Dr. Mona Tawakkul Elsayed

Associate Prof. of Mental Health and Special Education

Technical Assistan

 

Technical Assistance

M w A w N w U w A w L

 

 

 

 

 

 


Special Transportation

 

 

 

 


 

 


                                               


مربع نص: Division of Exceptional Children Services
Office of Special Instructional Services
June 2002

 

 



 


 

 

Technical Assistance Manual:

Special Transportation

 

 

 

 


 

 

h Contents g

 

I.    Overview of Legal Responsibility

 

II.  Decision Making:  Individualized Education Program (IEP) and Section 504 Plan

 

III. General Requirements

 

1.    Aides and driver assistants

2.    Community based instruction

3.    Confidentiality

4.    Disagreements

5.    Driver training

6.    Emergency procedures

7.    Least restrictive alternative

8.    Minimum specifications for school buses

9.    Misconduct

10.   Service animals

11.   Shortened school day

12.   Special equipment

 

State Regulations

 

APPENDICES

 

A.  Guide: Determining Need for Special Transportation

B.   Glossary: Selected Portions of Federal Regulations

C.  Resources

 

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I.  Overview of Legal Responsibility

 

 

State laws and special transportation.  Kentucky school laws require the Kentucky Board of Education to establish standards for school districts transporting children to and from school (KRS 156.160).  These standards are established in Kentucky administrative regulations (see Title 702 Chapter 5).  State funds are provided for school districts transporting children (KRS 157.360).

 

Additional state funds are available to school districts providing transportation for eligible children with disabilities who require special transportation including special arrangements, special equipment or a special vehicle for transportation (702 KAR 5:100 and 5:120; KRS 157.370).  Children with disabilities may be determined eligible for special transportation under either the Individuals with Disabilities Education Act or under Section 504 of the Rehabilitation Act of 1973. 

 

A group of people in the district, knowledgeable about the child and the child's special needs, makes the decision about eligibility for special transportation.  The group of people deciding eligibility may be an Admissions and Release Committee (ARC) as described in the district's special education policies and procedures or a Section 504 committee as determined by the district's Section 504 policies and procedures.

 


Federal laws and special transportation.  Three federal laws are important to individuals with disabilities.  Section 504 of the Rehabilitation Act of 1973 (generally referred to as Section 504) was enacted to eliminate discrimination based on a handicap or disability in programs that receive federal financial assistance.  Another federal law, the Americans with Disabilities Act (ADA) passed in 1990, makes it unlawful to discriminate against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications.  The Individuals with Disabilities Education Act (IDEA - originally known as the Education of the Handicapped Act or P.L. 94-142) makes a free appropriate public education available to all children with disabilities and provides financial assistance to school districts (referred to as local education agencies or LEA the law) for the excess cost involved in providing special education and related services.

 

Section 504 and ADA.  Section 504 requires agencies and organizations that receive federal financial assistance to make their programs and activities accessible to people with disabilities.  Much of the language in the ADA, including terms such as ''reasonable accommodation," ''undue hardship" and "otherwise qualified,'' as well as the definition of disability, comes directly from Section 504 (see Section 122 of the ADA and Section 504 of the Rehabilitation Act). 

 

Public elementary and secondary school bus transportation is subject to Section 504 but not the ADA.  The House Public Works and Transportation Committee said it did not want "to require school systems receiving federal financial assistance to meet any different requirements under ADA than are currently required under Section 504" (House Report 101- 485, Part 1, p. 26).

 

Private schools that receive federal financial assistance are subject to Section 504 and thus exempt from the ADA's transportation provision, also.  However, a private school that does not receive federal funds is subject to the U. S. Department of Transportation (DOT) rules covering private entities not in the business of transporting people (ADA, Section 403 Special Categories and Exemptions, Subsections 453 and 454).

 

Regulations to carry out Section 504 of the 1973 law were not issued until 1977.  Congress amended the law in 1978 to cover programs and activities conducted by federal executive agencies and the U.S. Postal Service.  In 1980, responsibility for Section 504 transferred from the Department of Health, Education and Welfare to the Department of Justice.  Justice reissued the regulations with no changes.  In November 2000, the Section 504 regulations were amended to clarify that if an entity receives federal support, the non-discrimination rules apply to all operations of the entity.

 

With Section 504, individuals with disabilities gained access to employment and program opportunities.  Although there are no federal funds available under Section 504 or the ADA, the law applies to any recipient of federal financial assistance.  Congress does, however, make federal funds available to states and LEAs under Part B of the IDEA.

 

IDEA.  Part B of IDEA makes federal funds available to states providing educational services for children with disabilities who are eligible under IDEA.  As a condition for funding, states must have policies, procedures, and programs that are consistent with the federal program requirements. And in turn, each LEA to be eligible for funding must have local special education policies, procedures, and programs that meet the federal program requirements under IDEA.

 

LEAs use IDEA funds for the excess cost of educating children with disabilities who, because of the disability, need special education and related services.  Under IDEA, related services include transportation needed by an eligible child to travel in and around and to and from school, as well as, any specialized equipment.

 

Under the IDEA regulations, a child's need for special education is important since a child is not eligible for IDEA services unless the child (1) has a disability and (2) needs special education because of the disability.  The provision of related services under IDEA depends on the child's need for special education, since under IDEA a related service "must be necessary for a child to benefit from special education."  Therefore, if a child with a disability does not need special education there can be no related services covered under the IDEA.  (See definitions in Glossary, under 300.7.)

 

Section 504 covers more children with disabilities than IDEA since not all children with disabilities need special education.  Under Section 504, a child with a disability may require and receive related services, including transportation, even if the child does not need specially designed instruction.

 


 

 

 

 

 


Illustration

 

 

Under IDEA and Section 504, all special education and related services are provided at no cost to parents.

