PRIA, Government Policy, Made Personal

Summary

The Secretary must only create rules that are needed to make sure the law is followed. The Secretary may not put out any rule that goes against the law or that weakens the protections for children with disabilities compared to the rules that were in effect on July 20, 1983. That includes protections like parental consent for initial evaluation or placement, least restrictive environment, related services, timelines, attendance of evaluation staff at IEP meetings, and staff qualifications, unless Congress clearly said otherwise. The Secretary must give at least 75 days for public comment on any proposed rule under subchapter II or subchapter III when comment is required by law. The Secretary may not issue policy letters or public statements that conflict with the law or that set binding rules without following the requirements of section 553 of title 5 (the formal rulemaking process). Any written informal guidance about subchapter II must say it is not legally binding, note when section 553 was followed, and explain that it is the Department’s interpretation based on the specific facts. Every quarter the Secretary must publish and widely share a list in the Federal Register of correspondence that explains the Department’s interpretations, include a short topic summary for each item, and ensure such correspondence follows section 553 when required.

Title 20, §1406

Education, Source: USLM XML via OLRC

(a)In general

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.

(b)Protections provided to children

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that—

(1)violates or contradicts any provision of this chapter; or

(2)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.

(c)Public comment period

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.

(d)Policy letters and statements

The Secretary may not issue policy letters or other statements (including letters or statements regarding issues of national significance) that—

(1)violate or contradict any provision of this chapter; or

(2)establish a rule that is required for compliance with, and eligibility under, this chapter without following the requirements of section 553 of title 5.

(e)Explanation and assurances

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—

(1)such response is provided as informal guidance and is not legally binding;

(2)when required, such response is issued in compliance with the requirements of section 553 of title 5; and

(3)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.

(f)Correspondence from Department of Education describing interpretations of this chapter

(1)In general

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.

(2)Additional information

For each item of correspondence published in a list under paragraph (1), the Secretary shall—

(A)identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate; and

(B)ensure that all such correspondence is issued, where applicable, in compliance with the requirements of section 553 of title 5.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

A prior section 1406, Pub. L. 91–230, title VI, § 607, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 47, related to requirements for prescribing

Regulations

, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. Another section 1406, Pub. L. 91–230, title VI, § 607, as added Pub. L. 94–142, § 6(a), Nov. 29, 1975, 89 Stat. 795; amended Pub. L. 98–199, §§ 3(b), 5, Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99–457, title IV, § 401, Oct. 8, 1986, 100 Stat. 1172; Pub. L. 100–630, title I, § 101(c), Nov. 7, 1988, 102 Stat. 3290, related to grants for removal of architectural barriers, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105–17.

§1406 Requirements for Prescribing Regulations