends that other component of the institution.
(Authority: 20 U.S.C 1232g(d))
§ 99.7 What must an educational agency or institution include in its annual
notification?
(a)
(1) Each educational agency or institution shall annually notify parents of students
currently in attendance, or eligible students currently in attendance, of their rights under the
Act and this part.
(2) The notice must inform parents or eligible students that they have the right to -
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(i) Inspect and review the student’s education records;
(ii) Seek amendment of the student’s education records that the parent or eligible
student believes to be inaccurate, misleading, or otherwise in violation of the student’s
privacy rights;
(iii) Consent to disclosures of personally identifiable information contained in the
student’s education records, except to the extent that the Act and § 99.31 authorize disclosure
without consent; and
(iv) File with the Department a complaint under §§ 99.63 and 99.64 concerning
alleged failures by the educational agency or institution to comply with the requirements of
the act and this part.
(3) The notice must include all of the following:
(i) The procedure for exercising the right to inspect and review education records.
(ii) The procedure for requesting amendment of records under § 99.20.
(iii) If the educational agency or institution has a policy of disclosing education
records under § 99.31(a)(1), a specification of criteria for determining who constitutes a
school official and what constitutes a legitimate educational interest.
(b) An educational agency or institution may provide this notice by any means that are
reasonably likely to inform the parents or eligible students of their rights.
(1) An educational agency or institution shall effectively notify parents or eligible
students who are disabled.
(2) An agency or institution of elementary or secondary education shall effectively
notify parents who have a primary or home language other than English.
(Approved by the Office of Management and Budget under control number 1880–0508)
(Authority: 20 U.S.C 1232g (e) and (f))
§ 99.8 What provisions apply to records of a law enforcement unit?
(a)
(1) “Law enforcement unit” means any individual, office, department, division, or
other component of an educational agency or institution, such as a unit of commissioned
police officers or non-commissioned security guards, that is officially authorized or
designated by that agency or institution to -
(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a
matter for enforcement of any local, State, or Federal law against any individual or
organization other than the agency or institution itself; or
(ii) Maintain the physical security and safety of the agency or institution.
(2) A component of an educational agency or institution does not lose its status as a
“law enforcement unit” if it also performs other, non-law enforcement functions for the
agency or institution, including investigation of Incidents or conduct that constitutes or leads
to a disciplinary action or proceedings against the student.
(b)
(1) Records of law enforcement unit means those records, files, documents, and other
materials that are -
(i) Created by a law enforcement unit;
(ii) Created for a law enforcement purpose; and
(iii) Maintained by the law enforcement unit.
(2) Records of law enforcement unit does not mean -
(i) Records created by a law enforcement unit for a law enforcement purpose that
are maintained by a component of the educational agency or institution other than the law
enforcement unit; or
(ii) Records created and maintained by a law enforcement unit exclusively for a
non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the
educational agency or institution.
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(c)
(1) Nothing in the Act prohibits an educational agency or institution from contacting
its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate
a possible violation of, or to enforce, any local, State, or Federal law.
(2) Education records, and personally identifiable information contained in education
records, do not lose their status as education records and remain subject to the Act, including
the disclosure provisions of § 99.30, while in possession of the law enforcement unit.
(d) The Act neither requires nor prohibits the disclosure by any educational agency or
institution of its law enforcement unit records.
(Authority: 20 U.S.C 1232g(a)(4)(B)(ii))
Subpart B - What Are the Rights of Inspection and Review of Education Records?
§ 99.10 What rights exist for a parent or eligible student to inspect and review
education records?
(a) Except as limited under § 99.12, a parent or eligible student must be given the
opportunity to inspect and review the student’s education records. This provision applies to -
(1) Any educational agency or institution; and
(2) Any State educational agency (SEA) and its components.
(i) For the purposes of subpart B of this part, an SEA and its components
constitute an educational agency or institution.
(ii) An SEA and its components are subject to subpart B of this part if the SEA
maintains education records on students who are or have been in attendance at any school of
an educational agency or institution subject to the Act and this part.
(b) The educational agency or institution, or SEA or its component, shall comply with a
request for access to records within a reasonable period of time, but not more than 45 days
after it has received the request.
(c) The educational agency or institution, or SEA or its component, shall respond to
reasonable requests for explanations and interpretations of the records.
