32 C.F.R. § 57.6
(a) Procedures for the Provision of EIS for Infants and Toddlers with Disabilities—(1) General.
(i) There is an urgent and substantial need to:
(2) Identification and screening.
(ii) The military treatment facility (MTF) and Family Advocacy Program must be informed that EDIS will accept direct referrals for infants and toddlers from birth up to 3 years of age who are:
(v) All infants and toddlers referred to the EDIS for EIS shall be screened to determine the appropriateness of the referral and to guide the assessment process.
(3) Assessment and evaluation—(i) Assessments and evaluations. The assessment and evaluation of each infant and toddler must:
(B) Include:
(1) A review of records related to the infant's or toddler's current health status and medical history.
(2) An assessment of the infant's or toddler's needs for EIS based on personal observation of the child by qualified personnel.
(3) An evaluation of the infant's or toddler's level of functioning in each of the following developmental areas, including a multidisciplinary assessment of the unique strengths and needs of the child and the identification of services appropriate to meet those needs.
(i) Cognitive development.
(ii) Physical development, including functional vision and hearing.
(iii) Communication development.
(iv) Social or emotional development.
(v) Adaptive development.
(4) Informed clinical opinion of qualified personnel if the infant or toddler does not qualify based on standardized testing and there is probable need for services.
(ii) Family assessments.
(B) If EDIS conducts an assessment of the family, the assessment must:
(1) Be voluntary on the part of the family.
(2) Be conducted by personnel trained to utilize appropriate methods and procedures.
(3) Be based on information provided by the family through a personal interview.
(4) Incorporate the family's description of its resources, priorities, and concerns related to enhancing the infant's or toddler's development and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of the infant or toddler.
(iii) Standards for Assessment Selection and Procedures. EDIS shall ensure, at a minimum, that:
(4) Eligibility.
(ii) Infants and toddlers from birth up to 3 years of age with disabilities are eligible for EIS if they meet one of the following criteria:
(5) Timelines.
(ii) The Military Department responsible for providing EIS shall develop procedures requiring that, if circumstances make it impossible to complete the evaluation and assessment within a timely manner (e.g., if an infant or toddler is ill), EDIS shall:
(6) IFSP.
(iii) The IFSP team meeting to develop and review the IFSP must include:
(iv) If a participant listed in paragraph (a)(6)(iii) of this section is unable to attend a meeting, arrangements must be made for the person's involvement through other means, which may include:
(v) The IFSP shall contain:
(G) The name of the service coordinator who shall be responsible for the implementation of the IFSP and for coordination with other agencies and persons. In meeting these requirements, EDIS may:
(1) Assign the same service coordinator appointed at the infant or toddler's initial referral for evaluation to implement the IFSP;
(2) Appoint a new service coordinator; or
(3) Appoint a service coordinator requested by the parents.
(ix) EDIS shall evaluate the IFSP at least once a year and the family shall be provided an opportunity to review the plan at 6-month intervals (or more frequently, based on the needs of the child and family). The purpose of the periodic review is to determine:
(7) Transition from early intervention services.
(i) EDIS shall provide a written transition plan for toddlers receiving EIS to facilitate their transition to preschool or other setting, if appropriate. A transition plan must be recorded on the IFSP between the toddler's second and third birthday and not later than 90 days before the toddler's third birthday and shall include the following steps to be taken:
(vi) Based on the information received from EDIS, the CSC, coordinating with EDIS, will determine at the pre-transition meeting whether:
(vii) In the event that the toddler is first referred to EDIS fewer than 90 days before the toddler's third birthday, EDIS and the DoDEA school shall work cooperatively in the evaluation process and shall develop a joint assessment plan to determine whether the toddler is eligible for EIS or special education.
(ix) Upon completion of the evaluations, the CSC shall schedule an eligibility determination meeting at the local school, no later than 90 days prior to the toddler's third birthday.
(xii) The full transition of a toddler shall occur on the toddler's third birthday unless the IFSP team and the CSC determine that an extended transition is in the best interest of the toddler and family.
(A) An extended transition may occur when:
(1) The toddler's third birthday falls within the last 6 weeks of the school year;
(2) The family is scheduled to have a permanent change of station (PCS) within 6 weeks after a toddler's third birthday; or
(3) The toddler's third birthday occurs after the end of the school year and before October 1.
(B) An extended transition may occur if the IFSP team and the CSC determine that extended EIS beyond the toddler's third birthday are necessary and appropriate, and if so, how long extended services will be provided.
(1) The IFSP team, including the parents, may decide to continue services in accordance with the IFSP until the end of the school year, PCS date, or until the beginning of the next school year.
(2) Extended services must be delivered in accordance with the toddler's IFSP, which shall be updated if the toddler's or family's needs change on or before the toddler's third birthday.
(3) The CSC shall maintain in its records meeting minutes that reflect the decision for EDIS to provide an extended transition for the specified period.
(4) Prior to the end of the extended transition period, the CSC shall meet to develop an IEP that shall identify all special education and related services that will begin at the end of the transition period and meet all requirements of the IDEA and this part, in accordance with paragraph (b) of this section.
(C) The IFSP team and the CSC may jointly determine that the toddler should receive services in the special education preschool prior to the toddler's third birthday.
(1) If only a portion of the child's services will be provided by the DoDEA school, the information shall be identified in the IFSP, which shall also specify responsibilities for service coordination and transition planning. The CSC shall develop an IEP that shall identify all services to be delivered at the school, in accordance with paragraph (b) of this section.
