tained or regularly used shall be occupied by authorized personnel, or access to the student records shall be restricted by their storage in locked metal file cabinets or a locked room.

(3) During nonworking hours, access to the student records shall be restricted by their storage in locked metal file cabinets or a locked room.

(4) Where a locked room is the method of security provided for a system, the educational institution responsible for the system shall, no later than December 31, 1978, supplement that security by:

(i) Providing lockable file cabinets or containers for the student records, or

(ii) Changing the lock or locks for the room so that they may not be opened with a master key. For the purpose of this paragraph, a master is a key which may be used to open rooms other than the room containing student records, unless those rooms are used by officials or employees authorized to have access to the student records.

(c) When maintained in computerized form, student records shall be maintained, at a minimum, subject to safeguards based on those recommended in the National Bureau of Standards' booklet, "Computer Security Guidelines for Implementing the Privacy Act of 1974" (May 30, 1975), and any supplements to it, which are adequate and appropriate to assure the integrity of records in the system.

(d) The education institution responsible for a system of student records shall be responsible for assuring that specific procedures are developed to assure that the student records in the system for which it is responsible are maintained with security meeting the regulations in this section. These procedures shall be in writing and shall be

posted or otherwise periodically brought to the attention of employees working with the student records contained in the system.

$43.23 Conduct of employees.

(a) Employees whose duties require handling of student records shall, at all times, take care to protect the integrity, security, and confidentiality of these records.

(b) No employee of the educational institution may disclose student records unless disclosure is permitted under §43.14 or made to the parent of the student or eligible student to whom the record pertains.

(c) No employee of the educational institution may alter or destroy a student record, unless:

(1) Alteration or destruction is properly undertaken in the course of the employee's regular duties, or

(2) Alteration or destruction is required by an authorized administrative decision or the decision of a court of competent jurisdiction.

(d) The educational institution responsible for a system of student records shall be responsible for assuring that employees with access to the system are made aware of the requirements of this section.

45.77 Use of available funds.

45.78 Children for whom the Division of Social Services has accepted financial responsibility.

45.79 Cooperative agreements.

45.80 Bureau of Indian Affairs Advisory Committee for Exceptional Children.

AUTHORITY: 5 U.S.C. 301; 25 U.S.C. 2 and 9, 20 U.S.C. 1411-1420.

SOURCE: 50 FR 34102, Aug. 23, 1985, unless otherwise noted.

Subpart A-General

§ 45.1 General responsibility.

(a) Schools are responsible for providing a free appropriate education to all handicapped Indian children enrolled in a school operated or funded by the Bureau of Indian Affairs (BIA) who are between the ages of five (5) and twenty-one (21). Children whose fifth birthday occurs on or before December 31 or whose twenty-second birthday occurs during the course of the regular school year shall be regarded as eligible children for the entire school year.

(b) The BIA has the responsibility to ensure the provision of a free appropriate education until a handicapped child successfully completes a secondary school program, voluntarily withdraws or attains the age of twenty-two (22) years, regardless of whether the handicapped child is provided special education and related services:

(1) By a school directly;

(2) Through a contract entered into by the school with a public or private agency;

(3) By an educational cooperative of which the school is a member; or

(4) By an approved public or non-public school program (following placement or referral).

§ 45.2 Provision of early childhood special education programs and services.

(a) Children from birth to four (4) years of age, who are not enrolled in BIA funded or operated schools, may receive special education services through coordination with Head Start and other existing Early Childhood Special Education programs (ECSE).

(b) Early Childhood Special Education (ECSE) means specially designed special education and related services, to meet the unique needs of a

(a) Agency means an organizational unit of the Bureau which provides direct services to the governing body or bodies of one or more specified Indian tribes. The term includes Bureau Area Education offices only with respect to off-reservation boarding schools, cooperative schools, and tribally operated contract schools located in the Area for which the Director has not designated an Agency.

(b) Agency Superintendent for Education means the Bureau official in charge of Bureau education programs and functions in an Agency, and who reports to the Director, Office of Indian Education Programs (OIEP).

(c) Approved public or non-public school means:

(1) Either a public school operated by an intermediate educational unit, a local education agency or other public agency (as those terms are defined in 34 CFR 300.7, 300.8, 300.11) of a State which receives funds under part B of the Education of the Handicapped Act, as amended (20 U.S.C. 1411-1420) pursuant to a current annual program plan approved by the Secretary of Education;

or

(2) A non-public school located in a State determined by the State educational agency to be in full compliance with all applicable State and Federal special education requirements.

(d) Area Education Program Administrator means the Bureau official in charge of Bureau Education programs

and functions in a Bureau Area office and who reports to the Director.

(e) Assistant Secretary means the Assistant Secretary-Indian Affairs, Department of the Interior, or his/her designee.

(f) Boarding school means a Bureau school offering a residential center and support services as well as an academic program.

(g) Bureau means the Bureau of Indian Affairs of the Department of the Interior.

(h) Child identification means the identification, location, and individual evaluation of handicapped children.