 

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[email protected](  Notes 

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Transportation Services (502) 564-4718

 

Exceptional Children Services (502) 564-4970

 

 

 

 

 

 

II.  Decision Making: Individualized Education Program (IEP) and

Section 504 Plan

 

 

The decision about eligibility for special transportation is made by (1) an Admissions and Release Committee (ARC) according to the local board of education's special education policies and procedures or (2) a committee established under Section 504 according to the local board of education's Section 504 policies and procedures.  If a child with a disability needs special transportation, an ARC describes the special transportation services the LEA will provide for the child in the individual education program (IEP) or a 504 committee describes the special transportation services the LEA will provide for the child in a 504 plan.  Each child with a disability who needs special transportation has either an IEP or Section 504 plan that describes the transportation services to be provided.

 

An ARC or a 504 committee makes its decisions based upon a complete evaluation of the child's need for special education and related services.   Transportation personnel may be included in the evaluation and placement process if the ARC or 504 committee suspects before the evaluation that the child may require special transportation services, or decides after the evaluation that the child does require special transportation services. 

 

Including district transportation staff in the evaluation and planning process as early as possible allows transportation staff to be better informed about the child's unique needs and provides an opportunity for the transportation staff to share with others in planning appropriate services.  Early involvement ensures that transportation personnel have adequate time to prepare before transporting the child. 


 

 

III.  General Requirements

 

1.      Aides and driver assistants

2.      Community based instruction

3.      Confidentiality

4.      Disagreements

5.      Driver training

6.      Emergency procedures

7.      Least restrictive alternative

8.      Minimum specifications for school buses

9.      Misconduct

10.   Service animals

11.   Shortened school day

12.   Special equipment

 

 

13.  Aides and driver assistants on the bus.

 

Some buses that transport children with disabilities need aides or driver assistants, some do not.  Each LEA decides what general situations or combination of situations may create the need to place a driver assistant on a bus.  For example, the local board of education may have a transportation policy requiring an aide or assistant on any bus transporting three or more children with physical disabilities for general safety.

 

Each bus transporting children who are three and four years old has at least one driver assistant.  The driver assistant delivers and receives each child safely to and from the parent, guardian, or a person authorized by the parent.  The driver assistant escorts any three or four year old child who must cross a roadway (702 KAR 5:150).

 

If a particular child with a disability needs the assistance of an aide to be transported on a bus, the LEA provides the aide.  For example, an aide may be necessary for a child with disabilities who requires more attention or assistance than the driver can safely provide (e.g., a child who is aggressive or a child who has self-abusive behavior, etc.). 

 

When developing the IEP or 504 plan, the ARC or 504 committee (1) considers the need for an aide and (2) decides if an aide is necessary.  The child's IEP or 504 plan specifies the type, nature and extent of the services to be provided by the LEA for the child.  In deciding the need for an aide for an individual child with disabilities, the ARC follows the LEA's special education policies and procedures for evaluation and developing an IEP or the 504 committee follows the LEA's policies and procedures for Section 504.  If, for example, the child is not able to follow instructions or if the child requires continuous monitoring for health related needs or behavior management, then the need for an aide or assistant on the bus should be considered.

 

 

2.   Community based instruction

 

Possible methods of transporting students to community instruction or job sites include: (1) board owned vehicles, (2) public transportation, (3) walking, (4) school bus, and (5) personal vehicles.  Whatever method used must meet the child's unique needs and comply with local board policies and procedures, as well as, state and federal requirements for transporting children.  For example, some boards do not allow use of employees' personal vehicles for transporting children.

 

14.          Confidentiality of personally identifiable information. 

 

All persons in the LEA, including transportation personnel, collecting or using personally identifiable information under IDEA must receive training or instruction regarding Kentucky's and the Family Educational Rights and Privacy Act (FERPA).  "Confidentiality" means the protection of personally identifiable data, information, and records collected, used, or maintained by an agency in the identification, evaluation, educational placement of a child, or the provision of free appropriate public education for a child with a disability.  Personally identifiable information includes: (1) the name of the child, the child's parent, or other family member; (2) the address of the child; (3) a personal identifier, such as the child's social security number or student number; or (4) a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.  (See 707 KAR 1:360.)

 

 

 

15.  Disagreements. 

 

For IDEA eligible children, disagreements between the parent and the LEA about the provision of special education and related services, including transportation, may be addressed through mediation services or through a due process hearing.  The LEA or parent may request mediation or a due process hearing through the Kentucky Department of Education.  Also, parents may file written complaints with the Kentucky Department of Education.  (See 707 KAR 1:340.)

 

Under Section 504, procedural safeguards including the opportunity for an impartial due process hearing must be available to resolve differences.  At least one person in the LEA is designated to coordinate the efforts of the LEA to comply with the Section 504 requirements.  Each LEA must adopt grievance procedures that incorporate appropriate due process standards and provide for prompt resolution of complaints under Section 504.  In addition, parents may file written complaints with the Office of Civil Rights, U. S. Department of Education.

 

16.  Driver training. 

 

Kentucky administrative regulations have specific requirements for school bus drivers' qualifications and responsibilities.  Kentucky administrative regulations require each school bus driver to participate in a training course, evaluation, and additional instruction developed by the Kentucky Department of Education (702 KAR 5:080, Section 8 and 702 KAR 5:100, Section 3).  The training includes laws and regulations, special education, critical situations, pupil management, accidents and emergency procedures.

 

Individual drivers may need additional specific training to learn about the particular type and nature of transportation needs for a particular child with disabilities.  For example, a driver and aide transporting a child who uses an assistive technology device may need specific training in the handling and transporting of the device used by the child.