(2) If all the toddler's services will be provided by the DoDEA school, the services will be delivered pursuant to an IEP developed in accordance with paragraph (b) of this section. Transition activities and other services under the IFSP will terminate with the toddler's entry into the special education preschool.
(3) Early entry into preschool services should occur only in exceptional circumstances (e.g., to facilitate natural transitions).
(8) Maintenance of records.
(9) Procedural safeguards.
(i) Parents of an infant or toddler who is eligible for EIS shall be afforded specific procedural safeguards that must include:
(D) The right to written parental consent.
(1) Consent must be obtained before evaluation of the infant or toddler in accordance with this section.
(2) Consent must be obtained before initiation of EIS in accordance with this section.
(3) If consent is not given, EDIS shall make reasonable efforts to ensure that the parent:
(i) Is fully aware of the nature of the evaluation and assessment or the services that would be available.
(ii) Understands that the infant or toddler will not be able to receive the evaluation and assessment or services unless consent is given.
(E) The right to prior written notice.
(1) Prior written notice must be given to the parents of an infant or toddler entitled to EIS a reasonable time before EDIS proposes to initiate or change, or refuses to initiate or change the identification, evaluation, or placement of the infant or toddler, or the provision of appropriate EIS to the infant or toddler and any family member.
(2) The notice must be in sufficient detail to inform the parents about:
(i) The action that is being proposed or refused.
(ii) The reasons for taking the action.
(iii) Each of the procedural safeguards that are available in accordance with this section, including availability of mediation, administrative complaint procedures, and due process complaint procedures that are available for dispute resolution as described in paragraph (d) of this section, including descriptions of how to file a complaint and the applicable timelines.
(3) The notice must be provided in language written for a general lay audience and in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
(b) Procedures for the provision of educational programs and services for children with disabilities, ages 3 through 21 years, inclusive—(1) Parent involvement and general provisions.
(2) Identification and referral.
(i) DoDEA shall:
(C) Conduct the following activities to determine if children may need special education and related services:
(1) Review school records for information about student performance on system-wide testing and other basic skills tests in the areas of reading and language arts and mathematics.
(2) Review school health data such as reports of hearing, vision, speech, or language tests and reports from healthcare personnel about the health status of a child. For children with disabilities, any health records or other information that tends to identify a child as a person with a disability must be maintained in confidential files that are not co-mingled with other records and that are available only to essential staff for the purpose of providing effective education and services to the child.
(3) Review school discipline records and maintain the confidentiality of such records and any information that tends to identify a child as a person with a disability.
(4) Participate in transition activities of children receiving EIS who may require special education preschool services.
(3) Incoming students. The DoDEA school will take the following actions, in consultation with the parent, when a child transfers to a DoDEA school with an active IEP:
(i) If the current IEP is from a non-DoDEA school:
(B) Provide FAPE, including services comparable (i.e., similar or equivalent) to those described in the incoming IEP, which could include extended school year services, in consultation with the parents, until the CSC:
(1) Conducts an evaluation, if determined necessary by such agency.
(2) Develops, adopts, and implements a new IEP, if appropriate, in accordance with the requirements of the IDEA and this part within 30 school days of receipt of the IEP.
(ii) If the current IEP is from a DoDEA school, the new school must provide the child a FAPE, including services comparable to those described in the incoming IEP, until the new school either:
(4) Referral by a parent. A parent may submit a request for an evaluation if they suspect their child has a disability. The CSC shall ensure any such request is placed in writing and signed by the requesting parent and shall, within 15 school days, review the request and any information provided by the parents regarding their concerns, confer with the child's teachers, and gather information related to the educational concerns. Following a review of the information, the CSC shall:
(i) Convene a conference among the parents, teachers, and one or more other members of the CSC to discuss the educational concerns and document their agreements. Following the discussion, the parents may agree that:
(5) Referral by a teacher.
(6) Assessment and evaluation.
(i) A full and comprehensive evaluation of educational needs shall be conducted prior to eligibility determination and before an IEP is developed or placement is made in a special education program, subject to the provisions for incoming students transferring to a DoDEA school as set forth in paragraph (b)(3) of this section. When the school determines that a child should be evaluated for a suspected disability, the school will:
(ii) The CSC shall ensure that the following elements are included in a full and comprehensive assessment and evaluation of a child:
(D) A plan to assess the type and extent of the disability. A child shall be assessed in all areas related to the suspected disability. The assessment plan shall include, as appropriate:
(1) An assessment of the nature and level of communication and the level of functioning academically, intellectually, emotionally, socially, and in the family.
(2) An assessment of physical status including perceptual and motor abilities.
(3) An assessment of the need for transition services for students 16 years and older.
(viii) All DoD elements including the CSC and related services providers shall:
(A) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, which may assist in determining:
(1) Whether the child has a disability.
(2) The content of the child's IEP, including information related to enabling the child to be involved and progress in the general education curriculum or, for preschool children, to participate in appropriate activities.
(ix) The CSC and DoD related services providers shall ensure that assessment materials and evaluation procedures are:
(x) As part of an initial evaluation and as part of any reevaluation, the CSC shall review existing evaluation data on the child, including:
(xi) On the basis of that review and input from the child's parents, identify what additional data, if any, are needed to determine:
(7) Eligibility.
(i) The CSC shall:
(F) Determine that a child does NOT have a disability if the determinant factor is:
(1) Lack of appropriate instruction in essential components of reading;
(2) Lack of instruction in mathematics; or
(3) Limited English proficiency.
