82 FR 29755 - Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities Program; Early Intervention Program for Infants and Toddlers With Disabilities

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 125 (June 30, 2017)

The Secretary of Education (Secretary) amends the regulations implementing Parts B and C of the Individuals with Disabilities Education Act (IDEA). These conforming changes are needed to implement statutory amendments made to the IDEA by the Every Student Succeeds Act (ESSA), enacted on December 10, 2015. These regulations remove and revise IDEA definitions based on changes made to the definitions in the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the ESSA, and also update several State eligibility requirements to reflect amendments to the IDEA made by the ESSA. They also update relevant cross-references in the IDEA regulations to sections of the ESEA to reflect changes made by the ESSA. These regulations also include several technical corrections to previously published IDEA Part B regulations.

[Federal Register Volume 82, Number 125 (Friday, June 30, 2017)]
[Rules and Regulations]
[Pages 29755-29761]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-13801]



[[Page 29755]]

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DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 303

RIN 1820-AB74


Assistance to States for the Education of Children With 
Disabilities and Preschool Grants for Children With Disabilities 
Program; Early Intervention Program for Infants and Toddlers With 
Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary of Education (Secretary) amends the regulations 
implementing Parts B and C of the Individuals with Disabilities 
Education Act (IDEA). These conforming changes are needed to implement 
statutory amendments made to the IDEA by the Every Student Succeeds Act 
(ESSA), enacted on December 10, 2015. These regulations remove and 
revise IDEA definitions based on changes made to the definitions in the 
Elementary and Secondary Education Act of 1965 (ESEA), as amended by 
the ESSA, and also update several State eligibility requirements to 
reflect amendments to the IDEA made by the ESSA. They also update 
relevant cross-references in the IDEA regulations to sections of the 
ESEA to reflect changes made by the ESSA. These regulations also 
include several technical corrections to previously published IDEA Part 
B regulations.

DATES: These final regulations are effective June 30, 2017.

FOR FURTHER INFORMATION CONTACT: Mary Louise Dirrigl, U.S. Department 
of Education, 550 12th Street SW., Potomac Center Plaza, Room 5156, 
Washington, DC 20202-2641. Telephone: (202) 245-7324 or by email: 
[email protected]. If you use a telecommunications device for 
the deaf (TDD) or a text telephone (TTY), call the Federal Relay 
Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of This Regulatory Action: Enacted December 10, 2015, the 
ESSA \1\ reauthorized the ESEA, which provides Federal funds to improve 
elementary and secondary education in the Nation's public schools. The 
ESSA also made certain changes to sections 602 and 611 through 614 of 
the IDEA. Consequently, we are amending the IDEA regulations in parts 
300 and 303 to reflect these changes.
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    \1\ Unless otherwise indicated, citations to the ESEA refer to 
the ESEA, as amended by the ESSA.
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    Summary of the Major Provisions of This Regulatory Action: For the 
IDEA regulations in parts 300 and 303, these regulations:
     Revise the definition of the term ``charter school'' in 
Sec.  300.7 to update the statutory reference to the ESEA's amended 
definition of that term.
     Remove the definition of the term ``core academic 
subjects'' in Sec.  300.10, the definition of ``highly qualified 
special education teachers'' in Sec.  300.18, and the definition of 
``scientifically based research'' in Sec. Sec.  300.35 and 303.32 
because these terms have been removed from the ESEA.
     Revise the term ``Limited English proficient'' in Sec.  
300.27 to reflect the revisions to the term ``English learner'' in 
section 8101 of the ESEA.
     Revise Sec.  300.102(a)(3)(iv) to incorporate the 
definition of ``regular high school diploma'' in section 8101(43) of 
the ESEA.
     Move the qualification requirements for special education 
teachers from Sec.  300.18(b)(1) and (2) to Sec.  300.156(c).
     Revise Sec.  300.160(c) to reflect amendments made to the 
IDEA by the ESSA that clarify that guidelines and alternate assessments 
to measure academic progress under title I of the ESEA apply only to 
children with disabilities who are students with the most significant 
cognitive disabilities, whose achievement is measured against alternate 
academic achievement standards if a State has adopted such standards as 
permitted under section 1111(b)(1)(E) of the ESEA.
     Revise paragraph (b)(4)(xi) of Sec.  300.704 (State-level 
activities), regarding the provision of technical assistance to schools 
and local educational agencies (LEAs) implementing comprehensive 
support and improvement activities or targeted support and improvement 
activities under section 1111(d) of the ESEA on the basis of consistent 
underperformance of the disaggregated subgroup of children with 
disabilities, to include direct student services described in section 
1003A(c)(3) of the ESEA to children with disabilities.

