I. Statutory Overview of Educational Disability Law
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Written by Theresa Sidebotham on March 15, 2012 at 1:33 a.m.
Many children have special needs that affect their education. This is especially true of children under the jurisdiction of the juvenile court. Sometimes the educational system works to meet these needs. Often it does not. A parent, attorney, or other advocate needs to know what the law pertaining to special education provides and how the system should work for children with special needs, be able to identify where things go wrong, and use the legal process to fix it.
A number of federal and state statutes apply to children who have disabilities. The following sections discuss the statutes in a limited way, giving a brief overview of provisions that apply to children who have disabilities, and who are also under the jurisdiction of the juvenile court.
A. Disability Under the Individuals with Disabilities Education Improvement Act (IDEA)
The Individuals with Disabilities Education Improvement Act of 2004 (IDEA) is by far the most important and detailed statute governing access to education for children with special needs. Certain provisions of IDEA, along with federal regulations and Colorado law, are particularly applicable to children in the juvenile justice system or the child welfare system, and to children involved with school attendance (truancy) issues. The Code of Federal Regulations interprets IDEA. The Colorado Exceptional Children’s Education Act (ECEA) governs the implementation of IDEA in Colorado.1 The Rules for the Administration of the ECEA interpret the ECEA.2 IDEA and all the accompanying rules are reauthorized or revised periodically, so check appropriate resources for updates.
This section discusses the purpose of IDEA and definition of disability. IDEA sets forth the process for identifying a child with special needs, providing special education, and resolving any disputes that occur along the way. IDEA is driven by the concept of parent advocacy, and without parent advocacy, the system may not be effective. Other provisions, including how to make sure a parent advocate is available, are discussed in detail in the pertinent topic sections.
1. Purpose of IDEA
The purpose of IDEA is:
to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living . . . [and] to ensure that the rights of children with disabilities and the parents of such children are protected . . .3
Special education is defined in IDEA as:
specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including—
(A)instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education.4
2. Definitions of Disability under IDEA and Supporting Rules
A “child with a disability” under IDEA is a child with one of the following:
- Mental retardation;
- Hearing impairments (including deafness);
- Speech or language impairments;
- Visual impairments (including blindness);
- Serious emotional disturbance (referred to simply as “emotional disturbance”);
- Orthopedic impairments;
- Traumatic brain injury;
- Other health impairments; and
- Specific learning disabilities.5
To qualify for special education services, a child must have one or more of these disabilities, and also, because of the disability, need special education and related services.6
A specific learning disability “means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.”7 Included disorders are “perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”8 The disabilities are defined more extensively in 34 C.F.R. § 300.8.
An emotional disturbance is a "condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s education performance":
- An inability to learn that cannot be explained by intellectual, sensory, or health factors.
- An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
- Inappropriate types of behavior or feelings under normal circumstances.
- A general pervasive mood of unhappiness or depression.
- A tendency to develop physical symptoms or fears associated with personal or school problems.