(ii) The CSC shall reevaluate the eligibility of a child with a disability every 3 years, or more frequently, if the child's educational or related services needs, including improved academic achievement and functional performance, warrant a reevaluation. School officials shall not reevaluate more often than once a year, unless the parents and the school officials agree otherwise.
(B) If the CSC determines that no additional data are needed to determine whether the child continues to be a child with a disability, the CSC shall, in accordance with paragraph (b)(19) of this section, provide prior written notice to the child's parents of:
(1) The determination that no additional assessment data are needed and the reasons for their determination.
(2) The right of the parents to request an assessment to determine whether the child continues to have a disability and to determine the child's educational needs.
(v) When a child's eligibility has terminated due to graduation or exceeding the age of eligibility, the DoDEA school must provide the child, or the parent if the child has not yet reached the age of majority or is otherwise incapable of providing informed consent, with a summary of the child's academic achievement and functional performance.
(B) The summary must include:
(1) Child's demographics.
(2) Child's postsecondary goal.
(3) Summary of performance in the areas of academic, cognitive, and functional levels of performance to include the child's present level of performance, and the accommodations, modifications, and assistive technology that were essential in high school to assist the student in achieving maximum progress.
(4) Recommendations on how to assist the child in meeting the child's post-secondary goals.
(8) IEP—(i) IEP development.
(B) In developing the child's IEP, the CSC shall consider:
(1) The strengths of the child.
(2) The concerns of the parents for enhancing the education of their child.
(3) The results of the initial evaluation or most recent evaluation of the child.
(4) The academic, developmental, and functional needs of the child.
(ii) IEP development meeting. The CSC shall convene a meeting to develop the IEP of a child with a disability. The meeting shall:
(B) Include as participants:
(1) An administrator or school representative other than the child's teacher who is qualified to provide or supervise the provision of special education and is knowledgeable about the general education curriculum and available resources.
(2) Not less than one general education teacher of the child (if the child is, or may be, participating in the general education environment).
(3) Not less than one special education teacher or, where appropriate, not less than one special education provider of such child.
(4) The child's parents.
(5) An EIS coordinator or other representative of EIS, if the child is transitioning from EIS.
(6) The child, if appropriate.
(7) A representative of the evaluation team who is knowledgeable about the evaluation procedures used and can interpret the instructional implications of the results of the evaluation.
(8) Other individuals invited at the discretion of the parents or school who have knowledge or special expertise regarding the child or the IDEA, including related services personnel, as appropriate.
(iii) IEP content. The CSC shall include in the IEP:
(A) A statement of the child's present levels of academic achievement and functional performance including:
(1) How the child's disability affects involvement and progress in the general education curriculum, or
(2) For preschoolers, how the disability affects participation in appropriate activities.
(3) For children with disabilities who take an alternate assessment, a description of short-term objectives.
(B) A statement of measurable annual goals including academic and functional goals designed to meet:
(1) The child's needs that result from the disability to enable the child to be involved in and make progress in the general education curriculum.
(2) Each of the child's other educational needs resulting from his or her disability.
(D) A statement of the special education and related services, supplementary aids and services (which are based on peer-reviewed research to the extent practicable and shall be provided to the child or on behalf of the child), and a statement of the program modifications or supports for school personnel that shall be provided for the child to:
(1) Advance appropriately toward attaining the annual goals.
(2) Be involved in and make progress in the general education curriculum and participate in extracurricular and other non-academic activities.
(3) Be educated and participate with other children who may or may not have disabilities.
(F) A statement of any individualized appropriate accommodations necessary to measure the child's academic achievement and functional performance on system-wide or district-wide assessments. If the CSC determines that the child shall take an alternate assessment of a particular system-wide or district-wide assessment of student achievement (or part of an assessment), a statement of why:
(1) The child cannot participate in the regular assessment.
(2) The particular alternate assessment selected is appropriate for the child.
(G) Consideration of the following special factors:
(1) Assistive technology devices and services for all children.
(2) Language needs for the child with limited English proficiency.
(3) Instruction in Braille and the use of Braille for a child who is blind or visually impaired, unless the CSC 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.
(4) Interventions, strategies, and supports including positive behavioral interventions and supports to address behavior for a child whose behavior impedes his or her learning or that of others.
(5) Language and communication needs, and in the case of a child who is deaf or hard of hearing, 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 communication mode.
(iv) Transition services.
(A) Beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the CSC, and updated annually, thereafter, the IEP must include:
(1) Appropriate measurable postsecondary goals based on age-appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills.
(2) The transition services, including courses of study, needed to assist the child in reaching postsecondary goals.
(9) Implementation of the IEP.
(ii) The CSC shall:
(E) Ensure that the child's IEP is accessible to each general education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation, and that each teacher and provider is informed of:
(1) His or her specific responsibilities related to implementing the child's IEP.
(2) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
(G) Revise the IEP, as appropriate, and address:
(1) Any lack of progress toward the annual goals and in the general education curriculum, where appropriate.
(2) The results of any reevaluation.
(3) Information about the child provided by the parents, teachers, or related service providers.
(4) The child's needs.
(10) Placement and Least Restrictive Environment (LRE).
(ii) The educational placement decision for a child with a disability shall be:
(C) Made in conformity with the requirements of IDEA and this part for LRE.
(1) A child with a disability shall be educated, to the maximum extent appropriate, with children who are not disabled.
(2) A child with a disability shall not be removed from education in age-appropriate general education classrooms solely because of needed modifications in the general education classroom.
(3) As appropriate, the CSC shall make provisions for supplementary services to be provided in conjunction with general education placement.
(4) Special classes, separate schooling, or other removal of a child with a disability from the general education environment shall occur only when the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.