(d) If circumstances effectively prevent the parent or eligible student from exercising the
right to inspect and review the student’s education records, the educational agency or
institution, or SEA or its component, shall -
(1) Provide the parent or eligible student with a copy of the records requested; or
(2) Make other arrangements for the parent or eligible student to inspect and re-view
the requested records.
(e) The educational agency or institution, or SEA or its component, shall not destroy any
education records if there is an outstanding request to inspect and review the records under
this section.
(f) While an education agency or institution is not required to give an eligible student
access to treatment records under paragraph (b)(4) of the definition of “Education records” in
§ 99.3, the student may have those records reviewed by a physician or other appropriate
professional of the student’s choice.
(Authority: 20 U.S.C 1232g(a)(1) (A) and (B))
§ 99.11 May an educational agency or institution charge a fee for copies of education
records?
(a) Unless the imposition of a fee effectively prevents a parent or eligible student from
exercising the right to inspect and review the student’s education records, an educational
agency or institution may charge a fee for a copy of an education record which is made for
the parent or eligible student.
(b) An educational agency or institution may not charge a fee to search for or to retrieve
the education records of a student.
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(Authority: 20 U.S.C 1232g(a)(1)?)
§ 99.12 What limitations exist on the right to inspect and review records?
(a) If the education records of a student contain information on more than one student,
the parent or eligible student may inspect and review or be informed of only the specific
information about that student.
(b) A postsecondary institution does not have to permit a student to inspect and review
education records that are:
(1) Financial records, including any information those records contain, of his or her
parents;
(2) Confidential letters and confidential statements of recommendation placed in the
education records of the student before January 1, 1975, as long as the statements are used
only for the purposes for which they were specifically intended; and
(3) Confidential letters and confidential statements of recommendation placed in the
student’s education records after January 1, 1975, if:
(i) The student has waived his or her right to inspect and review those letters and
statements; and
(ii) Those letters and statements are related to the student’s:
(A) Admission to an educational institution;
(B) Application for employment; or
(C) Receipt of an honor or honorary recognition
(c)
(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:
(i) The educational agency or institution does not require the waiver as a
condition for admission to or receipt of a service or benefit from the agency or institution;
and
(ii) The waiver is made in writing and signed by the student, regardless of age.
(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section,
the educational institution shall:
(i) Give the student, on request, the names of the individuals who provided the
letters and statements of recommendation; and
(ii) Use the letters and statements of recommendation only for the purpose for
which they were intended.
(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect
to any actions occurring after the revocation.
(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.
(Authority: 20 U.S.C 1232g(a)(1) (A), (B), (C), and (D))
Subpart C - What Are the Procedures for Amending Education Records?
§ 99.20 How can a parent or eligible student request amendment of the student’s
education records?
(a) If a parent or eligible student believes the education records relating to the student
contain information that is inaccurate, misleading, or in violation of the student’s rights of
privacy, he or she may ask the educational agency or institution to amend the record.
(b) The educational agency or institution shall decide whether to amend the record as
requested within a reasonable time after the agency or institution receives the request.
(c) If the educational agency or institution decides not to amend the record as requested,
it shall inform the parent or eligible student of its decision and of his or her right to a hearing
under § 99.21.
(Authority: 20 U.S.C 1232g(a)(2))
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§ 99.21 Under what conditions does a parent or eligible student have the right to a
hearing?
(a) An educational agency or institution shall give a parent or eligible student, on request,
an opportunity for a hearing to challenge the content of the student’s education records on
the grounds that the information contained in the education records is inaccurate, misleading,
or in violation of the privacy rights of the student.
(b)
(1) If, as a result of the hearing, the educational agency or institution decides that the
information is inaccurate, misleading, or otherwise in violation of the privacy rights of the
student, it shall:
(i) Amend the record accordingly; and
(ii) Inform the parent or eligible student of the amendment in writing.
(2) If, as a result of the hearing, the educational agency or institution decides that the
information in the education record is not inaccurate, misleading, or otherwise in violation of
the privacy rights of the student, it shall inform the parent or eligible student of the right to
place a statement in the record commenting on the contested information in the record or
stating why he or she disagrees with the decision of the agency or institution, or both.
