Table of Contents
Office of Special Education Programs'
Overheads from OSEP Regional Trainings
on the IDEA '97 Regulations
Overheads for
Subpart B (State and Local Eligibility -- 50 Overheads)
___________________________
Produced by...
NICHCY
National Information Center for Children and Youth with Disabilities
P.O. Box 1492
Washington, DC 20013
1-800-695-0285 (Voice/TTY)
(202) 884-8200 (Voice/TTY)
E-mail: nichcy@aed.org
URL: http://www.nichcy.org
_____________________
OH Subpart B - 1
Individuals with Disabilities Education Act
Regulations: Subpart B
OH Subpart B - 2
Condition of Assistance (§300.110)
Requirement:
To be eligible for funds under Part B, State must demonstrate to the satisfaction of the Secretary that it has in effect policies and procedures to ensure it meets all specific conditions for State eligibility.
Final Rules Add: To meet the requirement, the State must have on file with the Secretary:
- Information specified in the specific conditions of State eligibility that it uses to implement the requirement; and
- Copies of all applicable State statutes, regulations, and other State documents that show the basis of that information.
OH Subpart B - 3
Free Appropriate Public Education (§300.121)
FAPE beginning at age 3. Each State must ensure that:
- obligation to make FAPE available begins no later than child's 3rd birthday, and
- an IEP or an IFSP is in effect for the child by that date.
What if the child turns three in the summer?
- The child's IEP team determines the date services under the IEP or IFSP will begin.
OH Subpart B - 4
FAPE for Children Suspended or Expelled from School [§300.121(d)]
- Need not provide services to a child with a disability during first 10 school days in that school year that the child is removed for violation of school conduct rules-if services are not provided to nondisabled children who are similarly removed.
- If child with disability has been removed from his or her placement for more than 10 school days in that school year, the public agency, for rest of the removals (in that school year), must:
OH Subpart B - 5
1. Provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in the IEP, if removal is...
...for not more than 10 consecutive school days (if not a change in placement); or
...for behavior that is not a manifestation of child's disability; and
2. Provide services consistent with §300.522 (regarding determination of an interim alternative educational setting), if removal is...
...for drugs or weapons offenses; or
...based on a hearing officer's determination that maintaining the current placement is substantially likely to result in injury to self or others.
OH Subpart B - 6
Who determines services?
- School personnel, in consultation with child's special education teacher, determine the extent to which services are necessary if child is removed under authority of school personnel for not more than 10 consecutive school days (if not a change in placement);
- The IEP team determines the extent to which services are necessary if child is removed because behavior is not a manifestation of child's disability.
Clarifications in the Discussion:
- The Act should not be read to always require the provision of services when child is removed from school for just a few days.
OH Subpart B - 7
On the other hand:
- At some point repeated exclusions of a child with a disability from the educational process will have an adverse effect on the child's ability to succeed.
- The law ensures that even disabled children who engage in dangerous acts, such as carrying a weapon to school, must receive appropriate services.
Therefore:
- It is reasonable that disabled children who have been repeatedly suspended for minor violations of school codes not suffer greater consequences from exclusions from school than children who have committed the most significant offenses.
OH Subpart B - 8
- Once a disabled child has been removed from school for more than 10 school days in a school year, it is reasonable for...
... appropriate school personnel, in consultation with the child's special education teacher (if the child is removed 10 school days or less), or
... the child's IEP team (if the child is to be removed for behavior not a manifestation of his or her disability)...
...to make informed educational decisions about whether (and to what extent) services are necessary to enable the child to make appropriate progress-
(1) in the general curriculum, and
(2) toward the goals in the child's
IEP.
OH Subpart B - 9
Child Advancing from Grade to Grade [§300.121(e)]
Each State must ensure that FAPE is available to a child with a disability who needs special education and related services...even though the child is progressing from grade to grade.
Determinations must be made on an individual basis by the group within the child's LEA responsible for making such determinations.
OH Subpart B - 10
Exception to FAPE for Certain Ages (§300.122)
General Obligation. All children, aged 3 through 21, residing in the State have the right to FAPE, including children with disabilities who have been suspended or expelled from school.
This obligation does not apply to:
(1) children aged 3, 4, 5, 18, 19, 20, or 21 to the extent inconsistent with State law or practice, court order, etc.