 

Drivers and transportation aides need to know how to communicate with each child on the bus.  For example, the driver or aide needs to know how to communicate with a child that uses sign language, a language board, or other augmentative communication device.  In addition, drivers and aides may need to know how to use and operate other assistive devices used by the child.

 

In some cases, a driver and the aide may be trained in specific behavior management techniques designed for a particular child with disabilities.  It may be necessary in some cases for substitute bus drivers and substitute aides to receive additional training so that drivers or aides on leave from work do not adversely affect a particular child’s educational program.

 

17.  Emergency procedures. 

 

The training required for bus drivers under 702 KAR 5:080 includes accidents and emergency procedures as well as critical situations and first aid.  The driver and assistant may need additional training in emergency protocol procedures for a particular child with disabilities. 

 

The driver's training program covers emergency evacuation procedures. The LEA transportation department makes sure that bus drivers participate in regularly scheduled bus emergency evacuation drills.  If a child with a disability requires special procedures for evacuation during an emergency, specific plans are designed for an emergency evacuation.  The 504 plan or IEP describes the specific plans needed.

 

Information about the child may play an important role in protecting the child in case of an emergency.  Depending on the needs of the child with disabilities, information may include a picture of the child; an identification bracelet; specifics relating to the disability; description of emergency medical protocol and phone numbers for the parent or guardian or appropriate health care professional; the location of the nearest medical facilities along the bus route; any special instructions about pick-up and drop-off times or locations.

 

18.  Least restrictive alternative. 

 

Under Section 504 and IDEA, the LEA provides nonacademic and extracurricular services and activities so that children with disabilities have an equal opportunity for participation in those services and activities.  In providing or arranging for the nonacademic and extracurricular services and activities, including transportation, the LEA must make sure that the child with disabilities participates with children who do not have disabilities to the maximum extent appropriate to the needs of the child with disabilities.  Separate special transportation should occur only if a disability related need requires separate transportation.

 

19.  Minimum specifications for school buses. 

 

State laws and regulations specifically address the safety, construction and equipping of Kentucky school buses and school activity vehicles (702 KAR 5:010-150).  Standards are included in the following:

 

a.   Kentucky Administrative Regulations Chapter 5 Pupil Transportation;

b.      Kentucky Minimum Specifications for  School Buses (702 KAR 5:060, Section 2); and

c.       Kentucky Pupil Transportation Management Manual (702 KAR 5:030, Section 8).


Alterations or changes to a pupil-transporting vehicle that are needed, but are not covered by existing rules, require prior approval through the Kentucky Department of Education. Questions regarding transportation standards are answered by staff in Pupil Transportation Services, Kentucky Department of Education, 500 Mero Street, Frankfort Kentucky 40601 ((502) 564-4718).

 

20.  Misconduct.

 

Drivers report persistent misconduct or behavior problems on the bus as soon as possible to the principal of the school where the child attends or to the person designated by the board to handle bus discipline problems (702 KAR 5:050).  As soon as misconduct appears, steps should be taken to correct it, such as meeting with the parents to discuss the problem or training in conflict resolution or behavior management strategies for personnel, the child and other children.

 

If necessary, the ARC or 504 committee convenes to address instructional or related service needs in the IEP or 504 plan.  Transportation goals and objectives may be added to the IEP or 504 plan to enable the student to increase socialization or independence, or improve behavior on the bus.

 

In some cases, it may be necessary for a driver and the aide to be trained in specific behavior management techniques designed for a particular child with disabilities.

 

Suspension.  A short-term suspension from the bus, e.g., one or two days, may be used if: (1) the bus suspension (a) is not inconsistent with the child's IEP and (b) does not result in a change in placement; (2) the behavior has not been previously determined to be a manifestation of the child's disability; and (3) the suspension would be applied to a child without disabilities.  However, if the IEP specifies transportation as a related service, then the LEA provides an alternative method of transportation during a short-term bus suspension.

 

21.  Service animals. 

 

Service animals include any animal individually trained to do work or perform tasks for the benefit of an individual with a disability.  Tasks typically performed by service animals include guiding people with impaired vision, alerting individuals with impaired vision of intruders or sounds, providing minimal protection, pulling a wheelchair, or retrieving dropped items.  Additional training may be necessary for the service animal that helps a child with a disability during transportation.

 

22.  Shortened  school day. 

 

The child with a disability has a right to a school day the same length as that provided to children who do not have disabilities.  The child with disabilities arrives and departs at the same time as children without disabilities.  However, the ARC or 504 committee may change the length of the school day in the IEP or 504 plan for an individual child due to the child's unique and individual needs.  If a child needs a shortened school day for medical reasons, the local board of education must approve the request for the shortened day and then submit notice to the Kentucky Department of Education. 

 

The time children with disabilities spend on a bus should not exceed the amount of time children without disabilities spend on a bus.  In some cases, special transportation may be necessary to accommodate a child with disabilities who cannot ride the bus for the same length of time as children without disabilities.  For instance, a child who uses a respirator may need to spend a shorter amount of time on the bus than other children.

 

23.  Special equipment. 

 

Some children with disabilities may require specially adapted seating during transportation.  For instance, a child with severe scoliosis or poor muscle control may be at risk for injury if they are not held firmly in a proper position. Occupational and physical therapists have professional training in positioning children with physical disabilities.  In addition, they have skills and knowledge in designing and constructing custom devices and adapting commercial products. 

 

Devices designed or adapted by occupational or physical therapists need to meet federal transportation safety requirements.  Transportation personnel who are aware of the standards for satisfactory performance in dynamic crash testing and requirements for restraint systems should work in cooperation with the therapists to arrive at a solution that meets both the child's individual needs and the LEA's responsibility to adhere to safety standards.