Part 300 Regulatory Changes

Subpart A--General

Definitions Used in This Part
    We are revising the definition of ``charter school'' in Sec.  300.7 
by removing the phrase ``section 5210(1)'' and replacing it with 
``section 4310(2).'' We are revising the authority citation for Sec.  
300.7 by removing ``20 U.S.C. 7221i(1)'' and replacing it with ``20 
U.S.C. 7221i(2).''
    We are removing the definition of ``core academic subjects'' in 
Sec.  300.10 and reserving Sec.  300.10. This change is consistent with 
section 9215(ss)(1)(A) of the ESSA, which eliminated section 602(4) of 
the IDEA.
    Consistent with section 9215(ss)(1)(B) of the ESSA, we are revising 
the definition of ``excess cost'' in Sec.  300.16. Specifically, we are 
revising the cross-reference to the ESEA in Sec.  300.16(a)(3) to read 
``under part A of title III of the ESEA.''
    We are removing the definition of ``highly qualified special 
education teachers'' in Sec.  300.18, consistent with section 
9214(d)(1) of the ESSA, which eliminated section 602(10) of the IDEA, 
and we are reserving Sec.  300.18. Consequently, we are removing the 
references to Sec.  300.18 in Sec. Sec.  300.138(a)(1) and 300.146(b) 
and adding a reference to Sec.  300.156(c) in Sec.  300.138(a)(1), as 
explained below. Based on the amendments made to the IDEA by section 
9214(d)(2)(A) of the ESSA, as discussed in Subpart B, we are moving 
Sec.  300.18(b)(1) and (2), regarding qualifications for special 
education teachers, to Sec.  300.156(c). Consistent with changes made 
by section 9214(d)(2)(B) and (C) to section 612(a)(14)(D) and (E) of 
the IDEA, we are also removing references to the term ``highly 
qualified'' in Sec.  300.156(d) and (e) and replacing them with 
references to personnel ``who meet the applicable requirements 
described in paragraph (c) of this section.''
    Consistent with section 9215(ss)(1)(C) of the ESSA, which amended 
section 602(18) of the IDEA, we are revising the definition of 
``Limited English proficient'' in Sec.  300.27 to adopt the meaning 
given to the term ``English learner'' in section 8101 of the ESEA.
    Consistent with section 8002(1) of the ESEA, we are removing the 
definition of ``scientifically based research'' in Sec.  300.35 because 
this definition has been removed from the ESEA. Section 300.35 is 
reserved. However, we are retaining references to ``scientifically 
based research'' in Sec. Sec.  300.604(a)(1)(ii) and 300.704(b)(4)(xi), 
because these references were retained in sections 616(e)(1)(A)(ii) and 
611(e)(2)(C)(xi), respectively.
    We are revising the following cross-references to definitions:
     The cross-reference to the definition of ``special 
education'' in Sec.  300.105(a)(1) is changed from Sec.  300.36 to 
Sec.  300.39, and from Sec.  300.38 to Sec.  300.39 in Sec.  
300.115(b)(1).

[[Page 29756]]

     The cross-reference to the definition of ``supplementary 
aids and services'' in Sec.  300.105(a)(3) is changed from Sec.  300.38 
to Sec.  300.42, and from Sec.  300.41 to Sec.  300.42 in Sec.  
300.154(b)(1)(i).
     The cross-reference to the definition of ``transition 
services'' in Sec.  300.154(b)(1)(i) is changed from Sec.  300.42 to 
Sec.  300.43.