- Emotional disturbance includes schizophrenia. The term does not apply to children who are emotionally maladjusted, unless it is determined that they have an emotional disturbance. . . .9
Disability is defined in greater detail in the Rules for the Administration of the ECEA.10 For instance, a child with a significant identifiable emotional disability “shall have social or emotional functioning which prevents the child from receiving reasonable educational benefit from regular education.”11 Emotional or social functioning is then described in great detail with respect to symptoms or behaviors.12
The definition of a “child with a disability,” for a child aged three through nine, at the discretion of the state and the local educational agency, may include a child experiencing developmental delays in one or more of the following areas:
- Physical development;
- Cognitive development;
- Communication development;
- Social or emotional development; and
- Adaptive development;13
and who also, “by reason thereof, needs special education and related services.”14
Note that, if a child has a disability but does not need special education services, the child is not eligible for protection under IDEA but may be eligible for protection under Section 504 of the Rehabilitation Act.15
B. Disability Under Section 504 of the Rehabilitation Act
Section 504 provides broader protection than IDEA, in the sense that it covers more people and extends into adulthood. However, the protections are not as detailed and 504 funding is minimal. The key portion of Section 504 of the Rehabilitation Act of 1973 states:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .16
Section 504 is a broad civil rights law.17 However, it is important to note that it covers only employers, programs, agencies, and facilities that receive federal funding.18 This, of course, would include any public school. Surprisingly, it includes a number of private schools.19
“To be eligible for protection under section 504, an individual must have a physical or mental impairment that substantially limits at least one major life activity,” such as walking, seeing, hearing, breathing, reading, caring for oneself, and a number of others.20 If an individual has a record of having such an impairment, or is regarded as having such an impairment, he or she meets the definition.21
Therefore, a child who is disabled under IDEA is also protected under Section 504. If a child has an impairment that substantially limits one or more major life activities, but does not need special education services, the child is not protected under IDEA but is protected under Section 504.22
“Substantially limits” is defined by the school district.23 Although Section 504 does not define “substantially limits,” the regulations implementing the Americans with Disabilities Act of 1990 offer the following definitions. A major life activity is substantially limited when a person is:
Unable to perform a major life activity that the average person in the general population can perform.24
Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.25
Complaints under Section 504 are filed with the Office of Civil Rights, U.S. Department of Education, at the regional office in Denver.[xxvi]
C. Disability Under the Americans With Disabilities Act of 1990 (ADA)
The ADA also protects qualified persons with disabilities, but reaches beyond entities that receive federal funding.27 Title II of the ADA prohibits discrimination in access to governmental services, and, therefore, covers school districts and school boards.28 Title III of the ADA applies to privately operated public accommodations, such as private schools. However, rights under the ADA are not as extensive as those under IDEA.29
Complaints under the ADA also are filed with the Office of Civil Rights, U.S. Department of Education.30
D. No Child Left Behind (NCLB) Overview
No Child Left Behind (NCLB), codified in Title 20 and Title 25 of the United States Code, is a lengthy, complicated Act. The following is an abbreviated discussion of certain provisions that impact children and youth, particularly those who have disabilities and special needs, in the juvenile justice system or child welfare system, or who are involved with school attendance/truancy issues.
1. Statement of Purpose in Title I
Title I of NCLB is “Improving the Academic Achievement of the Disadvantaged.”31 The Statement of Purpose provides, in part, that the Act should “ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education.”32 The purpose is to be accomplished, in part, by:
meeting the educational needs of low-achieving children in our Nation’s highest-poverty schools, limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance . . .33
NCLB defines the meaning of reading, essential components of reading instruction, diagnostic reading assessments, and scientifically based reading research.34
2. Requirements for Schools
Schools that accept Title 1 funds are required to achieve “Adequate Yearly Progress,” which is tested objectively.35 Measurable objectives must include the achievement of economically disadvantaged students, students with disabilities, and students with limited English proficiency.36 The number and percentage of schools identified for school improvement and for how long the schools have been so identified must be released in an annual local educational agency report card.37
Local educational agency plans for serving students with limited English proficiency, disabilities, or who are neglected or delinquent must be filed with the state educational agency.38 They must describe educational services for neglected or delinquent children, both those living in local institutions and in community day school programs.39 Funds must be reserved to serve both homeless children and neglected or delinquent children.40
Schools may receive Title 1 funds to provide targeted assistance to children identified as failing or at risk of failing, including children who are economically disadvantaged, children with disabilities, children who have limited English proficiency, neglected or delinquent children, and homeless children.41 Children with truancy issues may fall into one of these categories. The components of a targeted assistance program are defined to assure quality and scope of educational opportunities.42 The school must advise the parents of a child who is limited English proficient and who has disabilities how a language instruction program meets the child’s IEP goals and objectives.43
3. Options for Students When the Schools Fail
If a school fails to make adequate yearly progress for two consecutive years, it must be identified for school improvement.44 Students must then have the option to transfer to another public school, with priority given to the lowest achieving children from low-income families.45 Also, if the school is identified as persistently dangerous and cannot protect the child, a child may transfer to a new school.46 The local educational agency must pay for transportation.47
In the alternative, the child must be given supplemental educational services.48 These services may be selected by the parents, but the provider must be approved for that purpose by the State educational agency. After the parent selects the provider, the local educational agency enters into an agreement with the provider.49 In the case of a student with disabilities, this agreement must be consistent with the student’s IEP.50
4. At-Risk Children and Youth
Part D of Title 1, “Prevention and Intervention Programs for Children and Youth who are Neglected, Delinquent, or At-Risk,” has the following purposes:
- Improve educational services for neglected or delinquent children and youth in institutions;
- Provide transition services so neglected or delinquent children can attend school or secure employment;
- Prevent at-risk youth from dropping out of school; and
- Provide a support system to dropouts and juveniles who return from correctional facilities so they can continue their education.51
The purpose of this section, therefore, is to serve children and youth who are institutionalized, either because of dependency or neglect, or because of incarceration. A state educational agency receiving funds under this subpart must submit an application that addresses the needs of institutionalized children.