(2) students 18 through 21 to the extent State law does not require special education and related services be provided to disabled students who, in their last educational placement prior to their incarceration in an adult correctional facility:
... were not actually identified as being a child with a disability, or
... did not have an IEP under Part B of IDEA.
OH Subpart B - 11
Note: New Provision! The exception does not apply to
students who:
...had been identified as a child with a disability and had received services in accordance with an IEP, but who left school prior to their incarceration; or
...did not have an IEP in their last educational setting, but who had actually been identified as a child with a disability.
(3) Students with disabilities who have graduated from high school with a regular high school diploma.
Note: The exception does not apply to students with disabilities who have graduated but have not been awarded a regular HS diploma.
Remember: Graduation from HS with a regular diploma constitutes a change in placement, requiring written prior notice. [A reevaluation is not required before termination (a) with a regular HS diploma, or (b) by "aging out."]
OH Subpart B - 12
Clarifications in the Discussion: (§300.122)
- Exiting or graduating a student with a disability with a credential that is different from the diploma granted to nondisabled students does not end an individual's eligibility for Part B services, and is not a change in placement requiring notice.
- If a student with a disability is awarded a certificate of attendance or other certificate of graduation instead of a regular HS diploma, the student will still be entitled to FAPE until he or she reaches the age at which eligibility ceases in the State or earns a regular HS diploma.
- The SEA or LEA may elect to use Part B funds for services for a child who has graduated with a regular HS diploma but who is still within the State-mandated age range for Part B eligibility. However...
...the student cannot be included in the State's
Part B Child Count.
OH Subpart B - 13
Child Find (§300.125)
Remains the same except for clarification that child find requirements apply to:
- children who are suspected of being a child with a disability and in need of special education, even though they are advancing from grade to grade; and
- highly mobile children with disabilities (such as migrant or homeless).
Child find for children birth through age 2 when the SEA and lead agency for Part C are different:
- If the Part C lead agency will be participating in child find activities under Part B, the name of the State agency and a description and extent of the Part C lead agency's participation must be included under §300.125(b)(2) (Documents relating to child find).
OH Subpart B - 14
- If the SEA agrees, the Part C lead agency's participation may include actual implementation of child find activities for infants and toddlers with disabilities.
- The use of an interagency agreement or other mechanism for lead agency's participation does not alter or diminish the responsibility of the SEA to ensure compliance with child find requirements under §300.125.
The collection and use of data to meet the child find requirements are subject to the confidentiality requirements.
Clarifications in the Discussion:
- The services and placement needed by each child with a disability may not be determined or limited based on a category of disability.
OH Subpart B - 15
- Child find and evaluation procedures under Part C must be followed when the purpose is to locate, identify, and evaluate infants and toddlers with disabilities who may be eligible under Part C.
- Child find and evaluation procedures under Part B must be followed when the purpose is to locate, identify, and evaluate children with disabilities who may be eligible under Part B.
- In States where the SEA and Part C lead agency are different, each agency remains responsible for ensuring that the child find responsibilities under its program are met, even if the agencies delegate to one agency the primary role in child find for the birth through two population.
OH Subpart B - 16
Transition of Children from Part C to Preschool Programs (§300.132)
Remains as in NPRM. The State must have on file with the Secretary policies and procedures to ensure that-
- Children participating in early intervention programs assisted under Part C and who will participate in preschool programs assisted under Part B experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(8);
- By the child's third birthday, an IEP or, in certain specific circumstances, an IFSP, has been developed and is being implemented for the child consistent with §300.121(c) (FAPE for children beginning at age 3); and
OH Subpart B - 17
- Each LEA will participate in transition planning conferences arranged by the designated lead agency under section 637(a)(8) of the Act.
Clarification in the Discussion:
- The pendency provision of §300.514(a) does not apply when a child is transitioning from a program developed under Part C to provide early intervention services into a program developed under Part B to provide FAPE.
OH Subpart B - 18
Comprehensive System of Personnel Development (§300.135)
Remains as in NPRM.
Clarifications in the Discussion:
- The Act and regulations leave to each State the flexibility to determine the specific personnel development needs in the State.
- Matters related to the participation of private school staff in inservice training and other personnel development activities are decisions left to the discretion of each State and LEA.
- States will be able to use the information provided to meet the CSPD requirements [§300.135(a)(2)] as part of their State Improvement Plan, if they choose to do so.
OH Subpart B - 19
Personnel Standards (§300.136)
Continues to address appropriate professional development and highest requirements in the State, and defines profession or discipline.