 

Some commercially available mobility devices carry a manufacturer's stipulation that their products are not to be used for transport purposes.  If a child with a disability uses one of these products during the school day, another mobility device that can be safely transported while still meeting the positioning needs of the student should be used during the bus ride.

 

Alterations or changes to a pupil-transporting vehicle that are needed, but are not covered by existing rules, require prior approval through the Kentucky Department of Education. Questions regarding transportation standards are answered by staff in Pupil Transportation Services, Kentucky Department of Education, 500 Mero Street, Frankfort Kentucky 40601 (502) 564-4718).

 

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State Regulations

 

KENTUCKY ADMINISTRATIVE REGUALTIONS PUPIL

TRANSPORTATION:

 

702 KAR 5:010 Responsibilities of division

702 KAR 5:020 Program cost calculation

702 KAR 5:030 Superintendents’ responsibilities

702 KAR 5:040 District board's responsibilities

702 KAR 5:050 Supervision and discipline of pupils

702 KAR 5:060 Buses; specification and purchases

702 KAR 5:070 Liability insurance for buses

702 KAR 5:080 Bus drivers' qualifications; responsibilities

702 KAR 5:090 Pupil's responsibilities

702 KAR 5:100 Handicapped, reimbursement for

702 KAR 5:110 Vocational pupils, reimbursement for

702 KAR 5:120 Blind and deaf pupils, reimbursement for

702 KAR 5:130 Vehicles designed to carry nine (9) passengers or less; standards for

702 KAR 5:150 Transportation of preschool children

 

Web site: http://www.lrc.state.ky.us/kar/TITLE702.HTM

 

KENTUCKY ADMINISTRATIVE REGULATIONS FOR PROGRAMS FOR EXCEPTIONAL CHILDREN:

 

707 KAR 1:270 Kentucky Special Education Mentor Program

707 KAR 1:280 Definitions

707 KAR 1:290 Free appropriate public education

707 KAR 1:300 Child find, evaluation, and reevaluation

707 KAR 1:310 Determination of eligibility

707 KAR 1:320 Individual education program

707 KAR 1:330 Comprehensive system of personnel development

707 KAR 1:340 Procedural safeguards and state complaint procedures

707 KAR 1:350 Placement decisions

707 KAR 1:360 Confidentiality of information

707 KAR 1:370 Children with disabilities enrolled in private schools

707 KAR 1:380 Monitoring and recovery of funds

 

Web site: http://www.lrc.state.ky.us/kar/TITLE707.HTM

 

 

@!(  Notes 

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Transportation Services (502) 564-4718

Exceptional Children Services (502) 564-4970

 

 




 

APPENDIX A

Guide: Determining Need for Special Transportation

 

 

If the student is affected by any of the following, special transportation may be needed:

 

24.  Does the child have a technology dependent condition (e.g., tracheotomy tubes, respirator, oxygen, temperature controlled vehicle, etc.)?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

25.  Does the child have a particularly fragile condition such as osteogenous imperfecta (brittle bones), seizure disorder or apnea (cessation of breathing episodes)?    If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

26.  Does the child experience seizure activity?   If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

27.  Does the child have a low resistance to communicable diseases?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

28.  Does the child have a need for a special emergency protocol?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

29.  Does the child use a service animal?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

30.  Does the child use an augmentative communication system?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

31.  Does the child need a specially trained aide?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided. 

 

32.  Does the child have a behavior management plan that includes behavior that needs to be addressed during transportation?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

33.  Are there any time limitations for how long the student may be on the bus?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

34.  Does the student require specific assistive devices during transportation (e.g., for positioning, communication, etc.)?  If yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

35.  Other, if yes, describe the child's current status in the IEP or 504 plan and, if needed, the special services to be provided.

 

If the answer to any item is "yes", then the ARC or 504 committee considers the need for special transportation.  If the ARC or 504 committee decides that the child needs special transportation, the committee describes exactly what special transportation services the LEA will provide.  For a child who is IDEA eligible, the IEP specifies the beginning date and the anticipated ending date for the special transportation service.  The 504 plan may also specify this information.

The ARC or 504 committee may decide that special training is necessary for the driver and aides or assistants.  If special training is necessary for the transportation specified, then the IEP or 504 plan includes the titles or types of personnel to provide the training and the titles or types of personnel to be trained as well as when the training will take place.  Teachers and therapists (e.g., occupational, physical or speech/language therapists) who work with the child may provide the special training  (e.g., the design, adaptation, or use of any assistive technology devices; behavior management strategies) for bus drivers, aides, and driver assistants.

 

If a child needs special transportation, the committee also may need to consider and specify in the IEP or 504 plan:

 

36.    Specific plans for the way the child with special transportation needs will be handled during an emergency, e.g., emergency evacuation of the bus, a bus accident, medical emergency, etc.

 

37.    Substitutes or a back-up plan for absent drivers, aides and driver assistants.

 

38.    A complete transportation data file including but not limited to:

 

__ parent or guardian's name(s) and address(es)

__ phone number(s)

__ pick up and drop off locations and times

__ assistive devices used by the student

__ assistive devices required for transportation

__ name(s) of persons to contact regarding the operation of assistive devices

__ type of specific assistive services and devices

 

39.    If a child uses a service animal, training in the emergency procedure for the animal.

 

 

 

 

APPENDIX B

Glossary: Federal Requirements and Definitions of Terms

 

 

Selected portions of regulations concerning education under Section 504 of the Rehabilitation Act (34 CFR Part 104):

 

104.3 Definitions.

As used in this part, the term:

    (a) The Act means the Rehabilitation Act of 1973, Pub. L. 93‑112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93‑516, 29 U.S.C. 794.

    (b) Section 504 means section 504 of the Act.

    (c)

    (f) Recipient means any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.