Subpart B--State Eligibility

Free Appropriate Public Education (FAPE) Requirements
    We are revising Sec.  300.102(a)(3)(iv) to incorporate the 
definition of ``regular high school diploma'' currently included in 
section 8101(43) of the ESEA. The term means the standard high school 
diploma awarded to the preponderance of students in the State that is 
fully aligned with State standards, or a higher diploma, except that a 
regular high school diploma shall not be aligned to the alternate 
academic achievement standards described in section 1111(b)(1)(E) of 
the ESEA. A regular high school diploma does not include a recognized 
equivalent of a diploma, such as a general equivalency diploma, 
certificate of completion, certificate of attendance, or similar lesser 
credential. We are making this conforming change to ensure that 
``regular high school diploma'' has the same meaning under the IDEA and 
the ESEA, and the definition is consistently applied under both 
programs. We are also updating the authority citation to reflect this 
change.
Additional Eligibility Requirements
    Consistent with section 9214(d)(2)(A) of the ESSA, we are revising 
Sec.  300.156(c) by removing the language indicating that each person 
employed as a public school special education teacher in the State must 
be highly qualified by the deadline established in section 1119(a)(2) 
of the ESEA. In its place at Sec.  300.156(c), we are adding language 
from the current definition of ``highly qualified'' in Sec.  
300.18(b)(1). The revisions are needed to clarify that the IDEA, as 
amended by the ESSA, retains the same requirements as in current Sec.  
300.18(b)(1) governing the qualifications of special education 
teachers. Additionally, consistent with section 9214(d)(2)(A) of the 
ESSA, we are retaining the requirements in current Sec.  300.18(b)(2), 
regarding participation in an alternate route to certification as a 
special educator. The retention of these requirements is consistent 
with amendments to section 612(a)(14)(C)(i) of the IDEA, which require 
that an alternate route to certification as a special educator meets 
the minimum requirements described in 34 CFR 200.56(a)(2)(ii), as such 
section was in effect on November 28, 2008. Because 34 CFR 
200.56(a)(2)(ii), as in effect on November 28, 2008, included the 
language in current Sec.  300.18(b)(2), we are moving the language in 
current Sec.  300.18(b)(2) to new Sec.  300.156(c)(2). Additionally, 
consistent with amendments to section 612(a)(14)(D) and (E) of the IDEA 
made by section 9214(d)(2)(B) and (C) of the ESSA, we are removing 
references to ``highly qualified'' in paragraphs (d) and (e) of Sec.  
300.156 and replacing them with references to personnel ``who meet the 
applicable requirements described in paragraph (c) of this section.''
    Consistent with section 9215(ss)(3)(A) of the ESSA, which amended 
section 612(a)(15) of the IDEA (Performance goals and indicators), we 
are making the following changes to Sec.  300.157. Consistent with 
section 9215(ss)(3)(A)(i) of the ESSA, which amended section 
612(a)(15)(A)(ii) of the IDEA, we are replacing Sec.  300.157(a)(2) in 
its entirety with the language ``Are the same as the State's long-term 
goals and measurements of interim progress for children with 
disabilities under section 1111(c)(4)(A)(i) of the ESEA.'' Consistent 
with amendments to section 612(a)(15)(B) made by section 
9215(ss)(3)(A)(ii) of the ESSA, we are also revising Sec.  300.157(b) 
by replacing the language ``including measurable annual objectives for 
progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)'' with ``including measurements of interim 
progress for children with disabilities under section 
1111(c)(4)(A)(i).''
    We are making a number of amendments to Sec. Sec.  300.160(c) 
through (f) to address amendments made by section 9215(ss)(3)(B) of the 
ESSA to section 612(a)(16)(C)(ii) of the IDEA, as well as changes made 
by the ESSA to section 1111(b)(2)(D) of the ESEA, which affect current 
(d), (e), and (f) of Sec.  300.160. We are changing the title of Sec.  
300.160(c) from ``Alternate Assessments'' to ``Alternate Assessments 
Aligned with Alternate Academic Achievement Standards for Students with 
the Most Significant Cognitive Disabilities.'' We are adding the phrase 
``children with disabilities who are students with the most significant 
cognitive disabilities'' in Sec.  300.160(c)(1) with respect to State 
guidelines for participation in alternate assessments, because section 
9215(ss)(3)(B) of the ESSA clarifies that the State guidelines referred 
to in section 612(a)(16)(C)(i) of the IDEA apply only to participation 
of children with disabilities who are students with the most 
significant cognitive disabilities in alternate assessments aligned 
with alternate academic achievement standards as permitted under 
section 1111(b)(1)(E) of the ESEA, if those children cannot take 
regular assessments, even with accommodations as indicated in their 
respective individualized education programs (IEPs).
    Consistent with section 9215(ss)(3)(B) of the ESSA, which amended 
section 612(a)(16)(C)(ii) of the IDEA, we are also reorganizing Sec.  
300.160(c)(2) for greater clarity and to ensure consistency with 34 CFR 
200.6(c) of the regulations for title I, part A of the ESEA. These 
changes will clarify that if a State has adopted alternate academic 
achievement standards as permitted under section 1111(b)(1)(E) of the 
ESEA and 34 CFR 200.1(d) of the regulations for title I, part A of the 
ESEA, the State must conduct alternate assessments that measure the 
achievement of children with disabilities who are students with the 
most significant cognitive disabilities against those standards. 
Consistent with amendments made to section 612(a)(16)(C)(ii) of the 
IDEA by section 9215(ss)(3)(B) of the ESSA, we are replacing the phrase 
``the State's challenging academic content standards and challenging 
student academic achievement standards'' with ``challenging State 
academic content standards under section 1111(b)(1) of the ESEA and 
alternate academic achievement standards under section 1111(b)(1)(E) of 
the ESEA.'' Accordingly, Sec.  300.160(c)(2)(iii) is removed, because 
the statutory amendments that form the basis for the above regulatory 
changes clarify that in assessing the academic progress of children 
with disabilities under title I, part A of the ESEA, the only alternate 
assessments permitted under the IDEA and title I of the ESEA are 
alternate assessments aligned with alternate academic achievement 
standards for children with disabilities who are students with the most 
significant cognitive disabilities under section 1111(b)(2)(D) of the 
ESEA. We are amending Sec.  300.160(c)(3) by adding a reference to 
section 1111(b)(1)(E)(ii) of the ESEA and changing the title I, part A 
regulatory reference to Sec.  200.6(c)(6) to reinforce that States are 
prohibited from adopting modified academic achievement standards or any 
other alternate academic achievement standards that do not meet the 
requirements in section 1111(b)(1)(E) of the ESEA for any students with 
disabilities under section 602(3) of the IDEA.
    Consistent with section 1111(b)(2)(D)(i)(II) of the ESEA, and 34

