(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.
(Approved by the Office of Management and Budget under control number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(1)(A))
Notes of Decisions
Dallas Indep. Sch. Dist. v. Woody Ex Rel. K.W., 865 F.3d 303 (5th Cir. 2017).
· cites it 2× “The court relied on several related sections of IDEA and the regulations to conclude that the District had to provide temporary services: Yet when it rejected LAUSD’s IEP, it was obligated to make an offer of FAPE to Kelsey on a temporary basis while it evaluated her, because…”
Lisa M. v. Leander Indep. Sch Dist, 924 F.3d 205 (5th Cir. 2019).
“…even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade." 34 C.F.R. § 300.101 (c)(1).”
Dl v. Dist. of Columbia, 194 F. Supp. 3d 30 (D.D.C. 2016).
· cites it 3× “”); 34 C.F.R. § 300.101 (b) (“(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…”
Maschek v. City of Chicago, 2015 IL App (1st) 150520 (Ill. App. Ct. 2016).
· cites it 2× “” 34 C.F.R. § 300.101 (a) (2014). “Each State must ensure that FAPE is available to any individual child with a disability who needs special education ***.”
Dallas Indep. Sch. Dist. v. Woody ex rel. K.W., 178 F. Supp. 3d 443 (N.D. Tex. 2016).
· cites it 7× “34 C.F.R. § 300.101 (a). 91. The hearing officer concluded that DISD “had the legal obligation to make FAPE available to [Kelsey].”
R.V. v. Rivera, 220 F. Supp. 3d 588 (E.D. Pa. 2016).
“§§ 1412 (a)(6) (SEA responsible for assuring that IDEA procedural safeguards in Section 1415 are met), 1412(a)(ll) (SEA responsible for making sure IDEA requirements are met), 1413(h) (federal grant conditioned on SEA satisfaction that all children with disabilities receive a…”
Dep't of Educ. v. Leo W. ex rel. Veronica W., 226 F. Supp. 3d 1081 (D. Haw. 2016).
“Hawaii’s regulations mirror the language in the IDEA regarding the IDEA’S purposes, the guarantee of a FAPE, and the requirement of parent participation.”
Doe Ex Rel. Doe v. Hampden-Wilbraham Reg'l Sch. Dist., 715 F. Supp. 2d 185 (D. Mass. 2010).
· cites it 2× “STANDARD OF REVIEW Under the IDEA, states that receive federal funding to provide special education and related services to children with disabilities must provide a free and appropriate public education (“FAPE”) to all children with disabilities residing in the state between…”
— 34 C.F.R. § 300.101(c)(1) — 1 case
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