(5) In providing or arranging for the provision of non-academic and extracurricular services and activities, including meals, recess periods, assemblies, and study trips, the CSC shall ensure that a child with a disability participates with non-disabled children in those services and activities to the maximum extent appropriate to the needs of that child.
(iv) In determining the LRE for an individual student, the CSC shall:
(11) Extended School Year (ESY) services. ESY services must be provided only if a child's IEP team determines that the services are necessary for the provision of FAPE to the child. DoDEA may not:
(12) Discipline—(i) School discipline. All regular disciplinary rules and procedures applicable to children attending a DoDEA school shall apply to children with disabilities who violate school rules and regulations or disrupt regular classroom activities, except that:
(ii) Change of placement.
(C) If a child has been removed from his or her current placement for more than 10 days in a school year, but not more than 10 consecutive school days, the CSC shall determine whether the child has been subject to a series of removals that constitute a pattern. The determination is made on a case-by-case basis and is subject to review by a hearing officer in accordance with the provisions of paragraph (d)(5) of this section. The CSC will base its determination on whether the child has been subjected to a series of removals that constitute a pattern by examining whether:
(1) The child's behavior is substantially similar to his or her behavior in previous incidents that resulted in the series of removals, and;
(2) Additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
(iii) Alternate educational setting determination, period of removal. School personnel may remove a child with a disability for misconduct from his or her current placement:
(B) To an AES determined by the CSC for not more than 45 school days, without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child, at school, on school-provided transportation, on school premises, or at a school-sponsored event:
(1) Carries a weapon or possesses a weapon;
(2) Knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance; or
(3) Has inflicted serious bodily injury upon another person; or
(iv) Required services during removal.
(B) If a child with a disability is removed from his or her placement for more than 10 school days, where the behavior that gave rise to the violation of the school code is determined in accordance with paragraph (b)(12)(v) of this section not to be a manifestation of the child's disability, or who is removed under paragraph (b)(12)(iii)(B) of this section irrespective of whether the behavior is determined to be a manifestation of the child's disability, the school must:
(1) Continue to provide the child with the educational services as identified by the child's IEP as a FAPE so as to enable the child to continue participating in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.
(2) Provide, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications designed to address the behavior violation so that it does not recur.
(C) If a child with a disability has been removed for more than 10 cumulative school days and the current removal is for 10 consecutive school days or less, then the CSC must determine whether the pattern of removals constitutes a change of placement in accordance with paragraph (b)(12)(ii) of this section.
(1) If the CSC determines the pattern of removals is NOT a change of placement, then the CSC must determine the extent to which services are needed to enable the child to continue participating in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.
(2) If the CSC determines that the pattern of removals IS a change of placement, then the CSC must conduct a manifestation determination.
(v) Manifestation determination and subsequent action by CSC and school personnel.
(A) A principal must give the notice required and convene a manifestation determination meeting with the CSC within 10 school days of recommending, in accordance with DoDEA Regulation 2051.1, a disciplinary action that would remove a child with disabilities for:
(1) More than 10 consecutive school days, or
(2) A period in excess of 10 cumulative school days when the child has been subjected to a series of removals that constitute a pattern.
(B) The manifestation CSC will review all relevant information in the child's file (including the IEP, any teacher observations, and any information provided by the sponsor or parent) and determine whether the misconduct was a manifestation of the child's disability.
(1) The misconduct must be determined to be a manifestation of the child's disability if it is determined the misconduct:
(i) Was caused by the child's disability or had a direct and substantial relationship to the child's disability; or
(ii) Was the direct result of the school's failure to implement the IEP.
(2) If the determination is made that the misconduct was a manifestation of the child's disability, the CSC must:
(i) Conduct a functional behavioral assessment, unless the school conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
(ii) Review any existing behavioral intervention or disciplinary plan and modify it, as necessary, to address the behavior; and
(iii) Revise the student's IEP or placement and delivery system to address the school's failure to implement the IEP and to ensure that the student receives services in accordance with the IEP.
(3) Unless the parent and school agree to a change of placement as part of the modification of the behavioral intervention plan, the CSC must return the child to the placement from which the child was removed:
(i) Not later than the end of 10 days of removal; or
(ii) Not later than the end of 45 consecutive school days, if the student committed a weapon or drug offense or caused serious bodily injury for which the student was removed to an AES.
(4) If the determination is made that the misconduct in question was the direct result of the school's failure to implement the IEP, the school must take immediate steps to remedy those deficiencies.
(5) If the determination is made that the behavior is NOT a manifestation of the child's disability, school personnel may apply the relevant disciplinary procedures in the same manner and for the same duration as the procedures that would be applied to children without disabilities, and must:
(i) Forward the case and a recommended course of action to the school principal, who may then refer the case to a disciplinary committee for processing.
(ii) Reconvene the CSC following a disciplinary decision that would change the student's placement, to identify, if appropriate, an educational setting and delivery system to ensure the child receives services in accordance with the IEP.
(vi) Appeals of school decision regarding placement or manifestation determination.
(B) A hearing officer, appointed in accordance with paragraph (d) of this section, hears and makes a determination regarding an appeal. In making the determination the hearing officer may:
(1) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of the authority of school personnel in accordance with this part or that the child's behavior was a manifestation of the child's disability; or
(2) Order a change of placement of the child with a disability to an appropriate interim AES for not more than 45 school days if the hearing officer determines that maintaining the child's current placement is substantially likely to result in injury to the child or to others.
(13) Children not yet determined eligible for special education.