[[Page 29757]]

CFR 200.6(d)(2), we are amending Sec.  300.160(d) (Explanation to IEP 
Teams). We are adding new Sec.  300.160(d)(1) to read, ``A State (or in 
the case of a district-wide assessment, an LEA) must provide to IEP 
teams a clear explanation of the differences between assessments based 
on grade-level academic achievement standards and those based on 
alternate academic achievement standards, including any effects of 
State and local policies on a student's education resulting from taking 
an alternate assessment aligned with alternate academic achievement 
standards, such as how participation in such assessments may delay or 
otherwise affect the student from completing the requirements for a 
regular high school diploma.'' Consistent with section 
1111(b)(2)(D)(i)(VII) of the ESEA, and 34 CFR 200.6(d)(4), we have 
added new Sec.  300.160(d)(2), which reads, ``A State (or in the case 
of a district-wide assessment, an LEA) must not preclude a student with 
the most significant cognitive disabilities who takes an alternate 
assessment aligned with alternate academic achievement standards from 
attempting to complete the requirements for a regular high school 
diploma.'' Even though this language is now reflected in 34 CFR 
200.6(d)(2) and (4), we believe this is important information for IEP 
teams to have in ensuring that students with the most significant 
cognitive disabilities taking alternate assessments aligned with 
alternate academic achievement standards receive the special education 
and related services that they need to enable them to be involved and 
make progress in the general education curriculum that is aligned with 
the State's challenging academic content standards for the grade in 
which the student is enrolled. Similarly, we believe it is important 
for parents to be fully informed of the possible implications of their 
child's participation in alternate assessments aligned with alternate 
academic achievement standards. Therefore, consistent with section 
1111(b)(2)(D)(i)(II) of the ESEA, and 34 CFR 200.6(d)(3), we have 
revised Sec.  300.160(e) (Inform parents) to read, ``A State (or in the 
case of a district-wide assessment, an LEA) must ensure that parents of 
students selected to be assessed using an alternate assessment aligned 
with alternate academic achievement standards under the State's 
guidelines referred to in paragraph (c)(1) are informed, consistent 
with Sec.  200.2(e), that their child's achievement will be measured 
based on alternate academic achievement standards, and how 
participation in such assessments may delay or otherwise affect the 
student from completing the requirements for a regular high school 
diploma.'' This revised language is also consistent with 34 CFR 
200.6(d)(3), implementing title I, part A of the ESEA.
    Consistent with section 612(a)(16)(C) of the IDEA and section 
1111(b)(1)(E)(ii) of the ESEA, we are revising Sec.  300.160(f) to make 
clear that school year 2016-2017 is the last school year for which 
States may report on the participation and performance of children with 
disabilities taking alternate assessments based on grade-level 
achievement standards. We are also correcting an inadvertent error in 
Sec.  300.160(f)(3), regarding participation in assessments, that was 
included in the August 21, 2015 regulations governing title I, part A 
of the ESEA. See Improving the Academic Achievement of the 
Disadvantaged; Assistance to States for the Education of Children With 
Disabilities. 80 FR 50773. We are replacing school years prior to 
``2015-2016'' with school years prior to ``2016-2017.'' This correction 
clarifies that school year 2015-2016, not school year 2014-2015, was 
the last school year in which States were permitted to administer 
alternate assessments based on modified academic achievement standards. 
We have also removed the words ``if any'' from Sec.  300.160(f)(4), 
because the only alternate assessments that States may conduct to 
assess academic progress under title I of the ESEA are alternate 
assessments aligned with alternate academic achievement standards for 
students with the most significant cognitive disabilities. We are also 
changing the words ``based on'' to ``aligned with'' in paragraphs 
(f)(3) and (4) of Sec.  300.160 to be consistent with the language used 
elsewhere in Sec.  300.160(c) referring to alternate assessments 
conducted under this section.

