5.10.1 Except as provided in 34 CFR 300.102, the obligation to make FAPE available to all children with disabilities does not apply with respect to students aged 18 to 21 years to the extent that State law does not require that special education and related services under Part B of IDEA be provided to students with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility -

5.10.1.1 Were not actually identified as being a child with a disability under 34 CFR 300.8; and

5.10.1.2 Did not have an IEP under Part B of the IDEA.

5.10.2 The exception in paragraph 5.10.1 of this section does not apply to the children with disabilities, aged 18 through 21, who:

5.10.2.1 Had been identified as a child with a disability under 34 CFR 300.8 and had received services in accordance with an IEP, but who left school prior to their incarceration; or

5.10.2.2 Did not have an IEP in their last education setting, but who had actually been identified as a child with a disability under 34 CFR 300.8.

5.10.3 Requirements that do not apply. The following requirements do not apply to children with disabilities who are convicted as adults under Arkansas state law and are incarcerated in adult prisons.

5.10.3.1 The requirements relating to participation of children with disabilities in general assessments found in § 612(a)(16) of the IDEA and 34 CFR 300.320(a)(6); and

5.10.3.2 The requirements in 34 CFR 300.320(b) relating to transition planning and transition services, with respect to the children whose eligibility under Part B of IDEA will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.

5.10.4 Modifications of IEP or placement.

5.10.4.1 Subject to § 5.10.4.2 of this part, the IEP Team of a child with a disability, who is convicted as an adult under Arkansas state law and incarcerated in an adult prison, may modify the child's IEP or placement if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

5.10.4.2 The requirements of 34 CFR 300.320 and 300.112, and §§ 8.02.1 and 8.08.1 of these regulations relating to IEPs, and 34 CFR 300.114 and § 13.01 of these regulations relating to LRE, do not apply with respect to the modifications described in § 5.10.4.1 of this part.