- The final regulations make clear that, in defining profession or discipline, a specific category is not limited to traditional occupational categories.
In developing its policies and procedures required in §300.136(b), relating to the establishment and maintenance of standards, the final regulations make clear that each State may...
- determine the specific occupational categories required to provide special education and related services within the State; and
- revise and expand those categories as needed.
OH Subpart B - 20
The final rules also make clear that:
- Nothing in Part B 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 IDEA.
- 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 §300.136.
OH Subpart B - 21
Use of Paraprofessionals and Assistants:
- This section tracks the statutory provision that permits, but does not require, the use of paraprofessionals and assistants who are appropriately trained and supervised to assist in the provision of special education and related services under Part B.
- Use of paraprofessionals and assistants is contingent on State law, regulation, etc., giving States the option of determining whether they can be used to assist in the provision of special education and related services under Part B, and, if so, to what extent their use would be permissible.
- States have the flexibility to determine the scope of their responsibilities.
OH Subpart B - 22
- Final regulations do not specify any particular standard for persons providing special education and related services, but instead leave such determinations to States.
Therefore...there is no need to specify any particular standards for paraprofessionals and assistants or their supervision.
- Since IDEA provides that paraprofessionals and assistants may assist in the provision of special education and related services, their use as teachers would be inconsistent with a State's duty to ensure that personnel are appropriately and adequately trained.
- Part B does not require that public agencies give parents information on how paraprofessionals and assistants are assisting in the provision of services to their children.
However, public agencies are encouraged to do so.
OH Subpart B - 23
Policy to Address Shortage of Personnel [§300.136(g)]
- Incorporates essentially verbatim the new provision that permits States to adopt a policy allowing LEAs that have made a good faith effort to recruit and hire appropriately and adequately trained personnel to use the most qualified individuals available (under certain specific conditions) who are making satisfactory progress toward completing applicable coursework necessary to meet State standards within three years.
- Final regulations make clear that a State may still exercise this option even if the State has reached its established date for retraining or hiring of personnel to meet appropriate professional requirements of the State.
OH Subpart B - 24
- 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.
- A State that continues to experience shortages of qualified personnel must address these shortages in its comprehensive system of personnel development.
OH Subpart B - 25
Other Clarifications in the Discussion:
- Regulations require a State to use its own existing requirements to determine the standards appropriate to personnel who provide special education and related services under Part B.
- States may consider professionally-recognized standards in deciding what are appropriate professional requirements in the State. However, there is nothing in the statute that requires States to do so.
These matters appropriately are left to States.
OH Subpart B - 26
- The Act's personnel standards provisions and regulations [§300.136(c)] make it permissible for States to use individuals who do not meet the highest entry-level academic degree requirement applicable to their profession, provided...
...the State is taking steps to upgrade all personnel in that profession to appropriate professional requirements in the State by a specified date in the future.
- IDEA allows States the discretion to determine the "specified date" and does not prevent a State from making changes to that date.
Thus:
A State is not prohibited from extending its timeline for retraining or hiring of personnel to meet appropriate professional requirements in the State.
OH Subpart B - 27
Performance Goals and Indicators (§300.137)
Essentially tracks the statute.
Clarification in the Discussion:
- Regardless of whether a State has established goals for all children, it must establish goals and indicators for the performance of children with disabilities.
OH Subpart B - 28
Participation in Assessments (§300.138)
Regulations track the statute [Section 612(a)(17)] and add from Section 614(d)(1)(A)(v)(I) the requirement that there be appropriate modifications in administration, if necessary,in order for a child with a disability to participate in the assessment.
Clarifications in the Discussion:
- If IEP teams properly make individualized decisions about children's participation, it should be necessary to use alternate assessments for a relatively small percentage of children with disabilities.
OH Subpart B - 29
- Alternate assessments need to be aligned with the general curriculum standards set for all students and should not be assumed appropriate only for those students with significant cognitive impairments.
- The determination of what level of an assessment is appropriate for a particular child is to be made by the IEP team.
- Although SEAs and LEAs are not required to conduct alternate assessments until July 1, 2000, each is required to ensure, beginning July 1, 1998, that, if a child will not participate in the general assessment, his or her IEP documents how the child will be assessed.