Subpart C--Local Educational Agency Eligibility

    Consistent with section 9215(ss)(4) of the ESSA, which amended 
section 613(a)(3) of the IDEA, we are revising Sec.  300.207, regarding 
personnel development, by removing the reference to ``section 2122 of 
the ESEA'' and replacing it with ``section 2102(b) of the ESEA.''

Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

    Evaluations and Reevaluations
    Consistent with section 9215(ss)(5) of the ESSA, which amended 
section 614(b)(5)(A) of the IDEA, we are revising Sec.  
300.306(b)(1)(i), regarding determination of eligibility, by inserting 
the phrase ``as such section was in effect on the day before the date 
of enactment of the Every Student Succeeds Act (December 9, 2015)'' 
after ``ESEA.'' Development of IEP
    We are correcting an inadvertent error in Sec.  300.324(d)(2)(ii) 
(Children with disabilities in adult prisons) by changing the least 
restrictive environment reference from Sec.  300.112 to Sec.  300.114.

Subpart G--Authorization, Allotment, Use of Funds, and Authorization of 
Appropriations

Allotments, Grants, and Use of Funds
    Consistent with section 9215(ss)(2)(A) and (B) of the ESSA, which 
amended section 611(e)(2)(C) and (e)(3)(C)(ii)(I)(bb) of the IDEA, we 
are making the following revisions. We are revising Sec.  300.704(b)(4) 
(Other State-level activities) as follows:
     Removing ``section 6111 of the ESEA'' from paragraph (x) 
and replacing it with ``section 1201 of the ESEA.''
     Revising paragraph (xi) regarding the provision of 
technical assistance to schools and LEAs by removing ``including 
supplemental educational services as defined in section 1116(e) of the 
ESEA to children with disabilities, in schools or LEAs identified for 
improvement under section 1116 of the ESEA on the sole basis of the 
assessment results of the disaggregated subgroup of children with 
disabilities'' and replacing it with ``including direct student 
services described in section 1003A(c)(3) of the ESEA to children with 
disabilities, to schools or LEAs implementing comprehensive support and 
improvement activities or targeted support and improvement activities 
under section 1111(d) of the ESEA on the basis of consistent 
underperformance of the disaggregated subgroup of children with 
disabilities.''
     Replacing the phrase ``to meet or exceed the objectives 
established by the State under section 1111(b)(2)(G) of the ESEA'' with 
``based on the challenging academic standards described in section 
1111(b)(1) of the ESEA.''
     Finally, we are revising Sec.  300.704(c)(3)(i)(A)(2), 
regarding the LEA high cost fund, by changing the ESEA reference from 
section 9101 to section 8101.

Part 303 Regulatory Changes

Subpart A--General

Definitions Used in This Part
    Consistent with section 8002(1) of the ESEA, we are removing the 
definition of

[[Page 29758]]

``scientifically based research'' from Sec.  303.32, because this 
definition has been removed from the ESEA. Section 303.32 is reserved. 
The definition of ``scientifically based research'' was adopted in the 
2011 regulations under Part C of the IDEA to cross-reference the same 
definition under the ESEA. However, the term ``scientifically based 
research'' is still retained and applies to Sec.  303.112 of the Part C 
regulations regarding the State's responsibility to make early 
intervention services available under section 635(a)(2) of the IDEA. 
See 76 FR 60140, 60163-60164 (Sept. 28, 2011).

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and review by the Office of 
Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866, it 
must identify two deregulatory actions. For Fiscal Year 2017, any new 
incremental costs associated with a new regulation must be fully offset 
by the elimination of existing costs through deregulatory actions. The 
final regulations are not a significant regulatory action. Therefore, 
the requirements of Executive Order 13771 do not apply.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only upon a reasoned 
determination that their benefits will justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.

Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action and have determined that these 
regulations will not impose additional costs to States and LEAs or to 
the Federal government. These regulations do not impose additional 
costs or administrative burdens because States will be in the process 
of developing and revising their regulations implementing title I of 
the ESEA to conform with the changes made by the ESSA. We believe any 
additional costs imposed on States by these final regulations will be 
negligible, primarily because they reflect technical changes which do 
not impose additional burden. Moreover, we believe any costs will be 
significantly outweighed by the potential benefits of ensuring 
consistency among the implementation of the IDEA and ESSA requirements 
for children with disabilities.