Under the Act, the state agency must designate: “an individual in each affected correctional facility or institution for neglected or delinquent children and youth to be responsible for issues relating to the transition of children and youth from such facility or institution to locally operated programs.”52 The state agency works with institutionalized children and youth with disabilities to meet existing IEPs and notifies the local school if a student is identified as in need of special education services and intends to return to the local school.53 If the child or youth has dropped out of school before entering the institution, the agency encourages him or her to reenter school or provides the skills necessary to gain employment or continue education.54 Teachers and other qualified staff in the institution must be trained to work with students with disabilities and special needs.55
5. Reading Skills Under NCLB
There is a high correlation among poor reading skills, learning disabilities, and juvenile delinquency.56 NCLB provides for coordination of reading programs from early childhood through adulthood. In Early Reading First, NCLB focuses on early identification of reading problems and early intervention through methods founded on scientifically based reading research.57 The section targets preschool children, particularly those from low-income families.58
NCLB authorizes funds:
To provide assistance to State educational agencies and local educational agencies in establishing reading programs for students in kindergarten through grade 3 that are based on scientifically based reading research, to ensure that every student can read at grade level or above not later than the end of grade 3.59
Moreover, NCLB supports and provides funds for family-based literacy programs for families with need-related indicators such as poverty, illiteracy, unemployment, limited English proficiency, and domestic violence.60
These programs, called “Even Start,” combine early childhood education, adult literacy or basic education, and parenting education.61 Even Start programs must provide screening and preparation of parents (including teenage parents) and children. Components of screening and preparation include “testing, referral to necessary counseling, other developmental and support services, and related services.”62 Among other requirements, programs must “include high-quality, intensive instructional programs that promote adult literacy and empower parents to support the educational growth of their children, developmentally appropriate early childhood educational services, and preparation of children for success in regular school programs.”63
E. McKinney-Vento Homeless Assistance Act
The McKinney-Vento Homeless Education Assistance Act of 2001 is codified in Part C of Title X of NCLB.64 School districts must ensure that all children who are homeless have access to school. Homeless children and youth are “individuals who lack a fixed, regular, and adequate nighttime residence.”65 The definition includes children who are awaiting foster care placement.66
Homeless children should have the same free, appropriate, public education as other children.67 Schools must keep a homeless child in the school of origin except where doing so is contrary to the wishes of the child’s parent or guardian.68 The Act requires that the “choice regarding placement shall be made regardless of whether the child or youth lives with homeless parents or has been temporarily placed elsewhere.”69 Under this clause, a child who has been temporarily placed with relatives or in some other temporary situation still may be entitled to attend the school of origin.70
If a homeless child still lives in the area served by the local educational agency (school district) in which the school of origin is located, the school district must provide the child’s transportation to and from the school of origin.71
Sometimes the student will enroll at a new, more convenient school. Schools must immediately enroll homeless children, even if their medical, academic, and residency records are not available.72 If there is a dispute about enrollment, the child “shall be immediately admitted to the school in which enrollment is sought, pending resolution of the dispute.”73 Also, students who were receiving special education services at their previous school must be immediately provided with comparable services in the new school.74
Each school district must have a liaison or coordinator to help homeless children.75 This person can be accessed through a school district’s central office.76 The school must ensure that the homeless liaison helps to make placement and enrollment decisions for an unaccompanied youth not in the physical custody of a parent or guardian.77
When dealing with a child who might fit the definition of homeless under this act, notify the McKinney-Vento liaison in the school district.78
F. Family Educational Rights and Privacy Act (FERPA)
