1. (a) Except as provided in 34 C.F.R. § 300.102, the obligation to make FAPE available to all children with disabilities does not apply with respect to students aged eighteen (18) to twenty-one (21) years to the extent that state law does not require that special education and related services under Part B of the Individuals with Disabilities Education Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility:

   1. (1) Were not actually identified as being a child with a disability under 34 C.F.R. § 300.8; and
   2. (2) Did not have an IEP under Part B of the Individuals with Disabilities Education Act.

2. (b) The exception in subsection (a) of this section does not apply to the children with disabilities, aged eighteen (18) through twenty-one (21), who:

   1. (1) Had been identified as a child with a disability under 34 C.F.R. § 300.8 and had received services in accordance with an IEP, but who left school prior to their incarceration; or
   2. (2) Did not have an IEP in their last education setting, but who had actually been identified as a child with a disability under 34 C.F.R. § 300.8.

3. (c) Requirements that do not apply. The following requirements do not apply to children with disabilities who are convicted as adults under Arkansas state law and are incarcerated in adult prisons:

   1. (1) The requirements relating to participation of children with disabilities in general assessments found in Section 612(a)(16) of the Individuals with Disabilities Education Act and 34 C.F.R. § 300.320(a)(6); and
   2. (2) The requirements in 34 C.F.R. § 300.320(b) relating to transition planning and transition services, with respect to the children whose eligibility under Part B of Individuals with Disabilities Education Act will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.

4. (d) Modifications of IEP or placement.

   1. (1) Subject to subdivision (d)(2) of this section, the IEP team of a child with a disability who is convicted as an adult under Arkansas state law and incarcerated in an adult prison may modify the child's IEP or placement if the state has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.
   2. (2) The requirements of 34 C.F.R. §§ 300.320 and 300.112, and 6 CAR § 130-802(a) and 6 CAR § 130-808(a) relating to IEPs, and 34 C.F.R. § 300.114 and 6 CAR § 130-1301 relating to LRE, do not apply with respect to the modifications described in subdivision (d)(1) of this section.

Codification Notes: The Individuals with Disabilities Education Act is codified at 20 U.S.C. § 1400 et seq. "LRE" means least restrictive environment.