(ii) DoDEA shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred:
(iii) A school is deemed NOT to have knowledge that a child is a child with a disability if:
(iv) Conditions that apply if there is no basis of knowledge that the child is a child with a disability.
(B) If a request is made for an evaluation of a child during the time period when the child is subjected to disciplinary measures:
(1) The evaluation must be expedited.
(2) Until the evaluation is completed, the child remains in his or her then current educational placement, which can include suspension or expulsion without educational services.
(15) Children with disabilities who are placed in a non-DoDEA school or facility pursuant to an IEP.
(iii) DoDEA school officials shall initiate and conduct a meeting to develop an IEP for the child before placement. A representative of the non-DoD school or facility should attend the meeting. If the representative cannot attend, the DoDEA school officials shall communicate in other ways to facilitate participation including individual or conference telephone calls. A valid IEP must document the necessity of the placement in a non-DoD school or facility. The IEP must:
(iv) The DoD shall not be required to reimburse the costs of special education and related services if DoDEA made FAPE available in accordance with the requirements of the IDEA and a parent unilaterally places the child in a non-DoD school without the approval of DoDEA.
(B) Reimbursement may be reduced or denied:
(1) If, at the most recent CSC meeting that the parents attended prior to removal of the child from the DoDEA school, the parents did not inform the CSC that they were rejecting the placement proposed by the DoDEA school to provide FAPE to their child, including stating their concerns and their intent to enroll their child in non-DoD school at DoD expense.
(2) If, at least 10 business days (including for this purpose any holidays that occur on a Monday through Friday) prior to the removal of the child from the DoDEA school, the parents did not give written notice to the school principal or CSC chairperson of the information described in paragraph (b)(15)(iv)(B)(1) of this section.
(3) If, the CSC informed the parents of its intent to evaluate the child, using the notice requirement described in paragraph (b)(6)(i) and paragraph (b)(19) of this section, but the parents did not make the child available; or
(4) Upon a hearing officer finding of unreasonableness with respect to actions taken by the parents.
(C) Reimbursement may not be reduced or denied for failure to provide the required notice if:
(1) The DoDEA school prevented the parent from providing notice;
(2) The parents had not received notification of the requirement that the school provide prior written notice required by paragraph (b)(19) of this section;
(3) Compliance would result in physical or emotional harm to the child; or
(4) The parents cannot read and write in English.
(17) Parental consent—(i) Consent requirements. The consent of a parent of a child with a disability or suspected of having a disability shall be obtained before:
(ii) Consent for initial evaluation. If the parent of a child does not provide consent for an initial evaluation or fails to respond to a request for consent for an initial evaluation, then DoDEA may use the procedures described in paragraph (d) of this section to pursue an evaluation of a child suspected of having a disability.
(iii) Consent for reevaluation. The school must seek to obtain parental consent to conduct a reevaluation. If the parent does not provide consent or fails to respond to a request for consent for a reevaluation, then the school may conduct the reevaluation without parental consent if the school can demonstrate that it has made reasonable efforts to obtain parental consent and documented its efforts. The documentation must include a record of the school's attempts in areas such as:
(iv) Consent for the initial provision of special education and related services. The school that is responsible for making a FAPE available to a child with a disability under this part must seek to obtain informed consent from the parent of such child before providing special education and related services to the child. If the parent refuses initial consent for services, the DoDEA school:
(18) Parent revocation of consent for continued special education and related services.
(iii) Upon receiving a written revocation of consent, the DoDEA school must cease the provision of special education and related services and must provide the parents prior written notice before ceasing the provision of services. The notice shall comply with the requirements of paragraph (b)(19) of this section and shall advise the parents:
(iv) Revocation of consent for a particular service:
(19) Procedural safeguards—(i) Parental rights. Parents of children, ages 3 through 21 inclusive, with disabilities must be afforded procedural safeguards with respect to the provision of FAPE which shall include:
(D) The right to prior written notice when the school proposes to initiate or change, or refuses to initiate or change the identification, evaluation, educational placement, or provision of FAPE to a child with a disability.
(1) The notice shall include:
(i) A description of the action that is being proposed or refused.
(ii) An explanation of why the agency proposes or refuses to take the action.
(iii) A description of each evaluation procedure, assessment, record, or report used as a basis for the proposed or refused action.
(iv) A description of the factors that were relevant to the agency's proposal or refusal.
(v) A description of any other options considered by the CSC and the reasons why those options were rejected.
(vi) Each of the procedural safeguards that is available in accordance with the IDEA and this part.
(vii) Sources for parents to contact to obtain assistance in understanding the provisions of this part.
(viii) Dispute resolution procedures, including a description of mediation, how to file a complaint, due process hearing procedures, and applicable timelines.
(2) The notice must be provided in language understandable to a lay person and in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
(ii) Procedural safeguards notice. A DoDEA school shall not be required to give parents a copy of the procedural safeguards notice more than once a school year, except that a copy must be given to parents upon a request from the parents; upon initial referral for evaluation or parental request for evaluation; and upon receipt of the first due process complaint.
(A) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available, including:
(1) Independent evaluation for children (3 through 21 years, inclusive).
(2) Prior written notice.
(3) Parental consent.
(4) Access to educational records.
(5) Dispute resolution procedures together with applicable timelines including:
(i) The availability of mediation.
(ii) Procedures for filing a due process complaint and the required time period within which a due process complaint must be filed.
(iii) The opportunity for the DoDEA school system to resolve a due process complaint filed by a parent through the resolution process.
(iv) Procedures for filing an administrative complaint and for administrative resolution of the issues.