The purpose of the Family Educational Rights and Privacy Act (FERPA) is to protect the privacy of students and parents.79 Parents have the right to inspect and review the educational records of their children, as do children over eighteen to review their own records, and procedures must be in place for them to do so within forty-five days or a reasonable period of time.80 They also have the right to challenge what is in the student’s record.81 A parent or eligible student may request amendment of an educational record if that person believes the records are inaccurate, misleading, or in violation of the student’s right of privacy.82
“Educational records” are defined in FERPA as those records that are directly related to the student and are maintained by an educational agency, or by a party acting for such agency. The definition includes records, files, documents, and other material that contain information directly related to a student and are maintained by an educational agency or institution.83 Records include “any information recorded in any way, including but not limited to handwriting, print, computer media, video or audiotape, film, microfilm and microfiche.”84 It would encompass internet student record systems, automated phone calls, and emails from the school district computer systems relating to unexcused absences, grades below a C, and discipline reports. Appropriate information may be included in the education record concerning disciplinary action taken against students for conduct that posed a significant risk to the safety or well-being of others.85
Educational records do not include personal notes and memory aids used only by the person who made them.86 They do not include information from the “law enforcement unit” of a school or school district.87 Educational records also do not include oral information based on personal knowledge, such as a teacher’s observations about classroom behavior.88
Generally, schools must obtain a parent’s written permission to disclose a student’s school records.89 “Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written or electronic means.”90
However, there are some exceptions. Records may be released to school officials and teachers who have legitimate educational interests, officials of other schools or school systems in which the student intends to enroll, and state educational authorities.
Records also may be released to the juvenile justice system, if they are needed to serve the juvenile effectively before adjudication.91 FERPA provides an exception to the parental consent requirement for the release of student educational records and authorizes the release of education records to comply with a court order or subpoena.92 The educational agency may disclose identifiable information from an educational record of a student without the parental consent required by CFR § 99.30 if the disclosure is to comply with a judicial order or lawfully issued subpoena.93 The agency or institution must make a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance so that the parent or eligible student may seek protective action.94
Therefore, a judge may order the release of these records to make decisions about a neglected or dependent child or youth’s education.95 Records may also be released for an emergency, to protect the health and safety of the child.96
Information, once released, may not be re-disclosed to anyone else, unless that disclosure also fits under a FERPA exception.97 It is better to obtain records while considered as the parent, because then the prohibition against re-disclosure does not apply. The Court ruled, in a FERPA context that, “when disclosure to a private party is directed by court order, it would seem sensible to require in the disclosure order that the recipients of the student records avoid revealing the data to individuals unconnected with the litigation. . . .”98
Under the Adoption Assistance and Child Welfare Act (AACWA), agencies must keep educational records as part of their case plan. They must also share educational records with foster care providers at placement.99 Colorado is one of the states with problems of these records not being in the case files or not given to foster parents.100 Best practices are that, at a minimum, all records necessary for school enrollment are kept in the child’s file, to avoid delays if the child must be enrolled in a new school.101
G. Adoption and Safe Families Act (2000)(ASFA)
To promote the adoption of children in foster care, Congress enacted the Adoption and Safe Families Act (ASFA).102
States must undergo child and family service reviews (CFSR) in the child welfare system. One well-being outcome to measure performance of a state is whether “[c]hildren receive appropriate services to meet their educational needs.”103 If states do not achieve these outcomes, they risk losing federal funding.104
1. C.R.S. § 22-20-101 through 118.
2. State Bd. of Educ. Rule 2220-R-1.00 through 12.07, 1 Code Colo. Regs. 301-8 (2009).
3. 20 U.S.C. § 1400(d)(1)(A) (2005).