OH Subpart B - 30
Reports Relating to Assessments (§300.139)
Final regulations track the statutory language with two notable clarifications:
1. Technical rewording makes clear that the requirement [at §300.139(a)(2)] to report performance results (if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children) applies to both regular and alternate assessments, and
2. Reports to the public must include aggregated data that include the performance of children with disabilities together with all other children.
OH Subpart B - 31
- A public agency is not precluded from also analyzing and reporting data in other ways...
...such as maintaining a trendline that was established prior to including children with disabilities in those assessments.
- Final regulations and the Act neither require nor prohibit States from disaggregating assessment results by disability category in reporting results to the public.
This is a matter that should be left to the discretion of each State.
OH Subpart B - 32
Methods of Ensuring Services (§300.142)
The NPRM tracked the statutory language and added provisions regarding children with disabilities who are covered by private insurance.
Final regulations continue to track the statute, modify the provisions regarding use of private insurance, and further clarify §300.142.
The regulations:
- Specify that a noneducational public agency may not disqualify an eligible service for Medicaid reimbursement because that service is provided in an educational context;
- Make clear that services must be provided in a timely manner by the LEA or State agency responsible for developing the child's IEP.
OH Subpart B - 33
The regulations also:
- Add a new paragraph (i) to clarify that nothing in this part (Part 300) should be construed to alter the requirement imposed on a State Medicaid agency, or any other agency administering a public insurance program under Federal statute, regulations, or policy for Title XIX or Title XXI of the Social Security Act, or any other public insurance program;
- Add a new paragraph regarding children with disabilities covered by public insurance;
- Delete the provision regarding the disclosure of personally identifiable information, since its contents were covered by FERPA; and
- Amend the provision regarding proceeds from public or private insurance.
OH Subpart B - 34
Children with Disabilities Who Are Covered by Public Insurance [§300.142(e)]
A public agency may use Medicaid or other public insurance to pay for services required under Part B, as permitted under the public insurance program, except the public agency may:
- not require parents to sign up for or enroll in order to receive FAPE;
- not require parents to incur an out-of-pocket expense (e.g., deductible or co-pay) incurred in filing a claim for service provided under Part B, but may pay the cost that the parent otherwise would be required to pay;
OH Subpart B - 35
- not use a child's benefits under a public insurance program if that use would-
(1) decrease available lifetime coverage or any other insurance benefit;
(2) result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the child outside of the time the child is in school;
(3) increase premiums or lead to the discontinuation of insurance; or
(4) risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.
OH Subpart B - 36
Children with Disabilities Who Are Covered by Private Insurance [§300.142(f)]
A public agency may access a parent's private insurance proceeds only if the parent provides informed consent.
Each time the public agency proposes to access the parent's private insurance proceeds, it must:
- obtain parent consent; and
- inform parents that their refusal to permit the public agency such access does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to parents.
OH Subpart B - 37
If the public agency is unable to obtain parent consent to use parent's private insurance, to ensure FAPE the public agency may use its Part B funds to pay for the service.
- The public agency may use its Part B funds to pay the cost the parents would otherwise have to pay if they consented to use of their private insurance or public insurance (e.g., deductible or co-pay).
OH Subpart B - 38
Proceeds from Public or Private Insurance [§300.142(h)]
Proceeds will not be treated as program income for purposes of 34 CFR 80.25.
If a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under Part B, those funds will not be considered "State or local" funds for purposes of the MOE provisions.
Conforming changes were made to §303.520 (Part C program).
Clarifications in the Discussion:
- If a public insurance program is billed for services provided under Part B, those services must meet the requirements of that program, including personnel standards that apply to that program, in addition to conforming to Part B.
OH Subpart B - 39
- Public agencies must fully inform parents:
...that they could incur financial consequences from the use of their private insurance to pay for services that the school district is required to provide under IDEA, which could leave them uninsured for subsequent services, and
...that the parents should check with their private insurance provider so that they understand the foreseeable future financial costs to themselves before they give consent.
OH Subpart B - 40
- Where there is no cost to the family or the child, public education agencies are encouraged to use the public insurance benefits to the extent possible.
- The public education agency is required to provide a service that is needed by the child and has been included in his or her IEP but that is not considered medically necessary under EPSDT or other public insurance programs.
- As for any other service required by a child's IEP, if a service on a child's IEP is provided by a public insurance program at a site separate from the child's school, the public education agency is responsible for ensuring that the transportation is at no cost to the child or family.