(6) The child's placement during pendency of due process proceedings in accordance with paragraph (d)(18) of this section.
(7) Procedures for children (3 through 21 years, inclusive) who are subject to placement in an interim AES.
(8) Requirements for unilateral placement by parents of children in private schools at public expense.
(9) Due process hearings, including requirements for disclosure of evaluation results and recommendations.
(10) The right to bring a civil action in a district court of the United States in accordance with paragraph (d)(21) of this section, including the time period in which to file such action.
(11) The possibility of an award of attorney's fees to the prevailing party in certain circumstances.
(B) The procedural safeguards notice must be:
(1) Written in language understandable to the general public.
(2) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the procedural safeguards notice is not translated into the native language of the parent, then the DoDEA school system shall ensure that:
(i) The notice is translated orally or by other means for the parent in his or her native language or other mode of communication.
(ii) The parent understands the content of the notice.
(iii) There is written evidence that the requirements above have been met.
(C) Written request for IEE. If a parent provides the DoDEA school system with a written request for an IEE funded by the school system, then the school system shall either:
(1) Agree to fund an appropriate IEE that meets the criteria the DoDEA school system would use for an initial evaluation of a child as set forth in paragraph (b)(19)(iii)(F) of this section, or
(2) Initiate a due process hearing in accordance with paragraph (d) of this section, without unnecessary delay, and demonstrate that its evaluation was appropriate under this part.
(i) If the DoDEA school system initiates a due process hearing and the final decision is that the school system's evaluation is appropriate, the parent still has the right to an IEE, but not at public expense.
(ii) If a parent requests an IEE, the DoDEA school system may ask for the parent's reason why he or she objects to the school system's evaluation. However, the parent may not be compelled to provide an explanation and the DoDEA school system may not unreasonably delay either agreeing to fund an IEE that meets DoDEA school system criteria or initiating a due process hearing to defend its evaluation.
(D) Parent-initiated evaluations. If the parent obtains an IEE funded by the school system or shares with the DoDEA school system an evaluation obtained at private expense:
(1) The results of the evaluation shall be considered by the DoDEA school if it meets the school system's criteria in any decision made with respect to the provision of FAPE to the child.
(2) The results may be presented by any party as evidence at a due process hearing under this section regarding that child.
(3) The DoDEA school system may not be required to fund an IEE that has been obtained by a parent if at a due process hearing initiated by either party and conducted under this section, the DoDEA school system demonstrates either that:
(i) The parentally obtained evaluation was not educationally appropriate or failed to meet agency criteria; or
(ii) The DoDEA school system's evaluation was appropriate.
(E) Hearing officer order for evaluation. A hearing officer may only order an IEE at the DoDEA school system's expense as part of a due process hearing under this section if:
(1) The school system has failed to demonstrate its assessment was appropriate; or
(2) The school system has not already funded an IEE in response to a given school evaluation.
(F) DoDEA school system criteria. An IEE provided at the DoDEA school system's expense must:
(1) Conform to the requirements of paragraph (b)(6)(viii) and (ix) of this section.
(2) Be conducted, when possible, in the geographic area where the child resides utilizing available qualified resources, including qualified examiners employed by the Military Department, in accordance with (b)(6)(iv) of this part, unless the parent can demonstrate to the satisfaction of the DoDEA school system or in a due process hearing filed in accordance with paragraph (d) of this section, that the geographic limitation renders the IEE impossible.
(v) Transfer of parental rights at age of majority.
(c) Procedures for provision of related services by the military departments to students with disabilities in a DoDDS—(1) Evaluation procedures.
(iv) The EDIS shall provide to the CSC an evaluation report that responds to the questions posed in the original request for an evaluation. The written report shall include:
(vi) If EDIS determines that in order to respond to the CSC referral the scope of its assessment and evaluation must be expanded beyond the areas specified in the initial parental permission, EDIS must:
(3) Liaison with DoDDS. Each EDIS shall designate a special education liaison officer to:
(2) Conferences. Whenever possible, parties are encouraged to resolve disputes through the use of conferences at the lowest level possible between the parents and EDIS or the DoDEA school.
(3) Administrative complaints.
(ii) An individual or organization may file an administrative complaint alleging issues relating to services required to be delivered under the IDEA and this part with:
(iii) An administrative complaint alleging issues relating to services required to be delivered under the IDEA or this part must include:
(D) If alleging violations with respect to specific children:
(1) The name of the school the child is attending.
(2) The name and address of the residence of the child.
(3) A description of the nature of the problem of the child, including facts relating to the problem.
(4) A proposed resolution of the problem to the extent known and available to the complainant at the time the complaint is filed.
(v) The complainant filing an administrative complaint alleging issues related to services required to be delivered under the IDEA or this part must forward a copy of the complaint to the DoDEA school or EDIS clinic serving the child at the same time the complainant files the complaint with the appropriate authority in paragraph (d)(3)(i) of this section.
(B) Upon receipt of a complaint, the responsible Military Department Inspector General or the OCA shall, if warranted, promptly open an investigation consistent with its established procedures for investigating complaints.
(1) The investigation shall afford the complainant an opportunity to submit additional information about the allegations.
(2) The investigation shall afford the DoDEA school system or the Military Department an opportunity to:
(i) Respond to the complaint;
(ii) Propose a resolution to the complaint; or
(iii) If the parties are willing, voluntarily engage in mediation of the complaint.
(3) The investigation shall produce a report consistent with those the investigating agency routinely provides, shall determine whether its findings support the complaint, and shall state whether the DoDEA school system or the Military Department is violating a requirement of the IDEA or this part.