Waiver of Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, the APA provides that an 
agency is not required to conduct notice- and-comment rulemaking when 
the agency, for good cause, finds that notice and public comment 
thereon are impracticable, unnecessary, or contrary to the public 
interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking 
here as unnecessary.
    Rulemaking is ``unnecessary'' in those situations in which ``the 
administrative rule is a routine determination, insignificant in nature 
and impact, and inconsequential to the industry and to the public.'' 
Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. 
Cir. 2001), quoting U.S. Department of Justice, Attorney General's 
Manual on the Administrative Procedure Act 31 (1947) and South Carolina 
v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). These regulations 
implement the technical amendments made to the IDEA by the ESSA and 
include revisions made for consistency with the statute.
    The APA also generally requires that regulations be published at 
least 30 days before their effective date, unless the agency has good 
cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, 
because these final regulations include only conforming changes and 
technical corrections, there is good

[[Page 29759]]

cause to make them effective on the day they are published.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 
requirements.

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. One of the objectives of 
the Executive order is to foster an intergovernmental partnership and a 
strengthened federalism. The Executive order relies on processes 
developed by State and local governments for coordination and review of 
proposed Federal financial assistance. This document provides early 
notification of the Department's specific plans and actions for this 
program.

Assessment of Educational Impact

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List of Subjects in 34 CFR Parts 300 and 303

    Administrative practice and procedure, Education of individuals 
with disabilities, Elementary and secondary education, Equal 
educational opportunity, Grant programs--education, Privacy, Private 
schools, Reporting and recordkeeping requirements.

    Dated: June 27, 2017.
Betsy DeVos,
Secretary of Education.
    For the reasons discussed in the preamble, the Secretary amends 
parts 300 and 303 of title 34 of the Code of Federal Regulations as 
follows:

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILITIES

0
1. The authority citation for part 300 is revised to read as follows:

    Authority:  20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474, unless 
otherwise noted.


Sec.  300.7  [Amended]

0
2. Section 300.7 is amended by removing the phrase ``section 5210(1)'' 
and adding in its place ``section 4310(2)'' and by removing the 
authority citation ``20 U.S.C. 7221i(1)'' and adding in its place ``20 
U.S.C. 7221i(2)''.


Sec.  300.10  [Removed and Reserved]

0
3. Remove and reserve Sec.  300.10.


Sec.  300.16  [Amended]

0
4. Section 300.16 is amended in paragraph (a)(3) by removing the words 
``Parts A and B'' and adding in its place ``Part A''.


Sec.  300.18  [Removed and Reserved]

0
5. Remove and reserve Sec.  300.18.


Sec.  300.27  [Amended]

0
6. Section 300.27 is amended by removing the phrase ``in section 
9101(25) of the ESEA'' and adding in its place ```English learner' in 
section 8101 of the ESEA''.


Sec.  300.35  [Removed and Reserved]

0
7. Remove and reserve Sec.  300.35.

0
8. Section 300.102 is amended by revising paragraph (a)(3)(iv) and by 
revising the authority citation to read as follows:


Sec.  300.102   Limitation--exception to FAPE for certain ages.

    (a)* * *
    (3)* * *
    (iv) As used in paragraphs (a)(3)(i) through (iii) of this section, 
the term regular high school diploma means the standard high school 
diploma awarded to the preponderance of students in the State that is 
fully aligned with State standards, or a higher diploma, except that a 
regular high school diploma shall not be aligned to the alternate 
academic achievement standards described in section 1111(b)(1)(E) of 
the ESEA. A regular high school diploma does not include a recognized 
equivalent of a diploma, such as a general equivalency diploma, 
certificate of completion, certificate of attendance, or similar lesser 
credential.
* * * * *

    Authority:  20 U.S.C. 1412(a)(1)(B)-(C) and 7801(43).


Sec.  300.105  [Amended]

0
9. Section 300.105 is amended:
0
A. In paragraph (a)(1) by removing ``Sec.  300.36'' and adding in its 
place ``Sec.  300.39''.
0
B. In paragraph (a)(3) by removing ``Sec.  300.38'' and adding in its 
place ``Sec.  300.42''.


Sec.  300.115  [Amended]

0
10. Section 300.115 is amended in paragraph (b)(1) by removing ``Sec.  
300.38'' and adding in its place ``Sec.  300.39''.