(c) If an educational agency or institution places a statement in the education records of a
student under paragraph (b)(2) of this section, the agency or institution shall:
(1) Maintain the statement with the contested part of the record for as long as the
record is maintained; and
(2) Disclose the statement whenever it discloses the portion of the record to which the
statement relates.
(Authority: 20 U.S.C 1232g(a)(2))
§ 99.22 What minimum requirements exist for the conduct of a hearing?
The hearing required by § 99.21 must meet, at a minimum, the following requirements:
(a) The educational agency or institution shall hold the hearing within a reasonable time
after it has received the request for the hearing from the parent or eligible student.
(b) The educational agency or institution shall give the parent or eligible student notice of
the date, time, and place, reasonably in advance of the hearing.
(c) The hearing may be conducted by any individual, including an official of the
educational agency or institution, who does not have a direct interest in the outcome of the
hearing.
(d) The educational agency or institution shall give the parent or eligible student a full
and fair opportunity to present evidence relevant to the issues raised under § 99.21. The
parent or eligible student may, at their own expense, be assisted or represented by one or
more individuals of his or her own choice, including an attorney.
(e) The educational agency or institution shall make its decision in writing within a
reasonable period of time after the hearing.
(f) The decision must be based solely on the evidence presented at the hearing, and must
include a summary of the evidence and the reasons for the decision.
(Authority: 20 U.S.C 1232g(a)(2))
Subpart D - May an Educational Agency or Institution Disclose Personally Identifiable
Information From Education Records?
§ 99.30 Under what conditions is prior consent required to disclose information?
(a) The parent or eligible student shall provide a signed and dated written consent before
an educational agency or institution discloses personally identifiable information from the
student’s education records, except as provided in § 99.31.
(b) The written consent must:
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(1) Specify the records that may be disclosed;
(2) State the purpose of the disclosure; and
(3) Identify the party or class of parties to whom the disclosure may be made.
(c) When a disclosure is made under paragraph (a) of this section:
(1) If a parent or eligible student so requests, the educational agency or institution
shall provide him or her with a copy of the records disclosed; and
(2) If the parent of a student who is not an eligible student so requests, the agency or
institution shall provide the student with a copy of the records disclosed.
(Authority: 20 U.S.C 1232g (b)(1) and (b)(2)(A))
§99.31 Under what conditions is prior consent not required to disclose information?
(a) An educational agency or institution may disclose personally identifiable information
from an education record of a student without the consent required by § 99.30 if the
disclosure meets one or more of the following conditions:
(1) The disclosure is to other school officials, including teachers, within the agency or
institution whom the agency or institution has determined to have legitimate educational
interests.
(2) The disclosure is, subject to the requirements of § 99.34, to officials of another
school, school system, or institution of postsecondary education where the student seeks or
intends to enroll.
(3) The disclosure is, subject to the requirements of § 99.35, to authorized
representatives of -
(i) The Comptroller General of the United States;
(ii) The Attorney General of the United States;
(iii) The Secretary; or
(iv) State and local educational authorities.
(4)
(i) The disclosure is in connection with financial aid for which the student has
applied or which the student has received, if the information is necessary for such purposes
as to:
(A) Determine eligibility for the aid;
(B) Determine the amount of the aid;
(C) Determine the conditions for the aid; or
(D) Enforce the terms and conditions of the aid.
(ii) As used in paragraph (a)(4)(i) of this section, “financial aid” means a payment
of funds provided to an individual (or a payment in kind of tangible or intangible property to
the individual) that is conditioned on the individual’s attendance at an educational agency or
institution.
(Authority: 20 U.S.C 1232g(b)(1)(D))
(5)
(i) The disclosure is to State and local officials or authorities to whom this
information is specifically -
(A) Allowed to be reported or disclosed pursuant to a State statute adopted
before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile
justice system and the system’s ability to effectively serve the student whose records are
released; or
(B) Allowed to be reported or disclosed pursuant to a State statute adopted
after November 19, 1974, subject to the requirements of § 99.38.
(ii) Paragraph (a)(5)(1) of this section does not prevent a State from further
limiting the number or type of State or local officials to whom disclosures may be made
under that paragraph.
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(6)
(i) The disclosure is to organizations conducting studies for, or on behalf of,
educational agencies or institutions to:
(A) Develop, validate, or administer predictive tests;
(B) Administer student aid programs; or
(C) Improve instruction.
