§1406 Requirements for Prescribing Regulations

Summary

Require the Secretary to make rules only when needed to make sure the law’s specific requirements are followed. The Secretary must not put in force any rule that conflicts with the law or that reduces protections for children with disabilities compared to rules in effect on July 20, 1983—especially rules about parental consent for initial testing or placement, least restrictive environment, related services, timelines, who must attend IEP meetings, and staff qualifications—unless a later law clearly says Congress intended the change. The Secretary must give at least 75 days for public comment on proposed rules under subchapter II or III. The Secretary may not issue policy letters that conflict with the law or that create binding rules without following section 553 of title 5. Any written guidance about subchapter II must say it is informal and not legally binding, note when section 553 was followed, and explain it is the Department’s interpretation for the facts given. Every quarter the Secretary must publish in the Federal Register and widely share a list of interpretive correspondence, identify each topic, and make sure such correspondence follows section 553 when needed.