    (g) Applicant for assistance means one who submits an application, request, or plan required to be approved by a Department official or by a recipient as a condition to becoming a recipient.

(h) Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the Department provides or otherwise makes available assistance in the form of:

    (1) Funds;

    (2) Services of Federal personnel; or

    (3) Real and personal property or any interest in or use of such property, including:

    (i) Transfers or leases of such property for less than fair market value or for reduced consideration; and

    (ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government.

    (i) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property.

    (j) Handicapped person -- (1) Handicapped persons means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

    (2) As used in paragraph (j)(1) of this section, the phrase:

    (i) Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito‑urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

    (ii) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

    (iii) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

    (iv) Is regarded as having an impairment means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.

    (k) Program or activity means all of the operations of--

    (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or

    (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

    (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or

    (ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;

    (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship--

    (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

    (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

    (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

    (4) Any other entity which is established by two or more of the entities described in paragraph (k)(1), (2), or (3) of this section; any part of which is extended Federal financial assistance.

(Authority:  29 U.S.C. 794(b))

    (l) Qualified handicapped person means:

    (1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question;

    (2) With respect to public preschool elementary, secondary, or adult educational services, a handicappped person (i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (iii) to whom a state is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and

    (3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity;

    (4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.

    (m) Handicap means any condition or characteristic that renders a person a handicapped person as defined in paragraph (j) of this section.

 

104.4 Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.

    (b) Discriminatory actions prohibited. (1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

    (i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;

    (ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

    (iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;

    (iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;

    (v) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipients program or activity;

    (vi) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or

    (vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

    (2) For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs.

    (3) Despite the existence of separate or different aid, benefits, or services provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in such aid, benefits, or services that are not separate or different.

    (4) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to handicapped persons, or (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.

    (5) In determining the site or location of a facility, an applicant for assistance or a recipient may not make selections (i) that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives Federal financial assistance or (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons.

    (6) As used in this section, the aid, benefit, or service provided under a program or activity receiving Federal financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented, or otherwise acquired, in whole or in part, with Federal financial assistance.

    (c) Aid, benefits or services limited by Federal law.  The exclusion of nonhandicapped persons from aid, benefits, or services limited by Federal statute or executive order to handicapped persons or the exclusion of a specific class of handicapped persons from aid, benefits, or services limited by Federal statute or executive order to a different class of handicapped persons is not prohibited by this part.

 

104.5 Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to which this part applies shall submit an assurance, on a form specified by the Assistant Secretary, that the program or activity will be operated in compliance with this part. An applicant may incorporate these assurances by reference in subsequent applications to the Department.

    (b) Duration of obligation. (1) In the case of Federal financial assistance extended in the form of real property or to provide real property or structures on the property, the assurance will obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for the purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits.

    (2) In the case of Federal financial assistance extended to provide personal property, the assurance will obligate the recipient for the period during which it retains ownership or possession of the property.

    (3) In all other cases the assurance will obligate the recipient for the period during which Federal financial assistance is extended.

    (c) Covenants. (1) Where Federal financial assistance is provided in the form of real property or interest in the property from the Department, the instrument effecting or recording this transfer shall contain a covenant running with the land to assure nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits.

    (2) Where no transfer of property is involved but property is purchased or improved with Federal financial assistance, the recipient shall agree to include the covenant described in paragraph (b)(2) of this section in the instrument effecting or recording any subsequent transfer of the property.

    (3) Where Federal financial assistance is provided in the form of real property or interest in the property from the Department, the covenant shall also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant. If a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on the property for the purposes for which the property was transferred, the Assistant Secretary may, upon request of the transferee and if necessary to accomplish such financing and upon such conditions as he or she deems appropriate, agree to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.

 

104.6 Remedial action, voluntary action, and self‑evaluation.

    (a) Remedial action. (1) If the Assistant Secretary finds that a recipient has discriminated against persons on the basis of handicap in violation of section 504 or this part, the recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of the discrimination.

    (2) Where a recipient is found to have discriminated against persons on the basis of handicap in violation of section 504 or this part and where another recipient exercises control over the recipient that has discriminated, the Assistant Secretary, where appropriate, may require either or both recipients to take remedial action.

    (3) The Assistant Secretary may, where necessary to overcome the effects of discrimination in violation of section 504 or this part, require a recipient to take remedial action (i) with respect to handicapped persons who are no longer participants in the recipient's program or activity but who were participants in the program or activity when such discrimination occurred or (ii) with respect to handicapped persons who would have been participants in the program or activity had the discrimination not occurred.

    (b) Voluntary action. A recipient may take steps, in addition to any action that is required by this part, to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity by qualified handicapped persons.

    (c) Self‑evaluation. (1) A recipient shall, within one year of the effective date of this part:

    (i) Evaluate, with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices and the effects thereof that do not or may not meet the requirements of this part;

    (ii) Modify, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, any policies and practices that do not meet the requirements of this part; and

    (iii) Take, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, appropriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to these policies and practices.

    (2) A recipient that employs fifteen or more persons shall, for at least three years following completion of the evaluation required under paragraph (c)(1) of this section, maintain on file, make available for public inspection, and provide to the Assistant Secretary upon request:

    (i) A list of the interested persons consulted,

    (ii) A description of areas examined and any problems identified, and

    (iii) A description of any modifications made and of any remedial steps taken.

 

104.7 Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. A recipient that employs fifteen or more persons shall designate at least one person to coordinate its efforts to comply with this part.

    (b) Adoption of grievance procedures. A recipient that employs fifteen or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part. Such procedures need not be established with respect to complaints from applicants for employment or from applicants for admission to postsecondary educational institutions.