(ii) The agency or institution may disclose information under paragraph (a)(6)(i)
of this section only if:
(A) The study is conducted in a manner that does not permit personal
identification of parents and students by individuals other than representatives of the
organization; and
(B) The information is destroyed when no longer needed for the purposes for
which the study was conducted.
(iii) If this Office determines that a third party outside the educational agency or
institution to whom information is disclosed under this paragraph (a)(6) violates paragraph
(a)(6)(ii)(B) of this section, the educational agency or institution may not allow that third
party access to personally identifiable information from education records for at least five
years.
(iv) For the purposes of paragraph (a)(6) of this section, the term “organization”
includes, but is not limited to, Federal, State, and local agencies, and independent
organizations.
(7) The disclosure is to accrediting organizations to carry out their accrediting
functions.
(8) The disclosure is to parents, as defined in § 99.3, of a dependent student, as
defined in section 152 of the Internal Revenue Code of 1986.
(9)
(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.
(ii) The educational agency or institution may disclose information under
paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort
to notify the parent or eligible student of the order or subpoena in advance of compliance, so
that the parent or eligible student may seek protective action, unless the disclosure is in
compliance with -
(A) A Federal grand jury subpoena and the court has ordered that the
existence or the contents of the subpoena or the information furnished in response to the
subpoena not be disclosed; or
(B) Any other subpoena issued for a law enforcement purpose and the court or
other issuing agency has ordered that the existence or the contents of the subpoena or the
information furnished in response to the subpoena not be disclosed.
(iii)
(A) If an educational agency or institution initiates legal action against a
parent or student, the educational agency or institution may disclose to the court, without a
court order or subpoena, the education records of the student that are relevant for the
educational agency or institution to proceed with the legal action as plaintiff.
(B) If a parent or eligible student initiates legal action against an educational
agency or institution, the educational agency or institution may disclose to the court, without
a court order or subpoena, the student’s education records that are relevant for the
educational agency or institution to defend itself.
(10) The disclosure is in connection with a health or safety emergency, under the
conditions described in § 99.36.
(11) The disclosure is information the educational agency or institution has
designated as “directory information, ” under the conditions described in § 99.37.
(12) The disclosure is to the parent of a student who is not an eligible student or to the
student.
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(13) The disclosure, subject to the requirements in § 99.39, is to a victim of an
alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may
only include the final results of the disciplinary proceeding conducted by the institution of
postsecondary education with respect to that alleged crime or offense. The institution may
disclose the final results of the disciplinary proceeding, regardless of whether the institution
concluded a violation was committed.
(14)
(i) The disclosure, subject to the requirements in § 99.39, is in connection with a
disciplinary proceeding at an institution of postsecondary education. The institution must not
disclose the final results of the disciplinary proceeding unless it determines that -
(A) The student is an alleged perpetrator of a crime of violence or nonforcible
sex offense; and
(B) With respect to the allegation made against him or her, the student has
committed a violation of the institution’s rules or policies.
(ii) The institution may not disclose the name of any other student, including a
victim or witness, without the prior written consent of the other student.
(iii) This section applies only to disciplinary proceedings in which the final results
were reached on or after October 7, 1998.
(15)
(i) The disclosure is to a parent of a student at an institution of postsecondary
education regarding the student’s violation of any Federal, State, or local law, or of any rule
or policy of the institution, governing the use or possession of alcohol or a controlled
substance if -
(A) The institution determines that the student has committed a disciplinary
violation with respect to that use or possession; and
(B) The student is under the age of 21 at the time of the disclosure to the
parent.
(ii) Paragraph (a)(15) of this section does not supersede any provision of State
law that prohibits an institution of postsecondary education from disclosing information.
(b) Paragraph (a) of this section does not forbid an educational agency or institution from
disclosing, nor does it require an educational agency or institution to disclose, personally
identifiable information from the education records of a student to any parties under
paragraphs (a)(1) through (11), (13), (14), and (15) of this section.
(Authority: 20 U.S.C 1232g(a)(5)(A), (b)(1), (b)(2)(B), (b)(6), (h) and (i))
§ 99.32 What recordkeeping requirements exist concerning requests and disclosures?
(a)
(1) An educational agency or institution shall maintain a record of each request for
access to and each disclosure of personally identifiable information from the education
records of each student.