(i) Cooperative agreements means an agreement between schools operated or funded by the BIA and state and local education agencies for the provision of special education and related services to handicapped children enrolled or eligible to be enrolled in the BIA school.

(j) Counseling services means services provided by qualified social workers (with training as counselors), psychologists, guidance counselors, or other qualified personnel.

(k) Days mean consecutive calendar days.

(1) Director means the Director, Office of Indian Education Programs.

(m) The Division means the Branch of Exceptional Education, Office of Indian Education Programs, Bureau of Indian Affairs, Department of the Interior.

(n) EHA means part B of the Education of the Handicapped Act as amended by the Education for All Handicapped Children Act of 1975 (Pub. L. 94-142), 20 U.S.C. 1411-1420, and the regulations issued by the U.S. Department of Education, 34 CFR 300.1.

(0) Handicapped child means a child evaluated in accordance with the requirements of this Part who is determined to be mentally retarded, hard of hearing, deaf, deaf-blind, speech impaired, visually handicapped, seriously emotionally disturbed, multi-handicapped, orthopedically impaired, other health impaired or as having specific learning disabilities and who because of these impairments needs special education and related services. The terms used in this definition are defined as follows:

(1) Deaf means a hearing impairment which is so severe that the child is im

paired in processing linguistic information through hearing, with or without amplification, which adversely affects educational performance.

(2) Deaf-blind means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational problems that they cannot be accommodated in special education programs solely for deaf or blind children.

(3) Hard of hearing means a hearing impairment, whether permanent or fluctuating, which adversely affects a child's educational performance but which is not included under the definition of deaf in this section.

(4) Mentally retarded means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, which adversely affects a child's educational performance.

(5) Multi-handicapped means concomitant impairments (such as mentally retarded-blind, mentally retarded-orthopedically impaired, etc., but not including speech impaired), the combination of which causes such severe educational problems that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deafblind children.

(6) Orthopedically impaired means a severe orthopedic impairment which adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns which cause contractures).

(7) Other health impaired means (i) having an autistic condition which is manifested by severe communication and other developmental and educational problems; or (ii) having limited strength, vitality or alertness, due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or dia

betes, which adversely affects a child's educational performance.

(8) Seriously emotionally disturbed is defined as follows:

(i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance including:

(A) An inability to learn which cannot be explained by intellectual, sensory, or health factors;

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(C) Inappropriate types of behavior or feelings under normal circumstances;

(D) A general pervasive mood of unhappiness or depression; or

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(ii) The term includes children who are schizophrenic. The term does not include children who are socially maladjusted, unless it is determined that they are seriously emotionally disturbed.

(9) Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, or mental retardation, or emotional disturbance, or of environmental, cultural, or economic disadvantage.

(10) Speech impaired means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, which adversely affects a child's educational performance.

(11) Visually handicapped means a visual impairment which even with correction, adversely affects a child's educational performance. The term includes both partially seeing and blind children.

(p) Independent education evaluation means an evaluation conducted by a qualified examiner who is not employed by the Agency responsible for the education of the child in question.

(q) Individualized Education Program (IEP) means the written individualized education for a handicapped child which is consistent with all the requirements of §§ 45.31-45.38 of this part.

(r) Indian means a person who is a member of an Indian tribe.

(s) Indian Tribe means any Indian Tribe, Band, Nation, Rancheria, Pueblo, Colony or Community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is recognized by the Secretary as eligible for the special programs and services provided through the Bureau to Indians because of their status as Indians.

(t) Individual Intelligent Quotient (IQ) test means any individual test, device, or measure which purports to assess a child's current mental abilities, capacity, intellectual functioning, intellectual development or aptitude, but does not include achievement test or adaptive behavior scales.

(u) In-service training means training other than that received by an individual in a full-time program which leads to a degree.

(v) Least Restrictive Environment (LRE) means that to the maximum extent appropriate, handicapped children in public or private institutions or other care facilities, are educated with children who are not handicapped; and that special classes, separate schooling or other removal of handicapped children from the regular environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(w) Native language when used with reference to a person of limited English-speaking ability, means the language normally used by that person, or in the case of a child, the language normally used by the parents of the child. In all direct contact with a child (including evaluation of the child), com

munication would be in the language normally used by the child and not that of the parents, if there is a difference between the two.

(x) Parent means a parent, a guardian, or person acting as a parent of a child, or a surrogate parent who has been appointed in accordance with §45.56. The term parent is defined to include persons acting in the place of a parent, such as a grandmother or stepparent with whom a child lives, as well as persons who are legally responsible for a child's welfare.

(y) Parental consent means: (1) that the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; (2) the parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) which will be released and to whom; and (3) the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

(z) Parent counseling and training means assisting parents in understanding the special needs of their child and providing parents with information about child development.

(aa) Physical education means the development of physical and motor fitness; fundamental motor skills and patterns; skills in aquatics, dance, individual, and group games and sports. The term includes special physical education, adaptive physical education, movement education and motor development.

(bb) Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in