 

104.8 Notice.

    (a) A recipient that employs fifteen or more persons shall take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees, including those with impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of handicap in violation of section 504 and this part. The notification shall state, where appropriate, that the recipient does not discriminate in admission or access to, or treatment or employment in, its program or activity. The notification shall also include an identification of the responsible employee designated pursuant to §104.7(a). A recipient shall make the initial notification required by this paragraph within 90 days of the effective date of this part. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, placement of notices in recipients' publication, and distribution of memoranda or other written communications.

    (b) If a recipient publishes or uses recruitment materials or publications containing general information that it makes available to participants, beneficiaries, applicants, or employees, it shall include in those materials or publications a statement of the policy described in paragraph (a) of this section. A recipient may meet the requirement of this paragraph either by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.

 

104.9 Administrative requirements for small recipients.

    The Assistant Secretary may require any recipient with fewer than fifteen employees, or any class of such recipients, to comply with §§ 104.7 and 104.8, in whole or in part, when the Assistant Secretary finds a violation of this part or finds that such compliance will not significantly impair the ability of the recipient or class of recipients to provide benefits or services.

 

Subpart C--Accessibility

 

104.21 Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity to which this part applies.

 

104.22 Existing facilities.

    (a) Accessibility. A recipient shall operate its program or activity so that when each part is viewed in its entirety, it is readily accessible to handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.

    (b) Methods. A recipient may comply with the requirements of paragraph (a) of this section through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirements of § 104.23, or any other methods that result in making its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that serve handicapped persons in the most integrated setting appropriate.

    (c) Small health, welfare, or other social service providers. If a recipient with fewer than fifteen employees that provides health, welfare, or other social services finds, after consultation with a handicapped person seeking its services, that there is no method of complying with paragraph (a) of this section other than making a significant alteration in its existing facilities, the recipient may, as an alternative, refer the handicapped person to other providers of those services that are accessible.

    (d) Time period. A recipient shall comply with the requirement of paragraph (a) of this section within sixty days of the effective date of this part except that where structural changes in facilities are necessary, such changes shall be made within three years of the effective date of this part, but in any event as expeditiously as possible.

    (e) Transition plan. In the event that structural changes to facilities are necessary to meet the requirement of paragraph (a) of this section, a recipient shall develop, within six months of the effective date of this part, a transition plan setting forth the steps necessary to complete such changes. The plan shall be developed with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons. A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum:

    (1) Identify physical obstacles in the recipient's facilities that limit the accessibility of its program or activity to handicappped persons;

    (2) Describe in detail the methods that will be used to make the facilities accessible;

    (3) Specify the schedule for taking the steps necessary to achieve full accessibility in order to comply with paragraph (a) of this section and, if the time period of the transition plan is longer than one year, identify the steps of that will be taken during each year of the transition period; and

    (4) Indicate the person responsible for implementation of the plan.

    (f) Notice. The recipient shall adopt and implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usuable by handicapped persons.

 

104.23 New construction.

    (a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by handicapped persons, if the construction was commenced after the effective date of this part.

    (b) Alteration. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient after the effective date of this part in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by handicapped persons.

    (c) Conformance with Uniform Federal Accessibility Standards. (1) Effective as of January 18, 1991, design, construction, or alteration of buildings in conformance with sections 3‑8 of the Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101‑19.6) shall be deemed to comply with the requirements of this section with respect to those buildings. Departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided.

    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with phusical handicaps.

    (3) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load‑bearing structural member.

[45 FR 30936, May 9, 1980; 45 FR 37426, June 3, 1980, as amended at 55 FR 52138, 52141, Dec. 19, 1990]

 

Subpart D -- Preschool, Elementary, and Secondary Education

 

104.31 Application of this subpart.

   Subpart D applies to preschool, elementary, secondary, and adult education programs or activities that receive Federal financial assistance and to recipients that operate, or that receive Federal financial assistance for the operation of, such programs or activities.

 

104.32 Location and notification.

    A recipient that operates a public elementary or secondary education program or activity shall annually:

   (a) Undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education; and

    (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient's duty under this subpart.

 

104.33 Free appropriate public education.

    (a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.

    (b) Appropriate education. (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.

    (2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.

    (3) A recipient may place a handicapped person or refer such a person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of this subpart. If so, the recipient remains responsible for ensuring that the requirements of this subpart are met with respect to any handicapped person so placed or referred.

    (c) Free education -- (1) General. For the purpose of this section, the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, of payment for the costs of the aid, benefits, or services.  Funds available from any public or private agency may be used to meet the requirements of this subpart. Nothing in this section shall be construed to relieve an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.

    (2) Transportation. If a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person or his or her parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient.

    (3) Residential placement. If a public or private residential placement is necessary to provide a free appropriate public education to a handicapped person because of his or her handicap, the placement, including non‑medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.

    (4) Placement of handicapped persons by parents. If a recipient has made available, in conformance with the requirements of this section and §104.34, a free appropriate public education to a handicapped person and the person's parents or guardian choose to place the person in a private school, the recipient is not required to pay for the person's education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or otherwise regarding the question of financial responsibility are subject to the due process procedures of §104.36.

    (d) Compliance. A recipient may not exclude any qualified handicapped person from a public elementary or secondary education after the effective date of this part. A recipient that is not, on the effective date of this regulation, in full compliance with the other requirements of the preceding paragraphs of this section shall meet such requirements at the earliest practicable time and in no event later than September 1, 1978.

 

104.34 Educational setting.

    (a) Academic setting. A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient places a person in a setting other than the regular educational environment pursuant to this paragraph, it shall take into account the proximity of the alternate setting to the person's home.

    (b) 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 § 104.37(a)(2), a recipient shall ensure that handicapped persons participate with nonhandicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question.

    (c) Comparable facilities. If a recipient, in compliance with paragraph (a) of this section, operates a facility that is identifiable as being for handicapped persons, the recipient shall ensure that the facility and the services and activities provided therein are comparable to the other facilities, services, and activities of the recipient.