(2) The agency or institution shall maintain the record with the education records of
the student as long as the records are maintained.
(3) For each request or disclosure the record must include:
(i) The parties who have requested or received personally identifiable information
from the education records; and
(ii) The legitimate interests the parties had in requesting or obtaining the
information.
(b) If an educational agency or institution discloses personally identifiable information
from an education record with the understanding authorized under § 99.33(b), the record of
the disclosure required under this section must include:
(1) The names of the additional parties to which the receiving party may disclose the
information on behalf of the educational agency or institution; and
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(2) The legitimate interests under § 99.31 which each of the additional parties has in
requesting or obtaining the information.
(c) The following parties may inspect the record relating to each student:
(1) The parent or eligible student.
(2) The school official or his or her assistants who are responsible for the custody of
the records.
(3) Those parties authorized in § 99.31(a)(1) and (3) for the purposes of auditing the
recordkeeping procedures of the educational agency or institution.
(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure
was to:
(1) The parent or eligible student;
(2) A school official under § 99.31 (a)(1);
(3) A party with written consent from the parent or eligible student;
(4) A party seeking directory information; or
(5) A party seeking or receiving the records as directed by a Federal grand jury or
other law enforcement subpoena and the issuing court or other issuing agency has ordered
that the existence or the contents of the subpoena or the information furnished in response to
the subpoena not be disclosed.
(Approved by the Office of Management and Budget under control number 1880–0508)
(Authority: 20 U.S.C 1232g(b)(1) and (b)(4)(A)
§ 99.33 What limitations apply to the redisclosure of information?
(a)
(1) An educational agency or institution may disclose personally identifiable
information from an education record only on the condition that the party to whom the
information is disclosed will not disclose the information to any other party without the prior
consent of the parent or eligible student.
(2) The officers, employees, and agents of a party that receives information under
paragraph (a)(1) of this section may use the information, but only for the purposes for which
the disclosure was made.
(b) Paragraph (a) of this section does not prevent an educational agency or institution
from disclosing personally identifiable information with the understanding that the party
receiving the information may make further disclosures of the information on behalf of the
educational agency or institution if:
(1) The disclosures meet the requirements of § 99.31; and
(2) The educational agency or institution has complied with the requirements of
§ 99.32(b).
(c) Paragraph (a) of this section does not apply to disclosures made to parents of
dependent students under § 99.31(a)(8), to disclosures made pursuant to court orders,
lawfully issued subpoenas, or litigation under § 99.31(a)(9), to disclosures of directory
information under § 99.31(a)(11), to disclosures made to a parent or student under
§ 99.31(a)(12), to disclosures made in connection with a disciplinary proceeding under
§ 99.31(a)(14), or to disclosures made to parents under § 99.31(a)(15).
(d) Except for disclosures under § 99.31(a)(9), (11) and (12), an educational agency or
institution shall inform a party to whom disclosure is made of the requirements of this
section.
(e) If this Office determines that a third party improperly rediscloses personally
identifiable information from education records in violation of § 99.33(a) of this section, the
educational agency or institution may not allow that third party access to personally
identifiable information from education records for at least five years.
(Authority: 20 U.S.C 1232g(b)(4)(B))
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§ 99.34 What conditions apply to disclosure of information to other educational
agencies or institutions?
(a) An educational agency or institution that discloses an education record under
§ 99.31 (a)(2) shall:
(1) Make a reasonable attempt to notify the parent or eligible student at the last
known address of the parent or eligible student, unless:
(i) The disclosure is initiated by the parent or eligible student; or
(ii) The annual notification of the agency or institution under § 99.7 includes a
notice that the agency or institution forwards education records to other agencies or
institutions that have requested the records and in which the student seeks or intends to
enroll:
(2) Give the parent or eligible student, upon request, a copy of the record that was
disclosed; and
(3) Give the parent or eligible student, upon request, an opportunity for a hearing
under Subpart C.
(b) An educational agency or institution may disclose an education record of a student in
attendance to another educational agency or institution if:
(1) The student is enrolled in or receives services from the other agency or institution;
and
(2) The disclosure meets the requirements of paragraph (a) of this section.
(Authority: 20 U.S.C 1232g(b)(1)(B))
§ 99.35 What conditions apply to disclosure of information for Federal or State
program purposes?