4. 20 U.S.C. § 1401(29) (2008).
5. 20 U.S.C. § 1401(3)(A)(i).
6. 20 U.S.C. § 1401(3)(A)(ii); 34 C.F.R. § 300.8(a)(1).
7. 20 U.S.C. § 1401(30)(A).
8. 20 U.S.C. § 1401(30)(B).
9. 34 C.F.R. § 300.8(c)(4).
10. Rule 2.08.
11. Rule 2.08(5).
12. Rule 2.08(5).
13. 20 U.S.C. § 1401(3)(B)(i).
14. 20 U.S.C. § 1401(3)(B)(ii).
15. Peter W. D. Wright, Pamela Darr Wright, Special Education Law, 50 (Harbor House Law Press Inc. 2d ed. 2007).
16. 29 U.S.C. § 794(a) (2002).
17. Wright, supra note 15 at 291.
18. Randy Chapman, The Everyday Guide to Special Education Law, 77 (The Legal Center for People with Disabilities and Older People 2005).
19. Hunt v. St. Peter School, 963 F. Supp. 843 (W.D. Mo. 1997).
20. Wright, supra note 15 at 292; 42 U.S.C. § 12102(2) (2009).
21. 29 U.S.C. § 794(a); 42 U.S.C. § 12102(1) (2009).
22. Wright, supra note 15 at 292.
23. National Children’s Law Network, In School, the Right School, Finish School , 24 (Holland & Hart and Rocky Mountain Children’s Law Center 2007), citing 23 IDELR 504 (OCR 1994).
24. 29 C.F.R. § 1630.2(j)(1)(i).
25. 29 C.F.R. § 1630.2(j)(1)(ii).
27. 42 U.S.C. § 12101 et seq.
28. Chapman, supra note 18 at 84-85.
29. Id. at 85-86.
30. Sue Burrell and Loren Warboys, Special Education and the Juvenile Justice System, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Bulletin July 2000, at 2.
31. 20 U.S.C. §§ 6301 through 6578.
32. 20 U.S.C. § 6301 (2002).
33. 20 U.S.C. § 6301(2).
34. 20 U.S.C. § 6368 (2002).
35. Peter W. D. Wright, Pamela Darr Wright and Suzanne Whitney Heath, No Child Left Behind, 77 (Harbor House Law Press Inc. 2007); 20 U.S.C. § 6311(b)(2)(B).
36. 20 U.S.C. § 6311(b)(2)(C) (2006).
37. 20 U.S.C. § 6311(h)(2)(B)(i).
38. 20 U.S.C. § 6312(b)(1)(E)(ii) (2007).
39. 20 U.S.C. § 6312(b)(1)(I).
40. 20 U.S.C. § 6313(c)(3) (2002).
41. 20 U.S.C. § 6315 (b)(2) (2002).
42". 20 U.S.C. § 6315(c)(1).
43. Wright and Heath, supra note 35 at 165; 20 U.S.C. § 6312)(g)(1)(A)(vii).
44. 20 U.S.C. § 6316(b)(1)(A) (2002).
45. 20 U.S.C. § 6316(b)(1)(E).
46. 20 U.S.C. § 7912(a) (2002).
47. 20 U.S.C. § 6316(b)(9).
48. 20 U.S.C. § 6316(b)(6)(F).
49. 20 U.S.C. § 6316(e).
50. 20 U.S.C. § 6316(e)(3).
51. 20 U.S.C. §§ 6421 through 6422 (2002); Wright and Heath, supra note 35 at 29.
52. 20 U.S.C. §6434(c)(11) (2002).
53. 20 U.S.C. § 6434(c)(15); 20 U.S.C. § 6455(2) (2008).
54. 20 U.S.C. § 6434(c)(16); 20 U.S.C. § 6455(4).
55. 20 U.S.C. § 6434(c)(17); 20 U.S.C. § 6455(5).