 

104.35 Evaluation and placement.

    (a) Preplacement evaluation. A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is belived to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.

    (b) Evaluation procedures. A recipient to which this subpart applies shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:

    (1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;

    (2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and

    (3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

    (c) Placement procedures. In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with §104.34.

    (d) Reevaluation. A recipient to which this section applies shall establish procedures, in accordance with paragraph (b) of this section, for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.

 

104.36 Procedural safeguards.

    A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.

 

104.37 Nonacademic services.

    (a) General. (1) A recipient to which this subpart applies shall provide non‑academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.

    (2) Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment.

    (b) Counseling services. A recipient to which this subpart applies that provides personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services without discrimination on the basis of handicap. The recipient shall ensure that qualified handicapped students are not counseled toward more restrictive career objectives than are nonhandicapped students with similar interests and abilities.

    (c) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation.

    (2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different from those offered to nonhandicapped students only if separation or differentiation is consistent with the requirements of §104.34 and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.

 

104.38 Preschool and adult education.

    A recipient to which this subpart applies that provides preschool education or day care or adult education may not, on the basis of handicap, exclude qualified handicapped persons and shall take into account the needs of such persons in determining the aid, benefits, or services to be provided.

 

104.39 Private education.

    (a) A recipient that provides private elementary or secondary education may not, on the basis of handicap, exclude a qualified handicapped person if the person can, with minor adjustments, be provided an appropriate education, as defined in §104.33(b)(1), within that recipient’s program or activity.

    (b) A recipient to which this section applies may not charge more for the provision of an appropriate education to handicapped persons than to nonhandicapped persons except to the extent that any additional charge is justified by a substantial increase in cost to the recipient.

    (c) A recipient to which this section applies that provides special education shall do so in accordance with the provisions of §§ 104.35 and 104.36.  Each recipient to which this section applies is subject to the provisions of §§ 104.34, 104.37, and 104.38.

 

Selected portions of the Individuals with Disabilities Education Act (IDEA) Part B regulations (34 C.F.R. Part 300):

 

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.

(Authority: 20 U.S.C. 1401(1))

 

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.

(Authority: 20 U.S.C. 1401(2))

 

300.7 Child with a disability.

    (a) General.

    (1) As used in this part, the term child with a disability means a child evaluated in accordance with §§300.530-300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.

    (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§300.530-300.536, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part.

    (ii) If, consistent with §300.26(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.

    (b) Children aged 3 through 9 experiencing developmental delays. The term child with a disability for children aged 3 through 9 may, at the discretion of the State and LEA and in accordance with §300.313, include a child—

    (1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and

    (2) Who, by reason thereof, needs special education and related services.

    (c) Definitions of disability terms. The terms used in this definition are defined as follows:

    (1)

    (i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (b)(4) of this section.

    (ii) A child who manifests the characteristics of "autism" after age 3 could be diagnosed as having "autism" if the criteria in paragraph (c)(1)(i) of this section are satisfied.

    (2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

    (3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance.

    (4) Emotional disturbance is defined as follows:

    (i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

    (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

    (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

    (C) Inappropriate types of behavior or feelings under normal circumstances.

    (D) A general pervasive mood of unhappiness or depression.

    (E) A tendency to develop physical symptoms or fears associated with personal or school problems.

    (ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.

    (5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section.

    (6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance.

    (7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.

    (8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

    (9) Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—

    (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and

    (ii) Adversely affects a child's educational performance.

    (10) Specific learning disability is defined as follows:

    (i) General. The term means a disorder in one 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, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

    (ii) Disorders not included. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

    (11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance.

    (12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.

    (13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness.

(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))

 

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 Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1401(8))


300.23  Qualified personnel.

    As used in this part, the term qualified personnel means personnel who have met SEA-approved or SEA-recognized certification, licensing, registration, or other comparable requirements that apply to the area in which the individuals are providing special education or related services. 

(Authority: 20 U.S.C. 1221e-3)


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 adisability 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 (lip-reading), 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—

    (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;

    (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.

(Authority: 20 U.S.C. 1401(22))


300.25  Secondary school.

    As used in this part, the term secondary school means a nonprofit institutional day or residential school that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12.

(Authority: 20 U.S.C. 1401(23))


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.

(Authority: 20 U.S.C. 1401(25))


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 Secs. 300.550-300.556.

(Authority: 20 U.S.C. 1401(29))


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.

(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))


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.

(Authority: 20 U.S.C. 1412(a)(1))


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 Secs. 300.341-300.350. 

    (b) Participating agency. As used in Sec. 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.

(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))


Sec. 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 Sec. 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 Secs. 300.341-300.346 and Secs. 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

    (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 Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec. 201(a)(2)(A), (C)


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 Sec. 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—

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 Sec. 300.347(a), and in the general curriculum, if appropriate;

    (ii) The results of any reevaluation conducted under Sec. 300.536;

    (iii) Information about the child provided to, or by, the parents, as described in Sec. 300.533(a)(1);

    (iv) The child's anticipated needs; or

    (v) Other matters.

(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A))


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 Sec. 300.347(b)(1);

    (ii) The needed transition services for the student under Sec. 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 Sec. 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.

    (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.

(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))


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 Sec. 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 Sec. 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 Sec. 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.

(Authority: 20 U.S.C. 1414(d)(1)(B)(i))

 

Sec. 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 to 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, 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 Sec. 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.

(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))


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 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

    (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 Sec. 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 Sec. 300.311(b) and (c).

(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))


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.

(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July 21, 1975))


300.550  General LRE requirements.

    (a) Except as provided in Sec. 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 Secs. 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

    (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.