(a) The officials listed in § 99.31(a)(3) may have access to education records in
connection with an audit or evaluation of Federal or State supported education programs, or
for the enforcement of or compliance with Federal legal requirements which relate to those
programs.
(b) Information that is collected under paragraph (a) of this section must:
(1) Be protected in a manner that does not permit personal identification of
individuals by anyone except the officials referred to in paragraph (a) of this section; and
(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of
this section.
(c) Paragraph (b) of this section does not apply if:
(1) The parent or eligible student has given written consent for the disclosure under
§ 99.30; or
(2) The collection of personally identifiable information is specifically authorized by
Federal law.
(Authority: 20 U.S.C 1232g(b)(3))
§ 99.36 What conditions apply to disclosure of information in health and safety
emergencies?
(a) An educational agency or institution may disclose personally identifiable information
from an education record to appropriate parties in connection with an emergency if
knowledge of the information is necessary to protect the health or safety of the student or
other individuals.
(b) Nothing in the Act or this part shall prevent an educational agency or institution from -
(1) Including in the education records of a student appropriate information
concerning disciplinary action taken against the student for conduct that posed a significant
risk to the safety or well-being of that student, other students, or other members of the school
community;
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(2) Disclosing appropriate information maintained under paragraph (b)(1) of this
section to teachers and school officials within the agency or institution who the agency or
institution has determined have legitimate educational interests in the behavior of the student;
or
(3) Disclosing appropriate information maintained under paragraph (b)(1) of this
section to teachers and school officials in other schools who have been determined to have
legitimate educational interests in the behavior of the student.
(c) Paragraphs (a) and (b) of this section will be strictly construed.
(Authority: 20 U.S.C 1232g (b)(1)(I) and (h))
§ 99.37 What conditions apply to disclosing directory information?
(a) An educational agency or institution may disclose directory information if it has given
public notice to parents of students in attendance and eligible students in attendance at the
agency or institution of:
(1) The types of personally identifiable information that the agency or institution has
designated as directory information;
(2) A parent’s or eligible student’s right to refuse to let the agency or institution
designate any or all of those types of information about the student as directory information;
and
(3) The period of time within which a parent or eligible student has to notify the
agency or institution in writing that he or she does not want any or all of those types of
information about the student designated as directory information.
(b) An educational agency or institution may disclose directory information about former
students without meeting the conditions in paragraph (a) of this section.
(Authority: 20 U.S.C 1232g (a)(5) (A) and (B))
§ 99.38 What conditions apply to disclosure of information as permitted by State
statute adopted after November 19, 1974 concerning the juvenile justice system?
(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system
and the system’s ability to effectively serve, prior to adjudication, the student whose records
are released, an educational agency or institution may disclose education records under
§ 99.31(a)(5)(i)(B).
(b) The officials and authorities to whom the records are disclosed shall certify in writing
to the educational agency or institution that the information will not be disclosed to any other
party, except as provided under State law, without the prior written consent of the parent of
the student.
(Authority: 20 U.S.C 1232g((b)(1)(J))
§ 99.39 What definitions apply to the nonconsensual disclosure of records by
postsecondary educational institutions in connection with disciplinary proceedings
concerning crimes of violence or non-forcible sex offenses?
As used in this part:
“Alleged perpetrator of a crime of violence” is a student who is alleged to have
committed acts that would, if proven, constitute any of the following offenses or attempts to
commit the following offenses that are defined in appendix A to this part:
Arson
Assault offenses
Burglary
Criminal homicide - manslaughter by negligence
Criminal homicide - murder and nonnegligent manslaughter
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Destruction/damage/vandalism of property
Kidnapping/abduction
Robbery
Forcible sex offenses.
“Alleged perpetrator of a nonforcible sex offense” means a student who is alleged to have
committed acts that, if proven, would constitute statutory rape or incest. These offenses are
defined in appendix A to this part.
“Final results” means a decision or determination, made by an honor court or council,
committee, commission, or other entity authorized to resolve disciplinary matters within the
institution. The disclosure of final results must include only the name of the student, the
violation committed, and any sanction imposed by the institution against the student.
“Sanction imposed” means a description of the disciplinary action taken by the institution,
the date of its imposition, and its duration.
“Violation committed” means the institutional rules or code sections that were violated and
any essential findings supporting the institution’s conclusion that the violation was
committed.