56. Wright and Heath, supra note 34 at 73.
57. Id. at 243.
58. 20 U.S.C. § 6371(a)(1) (2002).
59. 20 U.S.C. § 6361(1) (2002).
60. 20 U.S.C. 6381g(a)(1)(B) (2002).
61. 20 U.S.C. § 6381(1) and § 6381c(a) (2002).
62. 20 U.S.C. § 6381d(2) (2002).
63. 20 U.S.C. § 6381d(4).
64. 42 U.S.C. § 11431 through 11435.
65. 42 U.S.C. § 11434a(2) (2002).
66. 42 U.S.C. § 11434a(2).
67. 42 U.S.C. § 11431(1).
68. 42 U.S.C. § 11432(g)(3)(B) (2008).
69. 42 U.S.C. § 11432(g)(3)(F).
70. Dean B. Eggert, Providing Special Education Services to Children and Youth in Homeless Situations, April 16, 2004 (available at http://www.wadleighlaw.com/articles/School/special_education_for_homeless.htm) (viewed May 5, 2008).
71. 42 U.S.C. § 11432(g)(1)(J).
72. 42 U.S.C. § 11432(g)(3)(C).
73. 42 U.S.C. § 11432(g)(3)(E).
74. Eric Tars, Separate & Unequal in the Same Classroom, p. 272, No. 3, Summer 2009, Loy. Pub. Int. L. Rep.
75. 42 U.S.C. § 11432(g)(1)(J)(ii).
76. National Law Center of Homelessness and Poverty, Educating Homeless Children and Youth: The Guide to Their Rights 9 (August 2007) (available at http://www.nlchp.org/content/pubs/Basic%20McKinney%20Booklet%20(2007)1.pdf) (viewed May 4, 2008).
77. 42 U.S.C. § 11432(g)(3)(B); 42 U.S.C. § 11434a(6).
78. Kathleen McNaught, Learning Curves: Education Advocacy for Children in Foster Care 28 (ABA Center on Children and the Law 2004).
79. Wright, supra note 15 at 307.
80. 20 U.S.C. § 1232g(a)(1)(A) (2002).
81. 20 U.S.C. § 1232g(a)(2).
82. 20 U.S.C. 1232g(a)(2).
83. 20 U.S.C. § 1232g(a)(3) & (4).
84. 34 C.F.R. § 99.3 (2009).
85. 20 U.S.C. § 1232g(h).
86. Wright, supra note 15 at 307.
87. A Guide to FERPA. Available at http://www.fape.org/justice/sharing.html (viewed Sept. 30, 2010).
88. McNaught, supra note 78 at 20-21.
89. National Council on Disability, Youth with Disabilities in the Foster Care System: Barriers to Success and Proposed Policy Solutions, at 57 (2008) available at http://www.ncd.gov/newsroom/publications/2008/FosterCareSystem_Report.html (viewed Sept. 30, 2010).
90. 34 C.F.R. § 99.3.
91. 20 U.S.C. 1232g(b)(1).
92. 20 U.S.C § 1232g(b)(1)(J).
93. 34 C.F.R. § 99.31(a)(9)(i) (2009).
94. A Guide to FERPA supra note 87.
95. National Council on Disability, supra note 89 at 57.
96. Angela J. Herrick and Helen D. Ward, Advocating for the Educational Needs of Children in Out-of-Home Care 2-11 Colorado Department of Human Services.
97. McNaught, supra note 78 at 21.
98. Rios v. Reed, 73 F.R.D 589 (D.C.N.Y. 1977).
99. Kathleen McNaught, Mythbusting: Breaking Down Confidentiality and Decision-Making Barriers to Meet the Education Needs of Children in Foster Care 12, 31 (American Bar Association 2005). Available at http://www.abanet.org/child/education/other-pub.shtml (viewed Sept. 30, 2010); 42 U.S.C. § 675(5)(D) (2010).
100. Id. at 10.
101. Id. at 45.
102. Pub. L. 105-89 (1997).
103. 45 C.F.R. § 1355.34(b)(1)(iii)(B).
104. McNaught, supra note 78 at 2.
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