(Authority: 20 U.S.C. 1412(a)(5))


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 Sec. 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.

(Authority: 20 U.S.C. 1412(a)(5))

 

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 Sec. 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.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))


34 CFR Part 300 APPENDIX A Notice of Interpretation

 

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 (Sec. 300.347(b)(1)(i)),'' and a statement of needed transition services'' no later than age 16 (Sec. 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)'' (Sec. 300.347(b)(1)(i)).

    Beginning at age 16 (or younger, if determined appropriate by the IEP team), each student's IEP must include:

``* * * a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.'' (Sec. 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 Sec. 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 Sec. 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 Sec. 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 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.

    Thus, while Sec. 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 Sec. 300.347(b)(2) that includes a ``coordinated set of activities * * *, designed within an outcome-oriented process, that promotes movement from school to post-school activities * * *.'' (Sec. 300.29) Section 300.344(b)(3) further requires that, in implementing Sec. 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, Sec. 300.347(b)(2) requires a broader focus on coordination of services across, and linkages between, agencies beyond the SEA and LEA.


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 Sec. 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 Sec. 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.

    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 Sec. 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.


 

 


 

 

 

 

 

 

[email protected](  Notes 

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Transportation Services (502) 564-4718

Exceptional Children Services (502) 564-4970

 

 


 

 

APPENDIX C

Resources

 

 

Internet Web sites:

 

A collection of Internet accessible information resources of interest to those involved in the fields related to Special Education.

http://seriweb.com/

http://www.ideapractices.org/index.php

 

Individuals with Disabilities Education Act (IDEA) regulations:

http://www.ed.gov/offices/OSERS/OSEP/Policy/

http://www.ideapractices.org/idearegsmain.htm

 

OCR documents are posted on the Internet based on availability.

http://www.ed.gov/offices/OCR/publications.html#Section504

http://www.ed.gov/offices/OCR/topics.html

 

The U.S. Department of Justice provides free ADA materials.

http://www.usdoj.gov/crt/ada/publicat.htm

 

The Family Village integrates information, resources, and communication opportunities on the Internet for persons with cognitive and other disabilities, for their families, and for those that provide them services and support.

http://www.familyvillage.wisc.edu/map/A.HTML

http://www.familyvillage.wisc.edu/general/servdogs.htm

 

Associations, chat room, suppliers, federal register, etc.:

http://www.childrenwithdisabilities.ncjrs.org/index.html

http://www.schoolbusfleet.com/home.cfm

 

Publications:

Special Education Transportation Committee

National Association Pupil Transportation (NAPT)

1840 Western Avenue

Albany, New York 12203-0647

http://www.napt.org/

 

American Academy of Pediatrics

141 Northwest Point Boulevard

Post Office Box 927

Elk Grove Village, IL  60009-0927

http://www.aap.org

 

Transportation Briefing Papers

Publisher: James Rosenfield

EDLAW, INC

PO Box 59105

Potomac, Maryland 20959-9105

 

Safe Ride News

American Academy of Pediatrics

PO Box 927

Elk Grove, IL 60009-0927

 

Transportation Services (502) 564-4718

 

Exceptional Children Services (502) 564-4970

 

 

Printed with state and federal funds by the Kentucky Department of Education (KDE).  The KDE does not discriminate on the basis of race, color, national origin, sex, religion, age or disability in employment or the provision of services and provides upon request, reasonable accommodation including auxiliary aids and services necessary to afford individuals with disabilities an equal opportunity to participate in all programs and activities.  Contact the ADA Coordinator at the KENTUCKY DEPARTMENT OF EDUCATION, 500 MERO STREET, FRANKFORT, KY.  40601

 

 

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المهارات الناعمة ومخرجات التعلم


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المهارات الناعمة

المهارات الناعمة مفهوم يربط بين التكوين والتعليم وبين حاجات سوق العمل، تعتبر مجالاً واسعاً وحديثا يتسم بالشمولية ويرتبط بالجوانب النفسية والاجتماعية عند الطالب الذي يمثل مخرجات تعلم أي مؤسسة تعليمية، لذلك؛ فإن هذه المهارات تضاف له باستمرار – وفق متغيرات سوق العمل وحاجة المجتمع – وهي مهارات جديدة مثل مهارات إدارة الأزمات ومهارة حل المشاكل وغيرها. كما أنها تمثلالقدرات التي يمتلكها الفرد وتساهم في تطوير ونجاح المؤسسة التي ينتمي إليها. وترتبط هذه المهارات بالتعامل الفعّال وتكوين العلاقات مع الآخرينومن أهم المهارات الناعمة:

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تطبيق يقوم تلقائيًا باكتشاف الأخطاء النحوية والإملائية وعلامات الترقيم واختيار الكلمات وأخطاء الأسلوب في الكتابة

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تصنيف بلوم لقياس مخرجات التعلم

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التعلم القائم على النواتج (المخرجات)

التعلم القائم على المخرجات يركز على تعلم الطالب خلال استخدام عبارات نواتج التعلم التي تصف ما هو متوقع من المتعلم معرفته، وفهمه، والقدرة على أدائه بعد الانتهاء من موقف تعليمي، وتقديم أنشطة التعلم التي تساعد الطالب على اكتساب تلك النواتج، وتقويم مدى اكتساب الطالب لتلك النواتج من خلال استخدام محكات تقويم محدودة.

ما هي مخرجات التعلم؟

عبارات تبرز ما سيعرفه الطالب أو يكون قادراً على أدائه نتيجة للتعليم أو التعلم أو كليهما معاً في نهاية فترة زمنية محددة (مقرر – برنامج – مهمة معينة – ورشة عمل – تدريب ميداني) وأحياناً تسمى أهداف التعلم)

خصائص مخرجات التعلم

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