Sec.  300.138  [Amended]

0
11. Section 300.138 is amended in paragraph (a)(1) by removing the 
phrase ``highly qualified special education teacher requirements of 
Sec.  300.18'' and adding in its place ``special education teacher 
qualification requirements in Sec.  300.156(c)''.


Sec.  300.146  [Amended]

0
12. Section 300.146 is amended in paragraph (b) by removing ``Sec.  
300.18 and''.


Sec.  300.154  [Amended]

0
13. Section 300.154 is amended in paragraph (b)(1)(i) by removing 
``Sec.  300.41'' and ``Sec.  300.42'' and adding in their place ``Sec.  
300.42'' and ``Sec.  300.43'', respectively.

0
14. Section 300.156 is amended:
0
A. By revising paragraph (c).
0
B. In paragraph (d) by removing the term ``highly qualified'' and 
adding in its place ``who meet the applicable requirements described in 
paragraph (c) of this section'' after the word ``personnel''.
0
C. In paragraph (e) by removing the phrase ``be highly qualified'' and 
adding in its place ``meet the applicable requirements described in 
paragraph (c) of this section''.
    The revision reads as follows:


Sec.  300.156   Personnel qualifications.

* * * * *
    (c) Qualifications for special education teachers. (1) The 
qualifications described in paragraph (a) of this section must ensure 
that each person employed as a public school special education teacher 
in the State who teaches in an elementary school, middle school, or 
secondary school--

[[Page 29760]]

    (i) Has obtained full State certification as a special education 
teacher (including certification obtained through an alternate route to 
certification as a special educator, if such alternate route meets 
minimum requirements described in 34 CFR 200.56(a)(2)(ii) as such 
section was in effect on November 28, 2008), or passed the State 
special education teacher licensing examination, and holds a license to 
teach in the State as a special education teacher, except that when 
used with respect to any teacher teaching in a public charter school, 
the teacher must meet the certification or licensing requirements, if 
any, set forth in the State's public charter school law;
    (ii) Has not had special education certification or licensure 
requirements waived on an emergency, temporary, or provisional basis; 
and
    (iii) Holds at least a bachelor's degree.
    (2) A teacher will be considered to meet the standard in paragraph 
(c)(1)(i) of this section if that teacher is participating in an 
alternate route to special education certification program under 
which--
    (i) The teacher--
    (A) Receives high-quality professional development that is 
sustained, intensive, and classroom-focused in order to have a positive 
and lasting impact on classroom instruction, before and while teaching;
    (B) Participates in a program of intensive supervision that 
consists of structured guidance and regular ongoing support for 
teachers or a teacher mentoring program;
    (C) Assumes functions as a teacher only for a specified period of 
time not to exceed three years; and
    (D) Demonstrates satisfactory progress toward full certification as 
prescribed by the State; and
    (ii) The State ensures, through its certification and licensure 
process, that the provisions in paragraph (c)(2)(i) of this section are 
met.
* * * * *

0
15. Section 300.157 is amended:
0
A. By revising paragraph (a)(2).
0
B. In paragraph (b) by removing ``including measurable annual 
objectives for progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)'' and adding in its place ``including measurements 
of interim progress for children with disabilities under section 
1111(c)(4)(A)(i)''.
    The revision reads as follows:


Sec.  300.157  Performance goals and indicators.

* * * * *
    (a) * * *
    (2) Are the same as the State's long-term goals and measurements of 
interim progress for children with disabilities under section 
1111(c)(4)(A)(i) of the ESEA.
* * * * *

0
16. Section 300.160 is amended by revising paragraphs (c) through (f) 
to read as follows:


Sec.  300.160  Participation in assessments.

