§1406 Requirements for prescribing regulations

Summary

The Secretary must only make rules that are needed to make sure the law is followed. The Secretary cannot put out rules that conflict with the law or that weaken protections for children with disabilities compared to the rules that were in place on July 20, 1983 — especially rules about parental consent for first evaluations or placements, least restrictive environment, related services, timelines, evaluator attendance at IEP meetings, and staff qualifications — unless Congress clearly and plainly intended the change. For proposed regulations under subchapter II or subchapter III that require public comment, the Secretary must allow at least 75 days for people to comment. The Secretary must not issue policy letters or statements that conflict with the law or that create binding rules without following the rulemaking steps in section 553 of title 5. Any written response about subchapter II must say it is informal guidance and not legally binding, note when it follows section 553 of title 5, and make clear it is the Department’s interpretation for the specific facts presented. Every quarter the Secretary must publish in the Federal Register and widely share a list of correspondence sent to individuals the previous quarter that explains Department interpretations, identify each topic, and ensure such correspondence follows section 553 of title 5 when required.