Video Summary: Code of Federal Regulations for Free and Appropriate Public Education (FAPE)

This video goes over the Code of Federal Regulations (CFR) under title 34 of the Individuals with Disabilities Education Act (IDEA) regarding your child’s right to a Free Appropriate Public Education (FAPE). As with all of our sections covering CFR, we will take direct excerpts from relevant sections for your benefit, but we will also offer digest versions of these sections for the average reader. [Note: the symbol “§”stands for section, while “§§” stands for sections.]

§ 300.17 Free appropriate public education.

Free appropriate public education or FAPE means special education and related services that—

(a) Are provided at public expense, under public supervision and direction, and without charge;

(b) Meet the standards of the SEA, including the requirements of this part;

(c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324.

This section defines what a FAPE actually is. A FAPE is provided at no cost to you (the parent or guardian) at the expense of the state (Free), meets the standards of the State Education Agency (SEA) (Appropriate), includes an appropriate school setting under the jurisdiction of the State (Public), and is provided through an Individualized Education Program (IEP) made specifically for your child (Education).

§300.101 Free appropriate public education (FAPE).

(a) General. A free appropriate public education must be available to all children residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in § 300.530(d).

(b) FAPE for children beginning at age 3. (1) Each State must ensure that—

(i) The obligation to make FAPE available to each eligible child residing in the State begins no later than the child’s third birthday; and

(ii) An IEP or an IFSP is in effect for the child by that date, in accordance with § 300.323(b).

(2) If a child’s third birthday occurs during the summer, the child’s IEP Team shall determine the date when services under the IEP or IFSP will begin.

(c) Children advancing from grade to grade. (1) Each State must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.

(2) The determination that a child described in paragraph (a) of this section is eligible under this part, must be made on an individual basis by the group responsible within the child’s LEA for making eligibility determinations.

FAPE must be available to any child between the ages of three and 21, even children with disabilities who have been suspended or expelled. For children under three years old, the State does provide an Individualized Family Service Plan (IFSP), which is not within the scope of our guide. FAPE is also available to children in all grades, even if they do not fail their grade. This part of the CFR was a response to schools who asked why a child who was doing well needed special education. Congress determined that whether a child receives special education is not limited to their performance — rather, special education services should be provided to all children whose disability affects their ability to learn.

§ 300.102 Limitation—exception to FAPE for certain ages.

(a) General. The obligation to make FAPE available to all children with disabilities does not apply with respect to the following:

(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children of those ages.

(2)(i) Children aged 18 through 21 to the extent that State law does not require that special education and related services under Part B of the Act be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility—

(A) Were not actually identified as being a child with a disability under § 300.8; and

                                    (B) Did not have an IEP under Part B of the Act.

(ii) The exception in paragraph (a)(2)(i) of this section does not apply to children with disabilities, aged 18 through 21, who—

(A) Had been identified as a child with a disability under § 300.8 and had received services in accordance with an IEP, but who left school prior to their incarceration; or

(B) Did not have an IEP in their last educational setting, but who had actually been identified as a child with a disability under § 300.8.

(3)(i) Children with disabilities who have graduated from high school with a regular high school diploma.

(ii) The exception in paragraph (a)(3)(i) of this section does not apply to children who have graduated from high school but have not been awarded a regular high school diploma.

(iii) Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with § 300.503.

(iv) As used in paragraphs (a)(3)(i) through (a)(3)(iii) of this section, the term regular high school diploma does not include an alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED).

(4) Children with disabilities who are eligible under subpart H of this part, but who receive early intervention services under Part C of the Act.

This section cites a few limitations of FAPE. In some states, children between the ages of three and five, as well as 19 through 21, may not be entitled to a FAPE because it would be inconsistent with state law, though this is not the case in Nebraska. Children who are incarcerated or have graduated from high school are also not entitled to FAPE services. Graduation, however, is a bit complicated.  If your child has a regular high school diploma, then they are no longer eligible for FAPE.  But if they did not receive a regular high school diploma during graduation, they may still be eligible. Your child can still be a part of the regular graduation ceremony, not receive a regular diploma and still receive services.

§ 300.138 Equitable services provided.

(a) General. (1) The services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements of § 300.18.

(2) Parentally-placed private school children with disabilities may receive a different amount of services than children with disabilities in public schools.

(b) Services provided in accordance with a services plan. (1) Each parentally-placed private school child with a disability who has been designated to receive services under § 300.132 must have a services plan that describes the specific special education and related services that the LEA will provide to the child in light of the services that the LEA has determined, through the process described in §§ 300.134 and 300.137, it will make available to parentally-placed private school children with disabilities.

(2) The services plan must, to the extent appropriate—

(i) Meet the requirements of § 300.320, or for a child ages three through five, meet the requirements of § 300.323(b) with respect to the services provided; and

(ii) Be developed, reviewed, and revised consistent with §§ 300.321 through 300.324.

(c) Provision of equitable services. (1) The provision of services pursuant to this section and §§ 300.139 through 300.143 must be provided:

                        (i) By employees of a public agency; or

(ii) Through contract by the public agency with an individual, association, agency, organization, or other entity.

(2) Special education and related services provided to parentally-placed private school children with disabilities, including materials and equipment, must be secular, neutral, and nonideological.

If your child is in a private school, then anyone who provides special education services to your child should be as qualified as someone who would provide your child services at a public school. They can receive different and more services (since public schools are allotted a certain budget that private schools are not), but the people providing them must still be qualified. However, any services given to your child must be secular, neutral, and nonideological (that is, not enforcing any one kind of ideology on your child).