(Authority: 20 U.S.C 1232g (b)(6))
Subpart E - What Are the Enforcement Procedures?
§ 99.60 What functions has the Secretary delegated to the Office and to the Office of
Administrative Law Judges?
(a) For the purposes of this subpart, “Office” means the Family Policy Compliance
Office, U.S. Department of Education.
(b) The Secretary designates the Office to:
(1) Investigate, process, and review complaints and violations under the Act and this
part; and
(2) Provide technical assistance to ensure compliance with the Act and this part.
(c) The Secretary designates the Office of Administrative Law Judges to act as the
Review Board required under the Act to enforce the Act with respect to all applicable
programs. The term “applicable program” is defined in section 400 of the General Education
Provisions Act.
(Authority: 20 U.S.C 1232g (f) and (g), 1234)
§ 99.61 What responsibility does an educational agency or institution have concerning
conflict with State or local laws?
If an educational agency or institution determines that it cannot comply with the Act or
this part due to a conflict with State or local law, it shall notify the Office within 45 days,
giving the text and citation of the conflicting law.
(Authority: 20 U.S.C 1232g (f))
§ 99.62 What information must an educational agency or institution submit to the
Office?
The Office may require an educational agency or institution to submit reports containing
information necessary to resolve complaints under the Act and the regulations in this part.
(Authority: 20 U.S.C 1232g (f) and (g))
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§ 99.63 Where are complaints filed?
A parent or eligible student may file a written complaint with the Office regarding an
alleged violation under the Act and this part. The Office’s address is: Family Policy
Compliance Office, U.S. Department of Education, 400 Maryland Avenue, S.W.,
Washington, DC 20202-4605.
(Authority: 20 U.S.C 1232g (g))
§ 99.64 What is the complaint procedure?
(a) A complaint filed under § 99.63 must contain specific allegations of fact giving
reasonable cause to believe that a violation of the Act or this part has occurred.
(b) The Office investigates each timely complaint to determine whether the educational
agency or institution has failed to comply with the provisions of the Act or this part.
(c) A timely complaint is defined as an allegation of a violation of the Act that is
submitted to the Office within 180 days of the date of the alleged violation or of the date that
the complainant knew or reasonably should have known of the alleged violation.
(d) The Office may extend the time limit in this section for good cause shown.
(Authority: 20 U.S.C 1232g(f))
§ 99.65 What is the content of the notice of complaint issued by the Office?
(a) The Office notifies the complainant and the educational agency or institution in
writing if it initiates an investigation of a complaint under § 99.64(b). The notice to the
educational agency or institution -
(1) Includes the substance of the alleged violation; and
(2) Asks the agency or institution to submit a written response to the complaint.
(b) The Office notifies the complainant if it does not initiate an investigation of a
complaint because the complaint fails to meet the requirements of § 99.64.
(Authority: 20 U.S.C 1232g(g)
§ 99.66 What are the responsibilities of the Office in the enforcement process?
(a) The Office reviews the complaint and response and may permit the parties to submit
further written or oral arguments or information.
(b) Following its investigation, the Office provides to the complainant and the
educational agency or institution written notice of its findings and the basis for its findings.
(c) If the Office finds that the educational agency or institution has not complied with the
Act or this part, the notice under paragraph (b) of this section:
(1) Includes a statement of the specific steps that the agency or institution must take
to comply; and
(2) Provides a reasonable period of time, given all of the circumstances of the case,
during which the educational agency or institution may comply voluntarily.
(Authority: 20 U.S.C 1232g(f)
§ 99.67 How does the Secretary enforce decisions?
(a) If the educational agency or institution does not comply during the period of time set
under §99.66(c), the Secretary may, in accordance with part E of the General Education
Provisions Act -
(1) Withhold further payments under any applicable program;
(2) Issue a compliant to compel compliance through a cease-and -desist order; or
(3) Terminate eligibility to receive funding under any applicable program.
(b) If, after an investigation under § 99.66, the Secretary finds that an educational agency
or institution has complied voluntarily with the Act or this part, the Secretary provides the
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complainant and the agency or institution written notice of the decision and the basis for the
decision.
NOTE: 34 CFR part 78 contains the regulations of the Education Appeal Board.