(vi) The findings and conclusions of the report of investigation related to the administrative complaint shall be made available to the complainant and members of the public in accordance with the standard operating procedures of the investigating activity and 32 CFR parts 285 and 310.
(ix) If an issue raised in a complaint filed under this section has been previously decided in a due process hearing involving the same parties:
(4) Mediation.
(ii) Mediation must be voluntary on the part of the parties and shall not be used to deny or delay a parent's right to a due process hearing or to deny other substantive or procedural rights afforded under the IDEA.
(B) The initiating party's request must be written, include a description of the dispute, bear the signature of the requesting party, and be provided:
(1) In the case of a parent initiating mediation, to:
(i) The local EDIS program manager in disputes involving EDIS; or
(ii) The school principal in disputes involving a DoDEA school.
(2) In the case of the school or EDIS initiating mediation, to the parent.
(iv) The mediator shall be obtained from the Defense Office of Hearings and Appeals (DOHA) unless another qualified and impartial mediator is obtained by the Military Department or CEDR.
(ix) Mediation shall be conducted using the following rules:
(5) Due process complaint procedures.
(i) Parents of infants, toddlers, and children who are covered by this part and the cognizant Military Department or DoDEA, are afforded impartial hearings and administrative appeals after the parties have waived or participated in and failed to resolve a dispute through:
(ii) An impartial due process hearing is available to resolve any dispute concerning the provision of EIS to infants and toddlers with disabilities or with respect to any matter relating to the identification, evaluation, educational placement of, and the FAPE provided by the Department of Defense to children (ages 3 through 21, inclusive) who are covered by this part, in accordance with the IDEA and this part.
(iii) An expedited impartial due process hearing may be requested:
(vi) To file a petition that affords sufficient notice of the issues and commences the running of relevant timelines, petitioners shall specifically include in the petition:
(vii) When the cognizant Military Department or DoDEA petitions for a hearing, it shall additionally:
(viii) A special rule applies for expedited hearing requests. The petitioner must state, as applicable to his or her petition:
(ix) The petition or request for an expedited due process hearing must be delivered to:
(B) The respondent by mail, fax, email, or hand delivery.
(1) If the petitioner is a parent of a child (ages of 3 through 21, inclusive), or a child (in the event that rights have been transferred in accordance with paragraph (b)(19) of this section, the respondent is DoDEA and the petition must be delivered to and received by the principal of the school in which the child is enrolled, or if the child is enrolled in the Non-DoD School Program (NDSP) to the DoDEA General Counsel (generalcounsel@hq.dodea.edu).
(2) If the petitioner is the parent of an infant or toddler (birth up to 3 years of age), the respondent is the responsible Military Department and the petition must be delivered to and received by the EDIS manager.
(3) If the petitioner is the responsible Military Department or DoDEA, the petition must be delivered to and received by the parent of the child.
(x) The timelines for requesting and conducting a due process hearing are:
(A) Timelines for requesting a hearing. A petitioner may not allege a violation that occurred more than 2 years before the date the petitioner knew, or should have known, about the alleged action that forms the basis of the complaint, unless the parent was prevented from requesting the hearing due to:
(1) Specific misrepresentation by DoDEA or EDIS that it had resolved the problem forming the basis of the complaint.
(2) The withholding of information by DoDEA or EDIS from the petitioning parent that was required to be provided to the parent in accordance with the IDEA and this part.
(B) Timelines for conducting a due process hearing. Except as provided in paragraph (d)(5)(x)(D) and (d)(8)(ii) of this section, a hearing officer shall issue findings of fact and conclusions of law not later than 50 business days:
(1) In a case involving EDIS, following the filing and service of a legally sufficient petition or amended petition in accordance with this section.
(2) In disputes involving a school and a child age 3 through 21, inclusive, following the filing and service of a legally sufficient petition or amended petition in accordance with this section and the hearing officer's receipt of notice that the 30-day resolution period concluded without agreement, the parties waived the resolution meeting, or the parties concluded mediation in lieu of the resolution process without reaching agreement.
(C) Exceptions to the timelines for conduct of a hearing. (1) When the hearing officer grants a request for discovery made by either party, as provided for in paragraph (d)(10) of this section, in which case the time required for such discovery does not count toward the 50 business days.
(2) When the hearing officer grants a specific extension of time for good cause in accordance with paragraph (d)(8) of this section.
(6) Responses and actions required following receipt of a petition or request for expedited hearing.
(i) Immediately upon receipt of the petition, the Director, DOHA, shall appoint a hearing officer to take charge of the case.
(iv) If the respondent is the cognizant Military Department or DoDEA, the response shall include:
(vii) Parties may amend a petition only if:
(viii) The filing of an amended petition resets the timelines for:
(7) Statutory resolution process. A resolution meeting shall be convened by DoDEA and a resolution period afforded, in accordance with this section, for any dispute in which a due process petition has been filed regarding the identification, evaluation, or educational placement, or the provision of FAPE for children ages 3 to 21, inclusive.
(i) Within 15 calendar days of receiving the parent's petition for due process (7 calendar days in the case of an expedited hearing), DoDEA, through the pertinent school principal or superintendent, shall convene a dispute resolution meeting, which must be attended by:
(iii) Failure to convene or participate in resolution meeting.