* * * * *
    (c) Alternate assessments aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. (1) If a State has adopted alternate academic achievement 
standards for children with disabilities who are students with the most 
significant cognitive disabilities as permitted in section 
1111(b)(1)(E) of the ESEA, the State (or, in the case of a district-
wide assessment, an LEA) must develop and implement alternate 
assessments and guidelines for the participation in alternate 
assessments of those children with disabilities who cannot participate 
in regular assessments, even with accommodations, as indicated in their 
respective IEPs, as provided in paragraph (a) of this section.
    (2) For assessing the academic progress of children with 
disabilities who are students with the most significant cognitive 
disabilities under title I of the ESEA, the alternate assessments and 
guidelines in paragraph (c)(1) of this section must--
    (i) Be aligned with the challenging State academic content 
standards under section 1111(b)(1) of the ESEA and alternate academic 
achievement standards under section 1111(b)(1)(E) of the ESEA; and
    (ii) Measure the achievement of children with disabilities who are 
students with the most significant cognitive disabilities against those 
standards.
    (3) Consistent with section 1111(b)(1)(E)(ii) of the ESEA and 34 
CFR 200.6(c)(6), a State may not adopt modified academic achievement 
standards or any other alternate academic achievement standards that do 
not meet the requirements in section 1111(b)(1)(E) of the ESEA for any 
children with disabilities under section 602(3) of the IDEA.
    (d) Explanation to IEP Teams. A State (or in the case of a 
district-wide assessment, an LEA) must--
    (1) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of State and local policies on a student's education 
resulting from taking an alternate assessment aligned with alternate 
academic achievement standards, such as how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma; and
    (2) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment aligned with alternate 
academic achievement standards from attempting to complete the 
requirements for a regular high school diploma.
    (e) Inform parents. A State (or in the case of a district-wide 
assessment, an LEA) must ensure that parents of students selected to be 
assessed using an alternate assessment aligned with alternate academic 
achievement standards under the State's guidelines in paragraph (c)(1) 
of this section are informed, consistent with 34 CFR 200.2(e), that 
their child's achievement will be measured based on alternate academic 
achievement standards, and of how participation in such assessments may 
delay or otherwise affect the student from completing the requirements 
for a regular high school diploma.
    (f) Reports. An SEA (or, in the case of a district-wide assessment, 
an LEA) must make available to the public, and report to the public 
with the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following:
    (1) The number of children with disabilities participating in 
regular assessments, and the number of those children who were provided 
accommodations (that did not result in an invalid score) in order to 
participate in those assessments.
    (2) The number of children with disabilities, if any, participating 
in alternate assessments based on grade-level academic achievement 
standards in school years prior to 2017-2018.
    (3) The number of children with disabilities, if any, participating 
in alternate assessments aligned with modified academic achievement 
standards in school years prior to 2016-2017.
    (4) The number of children with disabilities who are students with 
the most significant cognitive disabilities participating in alternate 
assessments aligned with alternate academic achievement standards.
    (5) Compared with the achievement of all children, including 
children with disabilities, the performance results of children with 
disabilities on regular

[[Page 29761]]

assessments, alternate assessments based on grade-level academic 
achievement standards (prior to 2017-2018), alternate assessments based 
on modified academic achievement standards (prior to 2016-2017), and 
alternate assessments aligned with alternate academic achievement 
standards if--
    (i) The number of children participating in those assessments is 
sufficient to yield statistically reliable information; and
    (ii) Reporting that information will not reveal personally 
identifiable information about an individual student on those 
assessments.
* * * * *


Sec.  300.207  [Amended]

0
17. Section 300.207 is amended by removing ``section 2122 of the ESEA'' 
and adding in its place ``section 2102(b) of the ESEA''.


Sec.  300.306  [Amended]

0
18. Section 300.306 is amended in paragraph (b)(1)(i) by adding the 
phrase ``as such section was in effect on the day before the date of 
enactment of the Every Student Succeeds Act (December 9, 2015)'' after 
``ESEA''.


Sec.  300.324  [Amended]

0
19. Section 300.324 is amended in paragraph (d)(2)(ii) by removing 
``300.112'' and adding in its place ``300.114''.

0
20. Section 300.704 is amended:
0
A. In paragraph (b)(4)(x) by removing ``6111 of the ESEA'' and adding 
in its place ``1201 of the ESEA''.
0
B. Revising paragraph (b)(4)(xi).
0
C. In paragraph (c)(3)(i)(A)(2) by removing ``section 9101'' and adding 
in its place ``section 8101''.
    The revision reads as follows:


Sec.  300.704  State-level activities.

* * * * *
    (b) * * *
    (4) * * *
    (xi) To provide technical assistance to schools and LEAs, and 
direct services, including direct student services described in section 
1003A(c)(3) of the ESEA, to children with disabilities, in schools or 
LEAs implementing comprehensive support and improvement activities or 
targeted support and improvement activities under section 1111(d) of 
the ESEA on the basis of consistent underperformance of the 
disaggregated subgroup of children with disabilities, including 
providing professional development to special and regular education 
teachers who teach children with disabilities, based on scientifically 
based research to improve educational instruction, in order to improve 
academic achievement based on the challenging academic standards 
described in section 1111(b)(1) of the ESEA.
* * * * *

PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH 
DISABILITIES

0
21. The authority citation for part 303 continues to read as follows:

    Authority:  20 U.S.C. 1431 through 1444, unless otherwise noted.


Sec.  303.32  [Removed and Reserved]

0
22. Remove and reserve Sec.  303.32.

[FR Doc. 2017-13801 Filed 6-29-17; 8:45 am]
 BILLING CODE 4000-01-P