20 U.S.C. § 1406 — Requirements for prescribing regulations
submitted 22 years ago by Pub. L. 91-230 to r/title-20-EDUCATION · 480 words · no verdicts yet
The Secretary may issue regulations under this chapter only as needed to ensure compliance with its specific requirements. Regulations and policy statements may not weaken statutory protections or evade required procedures, and the Secretary must provide public comments and explain written guidance.
(a) The Secretary* may issue regulations under this chapter only as far as they are necessary to ensure compliance with the chapter’s specific requirements.
(b) The Secretary may not implement or finalize a regulation that (1) violates or contradicts this chapter, or (2) procedurally or substantively reduces protections for children with disabilities that were embodied in regulations effective July 20, 1983. This especially includes protections about parental consent for initial evaluation or placement in special education*, the least restrictive environment, related services*, deadlines, evaluation personnel at individualized education program* meetings, and personnel qualifications. The exception is a regulation that reflects Congress’s clear and unequivocal intent in legislation.
(c) For a proposed regulation under subchapter II or III where law otherwise requires public comment, the Secretary must provide at least 75 days for public comment.
(d) The Secretary may not issue a policy letter or other statement, including one about a nationally significant issue, that (1) violates or contradicts this chapter, or (2) establishes a rule needed for compliance with or eligibility under this chapter without following 5 U.S.C. § 553.
(e) A written response under (d) about a policy, question, or interpretation under subchapter II must say that (1) it is informal guidance and is not legally binding; (2) when required, it was issued consistently with 5 U.S.C. § 553; and (3) it is the Department of Education’s interpretation of the applicable statutory or regulatory requirements for the specific facts presented.
(f) (1) Every quarter, the Secretary must publish in the Federal Register, and widely distribute through additional forms of communication, a list of correspondence the Department of Education sent to individuals during the previous quarter that describes the Department’s interpretations of this chapter or its regulations. (2) For each listed item, the Secretary must identify its topic and include other summary information the Secretary considers appropriate. The Secretary must ensure that, when applicable, each item complies with 5 U.S.C. § 553.
In carrying out the provisions of this chapter, the Secretary* shall issue regulations under this chapter only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this chapter.
The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that—
violates or contradicts any provision of this chapter; or
procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education*, least restrictive environment, related services*, timelines, attendance of evaluation personnel at individualized education program* meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.
The Secretary shall provide a public comment period of not less than 75 days on any regulation proposed under subchapter II or subchapter III on which an opportunity for public comment is otherwise required by law.
The Secretary may not issue policy letters or other statements (including letters or statements regarding issues of national significance) that—
violate or contradict any provision of this chapter; or
establish a rule that is required for compliance with, and eligibility under, this chapter without following the requirements of section 553 of title 5.
Any written response by the Secretary under subsection (d) regarding a policy, question, or interpretation under subchapter II shall include an explanation in the written response that—
such response is provided as informal guidance and is not legally binding;
when required, such response is issued in compliance with the requirements of section 553 of title 5; and
such response represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented.
The Secretary shall, on a quarterly basis, publish in the Federal Register, and widely disseminate to interested entities through various additional forms of communication, a list of correspondence from the Department of Education received by individuals during the previous quarter that describes the interpretations of the Department of Education of this chapter or the regulations implemented pursuant to this chapter.
For each item of correspondence published in a list under paragraph (1), the Secretary shall—
identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate; and
ensure that all such correspondence is issued, where applicable, in compliance with the requirements of section 553 of title 5.
Source credit: (Pub. L. 91–230, title VI, § 607, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2659.)
- 2004Enacted · Pub. L. 91-230 · 118 Stat. 2659
A history note hasn’t been published yet. The record shows enactment by Pub. L. 91-230 on 2004-12-03.
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