(Authority: 20 U.S.C. 1232g(f); 20 U.S.C. 1234)
Appendix A to Part 99 – Crimes of Violence Definitions
Arson
Any willful or malicious burning or attempt to burn, with or without intent to defraud, a
dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.
Assault Offenses
An unlawful attack by one person upon another.
(NOTE: By definition there can be no “attempted” assaults, only “completed” assaults.)
(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose
of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied
by the use of a weapon or by means likely to produce death or great bodily harm. (It is not
necessary that injury result from an aggravated assault when a gun, knife, or other weapon is
used which could and probably would result in serious injury if the crime were successfully
completed.)
(b) Simple Assault. An unlawful physical attack by one person upon another where
neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated
bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe
laceration, or loss of consciousness.
(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm
through the use of threatening words or other conduct, or both, but without displaying a
weapon or subjecting the victim to actual physical attack.
(NOTE: This offense includes stalking.)
Burglary
The unlawful entry into a building or other structure with the intent to commit a felony or a
theft.
Criminal Homicide - Manslaughter by Negligence.
The killing of another person through gross negligence.
Criminal Homicide - Murder and Nonnegligent Manslaughter
The willful (nonnegligent) killing of one human being by another.
Destruction/Damage/Vandalism of Property
To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal
property without the consent of the owner or the person having custody or control of it.
Kidnapping/Abduction
The unlawful seizure, transportation, or detention of a person, or any combination of these
actions, against his or her will, or of a minor without the consent of his or her custodial
parent(s) or legal guardian.
(NOTE: Kidnapping/Abduction includes hostage taking.)
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Robbery
The taking of, or attempting to take, anything of value under confrontational circumstances
from the control, custody, or care of a person or persons by force or threat of force or
violence or by putting the victim in fear.
(NOTE: Carjackings are robbery offenses where a motor vehicle is taken through force or
threat of force.)
Sex Offenses, Forcible
Any sexual act directed against another person, forcibly or against that person’s will, or both;
or not forcibly or against the person’s will where the victim is incapable of giving consent.
(a) Forcible Rape (Except “Statutory Rape”). The carnal knowledge of a person, forcibly
or against that person’s will, or both; or not forcibly or against the person’s will where the
victim is incapable of giving consent because of his or her temporary or permanent mental or
physical incapacity (or because of his or her youth).
(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or
against that person’s will, or both; or not forcibly or against the person’s will where the
victim is incapable of giving consent because of his or her youth or because of his or her
temporary or permanent mental or physical incapacity.
(c) Sexual Assault With An Object. To use an object or instrument to unlawfully
penetrate, however slightly, the genital or anal opening of the body of another person,
forcibly or against that person’s will, or both; or not forcibly or against the person’s will
where the victim is incapable of giving consent because of his or her youth or because of his
or her temporary or permanent mental or physical incapacity.
(NOTE: An “object” or “instrument” is anything used by the offender other than the
offender’s genitalia. Examples are a finger, bottle, handgun, stick, etc..)
(d) Forcible Fondling. The touching of the private body parts of another person for the
purpose of sexual gratification, forcibly or against that person’s will, or both; or not forcibly
or against the person’s will where the victim is incapable of giving consent because of his or
her youth or because of his or her temporary or permanent mental or physical incapacity.
(NOTE: Forcible Fondling includes “Indecent Liberties” and “Child Molesting.”)
Nonforcible Sex Offenses
(Except “Prostitution Offenses”). Unlawful, nonforcible sexual intercourse.
(a) Incest. Nonforcible sexual intercourse between persons who are related to each other
within the degrees wherein marriage is prohibited by law.
(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the
statutory age of consent.
(Authority: 20 U.S.C 1232g(b)(6)and 18 U.S.C 16)
Family Educational Rights and
Privacy Act Regulations
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Michigan Department of Education
Statement of Assurance of Compliance with Federal Law
The Michigan Department of Education complies with all Federal laws and regulations
prohibiting discrimination and with all requirements and regulations of the U.S. Department
of Education. It is the policy of the Michigan Department of Education that no person on the
basis of race, color, religion, national origin or ancestry, age, sex, marital status or handicap
shall be discriminated against, excluded from participation in, denied the benefits of or
otherwise be subjected to discrimination in any program or activity for which it is responsible
or for which it receives financial assistance from the U.S. Department of Education.

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