OH Subpart B - 41
Public Participation (§300.148)
A new section has been added, indicating that a State will be considered as having met the public participation requirement if...
- it can demonstrate that, prior to adopting that policy or procedure, it was subjected to public review and comment process as required by the State for other purposes, and
- it is comparable to and consistent with the public participation requirements of Part B.
Why was this addition made?
- An effective public participation process is critical.
- If a State has a public participation process that is comparable to and consistent with Part B requirements, it would be unnecessary and burdensome to require a State to repeat the process.
OH Subpart B - 42
Prohibition Against Commingling (§300.152)
- A State must have on file with the Secretary an assurance satisfactory with the Secretary that funds under Part B of IDEA are not commingled with State funds.
- A provision has been added that makes clear that this requirement is satisfied by the use of a separate accounting system that includes an audit trail of the expenditures of Part B funds.
- Separate bank accounts are not required.
OH Subpart B - 43
Maintenance of State Fiscal Effort (§300.154)
Section 300.154 has been amended to allow a State to demonstrate compliance on either a total or per capita basis.
Why?
- States should be able to demonstrate that they have not reduced the amount of State financial support for special education and related services for children with disabilities, whether made directly available for those services or otherwise made available in recognition of the excess costs of educating children with disabilities on either a total or per child basis.
OH Subpart B - 44
Annual Description of Use of the Part B Funds (§300.156)
The NPRM clarified a statutory provision requiring an annual description of the use of Part B funds to permit States (if there are no changes from the prior year) to submit a letter to that effect to meet the requirement.
Why?
- It is reasonable and appropriate to permit a State to submit a letter rather than the full description, if the information which it would submit for a given fiscal year is the same as the information that it previously submitted.
OH Subpart B - 45
Maintenance of Effort (§300.231)
The regulations track the statutory language and add provisions regarding the standard that an SEA would use to determine that an LEA complies with Part B requirements to maintain its level of expenditures for the education of children with disabilities.
The standard. An SEA determines an LEA's compliance for the purposes of establishing the LEA's eligibility for an award for a fiscal year if:
- the LEA budgets, for the education of children with disabilities, at least the same total or per-capita amount (from local funds only, or from a combination of State and local funds) as the LEA spent for that purpose from the same source for the most recent prior year for which information is available.
OH Subpart B - 46
- An LEA that relies on local funds for any fiscal year must ensure that the amount of local funds it budgets for education of children with disabilities in that year is at least the same, either in total or per capita, as the amount it spent for that purpose ...
...in the most recent fiscal year for which information is available, if that year is (or is before) the first fiscal year beginning on or after July 1, 1997; or
...if later, in the most recent fiscal year for which information is available and the standard was used to establish its compliance with MOE requirements.
- In determining an LEA's compliance with MOE requirements, an SEA may not consider expenditures made from funds provided by the Federal Government for which:
...the SEA must account to the Government, or
...the LEA must account to the Government directly or through the SEA.
OH Subpart B - 47
Exception to Maintenance of Effort (§300.232)
IDEA 97 allows certain exceptions to the MOE requirement. One such exception is the:
- voluntary departure, by retirement or otherwise, or departure for just cause, of special education and related services personnel.
The NPRM further clarified that such individuals must be replaced by qualified, lower-salaried staff.
OH Subpart B - 48
Final regulations add that, in order for an LEA to invoke the exception, the LEA must ensure that those voluntary departures or resignations and replacements are in full conformity with:
- existing school board policies in the agency;
- the applicable collective bargaining agreement in effect at that time; and
- applicable State statutes.
OH Subpart B - 49
Schoolwide Programs under Title I of ESEA (§300.234)
The NPRM followed the statutory provision and added some funding conditions.
Final regulations retain the statutory provisions along with the following funding conditions:
(1) The funds used in schoolwide programs must be considered as Federal Part B funds for purposes of the calculation required by §300.230(b) (excess cost) and (c) (supplement not supplant). And,
(2) The funds may be used without regard to the requirements of §300.230(a) (be expended in accordance with the provisions of Part 300).
OH Subpart B - 50
Except for the funding provisions just noted, all other requirements of Part B must be met by the LEA using Part B funds for schoolwide programs, including ensuring that children with disabilities in schoolwide program schools:
(1) receive services in accordance with a properly developed IEP; and
(2) are afforded all the rights and services guaranteed to children with disabilities under IDEA.
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