(v) The resolution period may be adjusted because of one of the following events:
(vi) If a partial or complete resolution to the dispute is reached at the resolution meeting, the parties must execute a written agreement that is:
(viii) If DoDEA has not resolved the complaint to the satisfaction of the parents at the expiration of the resolution period or the adjusted resolution period, if applicable:
(ix) If the parties execute a binding written agreement at the conclusion of the resolution period, and do not subsequently declare it void during the 3-business day agreement review period, then:
(ii) Hearing officer duties. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include, but are not limited to, the authority to:
(C) Rule on questions of timeliness and grant specific extension of time for good cause either on his or her own motion or at the request of either party.
(1) Good cause includes the time required for mediation in accordance with paragraph (d)(4) of this section where the parties have jointly requested an extension of time in order to complete mediation.
(2) If the hearing officer grants an extension of time, he or she shall identify the length of the extension and the reason for the extension in the record of the proceeding. Any such extension shall be excluded from the time required to convene a hearing or issue a final decision, and at the discretion of the hearing officer may delay other filing dates specified by this section.
(J) Issue a decision on substantive grounds based on a determination of whether the child received a FAPE. When the petition alleges a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies:
(1) Impeded the child's right to a FAPE;
(2) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or
(3) Caused a deprivation of educational benefits.
(K) Order such relief as is necessary for the child to receive a FAPE or appropriate EIS, including ordering the DoDEA school system or the responsible Military Department to:
(1) Correct a procedural deficiency that caused a denial of a FAPE or appropriate EIS;
(2) Conduct evaluations or assessments and report to the hearing officer;
(3) Change the school-aged child's placement or order the child to an AES for up to 45 days;
(4) Provide EIS or specific school-age educational or related services to a child to remedy a denial of FAPE, including compensatory services when appropriate and in accordance with the current early intervention or educational program; or
(5) Placement of a school-aged child in an appropriate residential program for children with disabilities at DoD expense, when appropriate under the law and upon a determination that DoDEA has failed to provide and cannot provide an otherwise eligible child with a FAPE at the appropriate DoD facility.
(i) A residential program must be one that can address the specific needs of the child as determined by the DoDEA school.
(ii) The program should, whenever possible, be located near members of the child's family.
(9) Attendees at the hearing. Attendance at the hearing is limited to:
(10) Discovery.
(12) Location of hearing. Subject to modification by the hearing officer for good cause shown or upon the agreement of the parties, the hearing shall be held:
(13) Witnesses and documentary evidence.
(14) Transcripts.
(15) Hearing officer's written decision.
(16) Determination without hearing.
(17) Appeal of hearing officer decision.
(18) Maintenance of current educational placement.
(19) General hearing administration. The Director, DOHA, shall:
(ii) Appoint hearing officers from the DOHA Administrative judges who shall:
(B) Possess the knowledge of and ability to:
(1) Understand the provisions of the IDEA and this part, and related Federal laws and legal interpretations of those regulations by Federal courts.
(2) Conduct hearings in accordance with appropriate, standard legal practice.
(3) Render and write decisions in accordance with the requirements of this part.
(C) Be disqualified from presiding in any individual case if the hearing officer:
(1) Has a personal or professional interest that conflicts with the hearing officer's objectivity in the hearing.
(2) Is a current employee of, or military member assigned to, DoDEA or the Military Medical Department providing services in accordance with the IDEA and this part.
(e) DoD-CC on early intervention, special education, and related services—(1) Committee membership. The DoD-CC shall meet at least annually to facilitate collaboration in early intervention, special education, and related services in the Department of Defense. The Secretary of Defense shall appoint representatives to serve on the DoD-CC who shall be full-time or permanent part-time government employees or military members from:
(2) Responsibilities. The responsibilities of the DoD-CC include:
(iii) Designation of a subcommittee on compliance to:
(f) Monitoring—(1) Program monitoring and oversight.
(ii) The primary focus of monitoring shall be on:
(iii) Monitoring shall include the following priority areas and any additional priority areas identified by the USD(P&R):
(2) Compliance reporting. The Director, DoDEA, and the Military Departments shall submit reports to the DoD-CC not later than September 30 each year that summarize the status of compliance. The reports shall:
(3) School level reporting.
(i) The reporting requirements for school aged children (3 through 21, inclusive) with disabilities shall also include:
(A) Data to determine if significant disproportionality based on race and ethnicity is occurring with respect to:
(1) The identification of school-aged children as children with disabilities including the identification of children as children with disabilities affected by a particular impairment described in paragraph (g) of this section.
(2) The placement of these children in particular educational settings.
(3) The incidence, duration, and type of disciplinary suspensions and expulsions.
(4) Removal to an interim AES, the acts or items precipitating those removals, and the number of children with disabilities who are subject to long-term suspensions or expulsions.
(5) The number and percentage of school-aged children with disabilities, by race, ethnicity, limited English proficiency status, gender, and disability category, who are:
(i) Receiving special education and related services.
(ii) Participating in regular education.
(iii) In separate classes, separate schools or facilities, or public or private residential facilities.
(4) Early intervention reporting. The reporting requirements for infants and toddlers with disabilities shall also include:
(i) Data to determine if significant disproportionality based on race, gender, and ethnicity is occurring with respect to infants and toddlers with disabilities who:
(5) USD(P&R) oversight.
(iii) For DoD-CC monitoring visits, the Secretaries of the Military Departments shall:
(iv) For DoD-CC monitoring visits, the Director, DoDEA, shall:
(vi) The GC, DoD shall:
(g) Types of disabilities in children ages 3 through 21. A child may be eligible for services under paragraph (b) of this section if by reason of one of the following disabilities the child needs special education and related services.
(5) Emotional disturbance. A condition confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance and exhibits one or more of the following characteristics: