TITLE VIICHAPTER 41SPECIAL EDUCATION[Prior to 9/7/88, see Public Instruction Department[670] Ch 12]DIVISION IPURPOSE AND APPLICABILITY28141.1(256B, 34CFR300) Purposes. The purposes of this chapter are set forth in 34 CFR Section 300.1.Related ARC(s): 7792C28141.2(256B, 34CFR300) Applicability of this chapter. The provisions of this chapter are binding on each public agency in the state that provides special education and related services to children with disabilities, regardless of whether that agency is receiving funds under Part B of the Individuals with Disabilities Education Act (Act). 41.2(1) General. The provisions of this chapter apply to all political subdivisions of the state that are involved in the education of children with disabilities, including: a. The state educational agency (SEA). b. Local educational agencies (LEAs), area education agencies (AEAs), and public charter schools that are not otherwise included as LEAs or educational service agencies (ESAs) and are not a school of an LEA or ESA. c. Other state agencies and schools, including but not limited to the department of health and human services and state schools and programs for children who are deaf or hard of hearing or children who are blind or visually impaired. d. State and local juvenile and adult correctional facilities. 41.2(2) Private schools and facilities. Each public agency in the state is responsible for ensuring that the rights and protections under Part B of the Act are given to children with disabilities referred to or placed in private schools and facilities by that public agency; or placed in private schools by their parents under the provisions of rule 281—41.148(256B,34CFR300). 41.2(3) Age. This chapter applies to all children requiring special education between birth and the twenty-first birthday and to a maximum allowable age under Iowa Code section 256B.8.Related ARC(s): 7792CDIVISION IIDEFINITIONS28141.3(256B, 34CFR300) Act. “Act” means the Individuals with Disabilities Education Act as amended through August 14, 2006.28141.4(256B, 273) Area education agency. “Area education agency” or “AEA” is a political subdivision of the state organized pursuant to Iowa Code chapter 273. An area education agency, depending on context, may be a local educational agency as defined in rule 281—41.28(256B,34CFR300), an educational service agency as defined in rule 281—41.12(256B,34CFR300), or both simultaneously.Related ARC(s): 7792C28141.5(256B, 34CFR300) Assistive technology device. “Assistive technology device” means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term does not include a medical device that is surgically implanted or the replacement of such device.28141.6(256B, 34CFR300) Assistive technology service. “Assistive technology service” means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes the following:
- The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;
- Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
- Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
- Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
- Training or technical assistance for a child with a disability or, if appropriate, that child’s family; and
- Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.
- “Business day” means Monday through Friday, except for federal and state holidays, unless holidays are specifically included in the designation of business day, as in paragraph 41.148(4)“b.”
- “School day” means any day, including a partial day, when children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities. The length of the school day for an eligible individual shall be the same as that determined by the local educational agency’s board of directors for all other individuals, unless a shorter day or longer day is prescribed in the eligible individual’s individualized education program.
- Advise the department of unmet needs within the state in the education of children with disabilities;
- Comment publicly on any rules or regulations proposed by the state regarding the education of children with disabilities;
- Advise the department in developing evaluations and reporting on data to the Secretary under Section 618 of the Act;
- Advise the department in developing corrective action plans to address findings identified in federal monitoring reports under Part B of the Act;
- Advise the department in developing and implementing policies relating to the coordination of services for children with disabilities; and
- Advise the department on eligible individuals with disabilities in adult prisons.
"Assistant director of special education" provides specific areawide administrative, supervisory and coordinating functions as delegated by the director.
"Audiologist" applies principles, methods and procedures for analysis of hearing functioning in order to plan, counsel, coordinate and provide intervention strategies and services for individuals who are deaf or hard of hearing.
"Consultant" is the special education instructional specialist who provides ongoing support to special and general education instructional personnel delivering services to eligible individuals. The consultant participates in the identification process and program planning of eligible individuals as well as working to attain the least restrictive environment appropriate for each eligible individual. The consultant demonstrates instructional procedures, strategies, and techniques; assists in the development of curriculum and instructional materials; assists in transition planning; and provides assistance in classroom management and behavioral intervention.
"Educational interpreter" interprets or translates spoken language into sign language commensurate with the receiver’s language comprehension and interprets or translates sign language into spoken language.
"Educational strategist" provides assistance to general education classroom teachers in developing intervention strategies for individuals who are disabled in obtaining an education but can be accommodated in the general education classroom environment.
"Itinerant teacher" provides special education on an itinerant basis to eligible individuals.
"Occupational therapist" is a licensed health professional who applies principles, methods and procedures for analysis of, but not limited to, motor or sensorimotor functions to determine the educational significance of identified problem areas including fine motor manipulation, self-help, adaptive work skills, and play or leisure skills in order to provide planning, coordination, and implementation of intervention strategies and services for eligible individuals.
"Others (other special education support personnel)" may be employed as approved by the department and board of educational examiners.
"Physical therapist" is a licensed health professional who applies principles, methods and procedures for analysis of motor or sensorimotor functioning to determine the educational significance of motor or sensorimotor problems within, but not limited to, areas such as mobility and positioning in order to provide planning, coordination, and the implementation of intervention strategies and services for eligible individuals.
"School psychologist" assists in the identification of needs regarding behavioral, social, emotional, educational and vocational functioning of individuals; analyzes and integrates information about behavior and conditions affecting learning; consults with school personnel and parents regarding planning, implementing and evaluating individual and group interventions; provides direct services through counseling with parents, individuals and families; and conducts applied research related to psychological and educational variables affecting learning.
"School social worker" enhances the educational programs of individuals by assisting in identification and assessment of individuals’ educational needs including social, emotional, behavioral and adaptive needs; provides intervention services including individual, group, parent and family counseling; provides consultation and planning; and serves as a liaison among home, school and community.
"Special education coordinator" facilitates the provision of special education within a specific geographic area.
"Special education media specialist" is a media specialist who facilitates the provision of media services to eligible individuals; provides consultation regarding media and materials used to support special education and related services for eligible individuals; and aids in the effective use of media by special education personnel.
"Special education nurse" is a professional registered nurse who assesses, identifies and evaluates the health needs of eligible individuals; interprets for the family and educational personnel how health needs relate to individuals’ education; implements specific activities commensurate with the practice of professional nursing; and integrates health into the educational program.
"Speech-language pathologist" applies principles, methods and procedures for an analysis of speech and language comprehension and production to determine communicative competencies and provides intervention strategies and services related to speech and language development as well as disorders of language, voice, articulation and fluency.
"Supervisor" is the professional discipline specialist who provides for the development, maintenance, supervision, improvement and evaluation of professional practices and personnel within a specialty area.
"Work experience coordinator" plans and implements sequential secondary programs that provide on- and off-campus work experience for individuals requiring specially designed career exploration and vocational preparation when they are not available through the general education curriculum.
Related ARC(s): 7792C28141.403(256B) Paraprofessionals. 41.403(1) Responsibilities. Special education personnel may be employed to assist in the provision of special education and related services to children with disabilities and shall: a. Complete appropriate preservice and ongoing staff development specific to the functions to be performed. The agency shall make provisions for or require such completion prior to the beginning of service wherever practicable and within a reasonable time of the beginning of service where the preentry completion is not practicable. b. Work under the supervision of professional personnel who are appropriately authorized to provide direct services in the same area where the paraprofessional provides assistive services. c. Not serve as a substitute for appropriately authorized professional personnel. 41.403(2) Authorized special education paraprofessionals. Authorized special education paraprofessional roles include:“Audiometrist” provides hearing screening and other specific hearing-related activities as assigned by the audiologist.“Licensed practical nurse” shall be permitted to provide supportive and restorative care to an eligible individual in the school setting in accordance with the student’s health plan when under the supervision of and as delegated by the registered nurse employed by the school district.“Occupational therapy assistant” is licensed to perform occupational therapy procedures and related tasks that have been selected and delegated by the supervising occupational therapist.“Others” as approved by the department, such as educational assistants described in 281—subrule 12.4(9).“Para-educator” is a licensed educational assistant as defined in Iowa Code section 256.157.“Physical therapist assistant” is licensed to perform physical therapy procedures and related tasks that have been selected and delegated by the supervising physical therapist.“Psychology assistant” collects screening data through records review, systematic behavior observations, standardized interviews, group and individual assessment techniques; implements psychological intervention plans; and maintains psychological records under supervision of the school psychologist.“Speech-language pathology assistant” provides certain language, articulation, voice and fluency activities as assigned by the supervising speech-language pathologist.“Vision assistant” provides materials in the appropriate medium for use by individuals who are blind or visually impaired and performs other duties as assigned by the supervising teacher of the visually impaired.Related ARC(s): 7792C28141.404(256B) Policies and procedures required of all public agencies. 41.404(1) Policies. Policies related to the provision of special education and related services shall be developed by each public agency and made available to the department upon request to include the following: a. Policy to ensure the provision of a free appropriate public education. b. Policy for the provision of special education and related services. c. Policies to ensure the provision of special education and related services in the least restrictive environment. d. Policy concerning the protection of confidentiality of personally identifiable information. e. Policy concerning graduation requirements for eligible individuals. f. Policy to ensure the participation of eligible individuals in districtwide assessment programs. 41.404(2) Procedures. Each public agency shall develop written procedures concerning the provision of special education and related services and shall make such procedures available to the department upon request and shall, at a minimum, include: a. Procedures to ensure the provision of special education and related services. b. Procedures for protecting the confidentiality of personally identifiable information. c. Procedures for the graduation of eligible individuals. d. Procedures for providing continuing education opportunities. e. A procedure for its continued participation in the development of the eligible individual’s IEP in out-of-state placements and shall outline a program to prepare for the eligible individual’s transition back to the LEA before the eligible individual is placed out of state. f. Procedures for ensuring procedural safeguards for children with disabilities and their parents. g. Procedures to ensure the participation of eligible individuals in districtwide assessment programs. 41.404(3) Rule of construction. Any public agency will adopt any policy and procedure necessary to comply with Part B of the Act and this chapter, even if such a policy or procedure is not listed in this rule.Related ARC(s): 7792C28141.405 Reserved. 28141.406(256B) Additional requirements of LEAs. The following provisions are applicable to each LEA that provides special education and related services. 41.406(1) Policies. Each LEA will develop written policies pertinent to the provision of special education and related services and make such policies available to the department upon request. At a minimum, such policies include those identified in subrule 41.404(1). 41.406(2) Procedures. Each LEA will develop written procedures pertinent to the provision of special education and related services and make such procedures available to the department upon request. At a minimum, such procedures include those identified in subrule 41.404(2). 41.406(3) Plans. Districtwide plans required by the department or federal programs and regulations will address eligible individuals and describe the relationship to or involvement of special education services. 41.406(4) Nonpublic schools. Each LEA shall provide special education and related services designed to meet the needs of nonpublic school students with disabilities residing in the jurisdiction of the agency in accordance with Iowa Code sections 256.12(2) and 273.2.Related ARC(s): 7792C28141.407(256B, 273, 34CFR300) Additional requirements of AEAs. The following provisions are applicable to each AEA that provides special education and related services. 41.407(1) Policies. Each AEA will develop written policies pertinent to the provision of special education and related services and will make such policies available to the department upon request. At a minimum, such policies will include those identified in paragraphs 41.404(1)“a” to “e” and the following: a. Policy regarding appointment of surrogate parents. b. Policy regarding provision of and payment for independent educational evaluations. c. Policy to ensure the goal of providing a full educational opportunity to all eligible individuals. d. Policy addressing the methods of ensuring services to eligible individuals. e. Child find policy that ensures that individuals with disabilities who are in need of special education and related services are identified, located and evaluated. f. A policy that meets the requirements of these rules for evaluating and determining eligibility of students who require special education, including a description of the extent to which the AEA system uses categorical designations. While AEAs may identify students as eligible for special education without designating a specific disability category, it is recognized that in certain circumstances the identification of a specific disability may enhance the development and ongoing provision of an appropriate educational program. g. Policy for the development, review and revision of IEPs. h. Policy for transition from Part C to Part B. i. Policy for provision of special education and related services to students in accredited, nonpublic schools. 41.407(2) Procedures. Each AEA will develop written procedures pertinent to the provision of special education and related services and make such procedures available to the department upon request. At a minimum, such procedures include those identified in subrule 41.404(2) and the following: a. Appointment of surrogate parents. b. Provision of and payment for independent educational evaluations. c. Procedures for monitoring the caseloads of LEA and AEA special education personnel to ensure that the IEPs of eligible individuals are able to be fully implemented. The description shall include the procedures for timely and effective resolution of concerns about caseloads and paraprofessional assistance that have not been resolved satisfactorily pursuant to subparagraph 41.408(2)“b”(3). d. Procedures for evaluating the effectiveness of services in meeting the needs of eligible individuals in order to receive federal assistance. e. Child find procedures that ensure that individuals with disabilities who are in need of special education and related services are identified, located and evaluated. f. Evaluation and determination of eligibility procedures for identifying students who require special education that meet the requirements of these rules, including a description of the extent to which the AEA system uses categorical designations. g. Procedures for the development, review and revision of IEPs. h. Procedures to ensure the provision of special education and related services in the least restrictive environment. i. Procedures for transition from Part C to Part B. j. Procedures for provision of special education and related services to students in accredited, nonpublic schools. k. Procedures describing the methods of ensuring services to eligible individuals. 41.407(3) Responsibility for monitoring of compliance. The AEA shall conduct activities in each constituent LEA to monitor compliance with the provisions of all applicable federal and state statutes and regulations and rules applicable to the education of eligible individuals. Monitoring of compliance activities will be as directed by the department. 41.407(4) Educate and inform. The AEA will provide the department with a description of proactive steps to inform and educate parents, AEA and LEA staff regarding eligibility, identification criteria and process, and due process steps to be followed when parents disagree regarding eligibility. 41.407(5) Coordination of services. The AEA will provide the department with a description of how the AEA identification process and LEA delivery systems for instructional services will be coordinated.Related ARC(s): 7792C28141.408(256B, 273, 34CFR300) Instructional services. 41.408(1) General. Instructional services are the specially designed instruction and accommodations provided by special education instructional personnel to eligible individuals. These services are ordinarily provided by the LEA but, in limited circumstances, may be provided by another LEA, the AEA or another recognized agency through contractual agreement. An agency must use the procedure and criteria described in subrule 41.408(2) for creating a delivery system for instructional services. 41.408(2) Delivery system. An agency shall use the following development process for creating a system for delivering instructional services. a. The delivery system shall meet this chapter’s requirements relating to a continuum of services and placements, address the needs of eligible individuals aged 3 to 21, and provide for the following: (1) The provision of accommodations and modifications to the general education environment and program, including settings and programs in which eligible individuals aged 3 through 5 receive specially designed instruction, including modification and adaptation of curriculum, instructional techniques and strategies, and instructional materials. (2) The provision of specially designed instruction and related activities through cooperative efforts of special education teachers and general education teachers in the general education classroom. (3) The provision of specially designed instruction on a limited basis by a special education teacher in the general classroom or in an environment other than the general classroom, including consultation with general education teachers. (4) The provision of specially designed instruction to eligible individuals with similar special education instructional needs organized according to the type of curriculum and instruction to be provided, and the severity of the educational needs of the eligible individuals served. b. The delivery system shall be described in writing and shall include the following components: (1) A description of how services will be organized and how services will be provided to eligible individuals consistent with the requirements of this chapter, and the provisions described in paragraph 41.408(2)“a.” (2) A description of how the caseloads of special education teachers will be determined and regularly monitored to ensure that the IEPs of eligible individuals are able to be fully implemented. (3) A description of the procedures a special education teacher can use to resolve concerns about caseload. The procedures shall specify timelines for the resolution of a concern and identify the person to whom a teacher reports a concern. The procedures shall also identify the person or persons who are responsible for reviewing a concern and rendering a decision, including the specification of any corrective actions. (4) A description of the process that will be used to evaluate the effectiveness of the system. (5) A description of how the delivery system will meet the targets identified in the state’s performance plan, described in this chapter. (6) A description of how the delivery system will address needs identified by the state in any determination made under this chapter. c. The following procedures shall be followed by the agency: (1) The delivery system will be developed by a group of individuals that includes parents of eligible individuals, special education and general education teachers, administrators, and at least one AEA representative. The AEA representative will be selected by the AEA director. (2) The AEA director of special education will verify that the delivery system complies with these rules prior to LEA board adoption. (3) Prior to presenting the delivery system to the LEA board for adoption, the group responsible for its development will provide an opportunity for comment on the system by the general public. In presenting the delivery system to the LEA board for adoption, the group will describe the comment received from the general public and how the comment was considered. (4) The LEA board will approve the system prior to implementation. d. The procedure presented in subrule 41.907(9) shall be followed in applying the weighting plan for special education instructional funds described in Iowa Code section 256B.9 to any delivery system developed under these provisions. e. An LEA shall review, revise, and readopt its delivery system using the procedures identified in paragraph “c” of this subrule at least every five years, or sooner if required by the state in conjunction with any determination made under this chapter. f. An LEA shall make the document describing its delivery system readily available to LEA personnel and members of the public.Related ARC(s): 7792C28141.409(256B, 34CFR300) Support services. Support services are the specially designed instruction and activities that augment, supplement or support the educational program of eligible individuals. These services include special education consultant services, educational strategist services, audiology, occupational therapy, physical therapy, school psychology, school social work services, special education nursing services, and speech-language services. Support services are usually provided by the AEA but may be provided by contractual agreement, subject to the approval of the board, by another qualified agency.28141.410(256B, 34CFR300) Itinerant services. Special education may be provided to eligible individuals on an itinerant basis. 41.410(1) School based. Special education may be provided on an itinerant basis whenever the number, age, severity, or location of eligible individuals to be served does not justify the provision of professional personnel on a full-time basis to an attendance center. These services are usually provided by the AEA but may be provided by contractual agreement, subject to the approval of the AEA board, by the LEA or another qualified agency. 41.410(2) Home service or hospital service. Special education shall be provided to eligible individuals whose condition precludes their participation in the general and special education provided in schools or related facilities. Home or hospital instructional services shall in ordinary circumstances be provided by the LEA but may be provided by contractual agreement, subject to the approval of the LEA board, by the AEA or another qualified agency. Home or hospital support or related services are usually provided by the AEA but may be provided by contractual agreement, subject to the approval of the AEA board, by the LEA or another qualified agency. The provision of services in a home or hospital setting shall satisfy the following: a. The service and the location of the service shall be specified in the individual’s IEP. b. The status of these individuals shall be periodically reviewed to substantiate the continuing need for and the appropriateness of the service. c. Procedural safeguards shall be afforded to individuals receiving special education through itinerant services in a home or hospital setting. A need for itinerant services in a home or hospital setting must be determined at a meeting to develop or revise the individual’s IEP, and parents must give consent or be given notice, as appropriate.28141.411(256B, 34CFR300) Related services, supplementary aids and services. Related services and supplementary aids and services shall be provided to an eligible individual in accordance with an IEP. Such services that are also support services under rule 281—41.409(256B,34CFR300) are usually provided by the AEA but may be provided by contractual agreement, subject to the approval of the board, by another qualified agency. Other such services are usually provided by the LEA but may be provided by contractual agreement, subject to the approval of the board, by another qualified agency.28141.412(256B, 34CFR300) Transportation. Transportation of eligible individuals shall generally be provided as for other individuals, when appropriate. Specialized transportation of an eligible individual to and from a special education instructional service is a function of that service and, therefore, an appropriate expenditure of special education instructional funds generated through the weighting plan. Transportation includes travel to and from school and between schools; travel in and around school buildings; and specialized equipment, such as special or adapted buses, lifts, and ramps, if required to provide special transportation for a child with a disability. 41.412(1) Special arrangements. Transportation of an eligible individual to and from a special education support service is a function of that service, shall be specified in the IEP, and be considered an appropriate expenditure of funds generated for special education support services. When, because of an eligible individual’s educational needs or because of the location of the program, the IEP team determines that unique transportation arrangements are required and the arrangements are specified in the IEP, the resident LEA shall be required to provide one or more of the following transportation arrangements for instructional services and the AEA for support services: a. Transportation from the eligible individual’s residence to the location of the special education services and back to the individual’s residence, or child care placement for eligible individuals below the age of six. b. Special assistance or adaptations in getting the eligible individual to and from and on and off the vehicle, en route to and from the special education services. c. Reimbursement of the actual costs of transportation when by mutual agreement the parents provide transportation for the eligible individual to and from the special education services. d. Agencies are not required to provide reimbursement to parents who elect to provide transportation in lieu of agency-provided transportation. 41.412(2) Responsibility for transportation. a. The AEA shall provide the cost of transportation of eligible individuals to and from special education support services. The AEA shall provide the cost of transportation necessary for the provision of special education support services to nonpublic school eligible individuals if the cost of that transportation is in addition to the cost of transportation provided for special education instructional services. b. When individuals enrolled in nonpublic schools are enrolled in public schools to receive special education instructional services, transportation provisions between nonpublic and public attendance centers will be the responsibility of the school district of residence. c. Transportation of individuals, when required for educational diagnostic purposes, is a special education support service and, therefore, an appropriate expenditure of funds generated for special education support services. 41.412(3) Purchase of transportation equipment. When it is necessary for an LEA to purchase equipment to transport eligible individuals to special education instructional services, this equipment shall be purchased from the LEA’s general fund, the physical plant and equipment levy (PPEL) fund, or the secure an advanced vision for education (SAVE) fund, if appropriate. The direct purchase of transportation equipment is not an appropriate expenditure of special education instructional funds generated through the weighting plan. A written schedule of depreciation for this transportation equipment shall be developed by the LEA, using the method specified in Iowa Code section 285.1(12). An annual charge to special education instructional funds generated through the weighting plan for depreciation of the equipment shall be made and reported as a special education transportation cost in the LEA Certified Annual Report if the equipment was purchased from the general fund. If the transportation equipment was purchased using funds from the PPEL fund or SAVE fund, that purchase is not reported as a cost from special education funds generated through the weighting plan. Annual depreciation charges on transportation equipment purchased with funds from the PPEL fund or SAVE fund shall be calculated by the LEA according to the directions provided with the Annual Transportation Report and adjusted to reflect the proportion of special education mileage to the total annual mileage. 41.412(4) Lease of transportation equipment. An LEA may elect to lease equipment to transport eligible individuals to special education instructional services, in which case the lease cost would be an expenditure from the PPEL fund or the SAVE fund, if appropriate. Cost of the lease, or that portion of the lease attributable to special education transportation expense, shall not be considered a special education transportation cost and shall not be reported in the LEA Certified Annual Report. 41.412(5) Transportation equipment safety standards. All transportation equipment, either purchased or leased by an LEA to transport eligible individuals to special education instructional services or provided by an AEA, must conform to the transportation equipment safety and construction standards contained in 281—Chapters 43 and 44. 41.412(6) Transportation for students in interdistrict and intradistrict school choice programs, such as open enrollment. The following provisions apply to the transportation of eligible individuals who participate in school choice programs: a. A parent who elects to have an eligible individual attend another school within an LEA may be required by the LEA to provide transportation to that eligible individual, even if transportation is listed on the eligible individual’s IEP as a service. b. If a parent elects to have an eligible individual with transportation listed as a service on the individual’s IEP attend a school in a different LEA under the open enrollment provisions of Iowa Code section 282.18 and 281—Chapter 17, and the resident district informs the parent it will not be providing transportation for the eligible individual to the receiving district, a parent who chooses to proceed with open enrollment will be deemed, as a matter of law, to have waived the transportation listed as a service on the IEP. c. If a parent of an eligible individual with transportation listed as a service on the individual’s IEP elects to have the eligible individual attend a school in a different LEA under the open enrollment provisions of Iowa Code section 282.18 and 281—Chapter 17, and the resident district elects to provide that transportation as a service, such transportation as a related service may be provided by the resident district, regardless of consent granted or refused by the receiving district and notwithstanding any other statute or rule to the contrary. d. If a parent of an eligible individual with transportation listed as a service on the individual’s IEP elects to have the eligible individual attend a school in a different LEA under the open enrollment provisions of Iowa Code section 282.18 and 281—Chapter 17, and the receiving district elects to provide that transportation as a service, such transportation as a related service may be provided by the receiving district, regardless of consent granted or refused by the resident district and notwithstanding any other statute or rule to the contrary, but the costs of such transportation shall not be paid by the individual’s resident district. e. If an eligible individual’s placement team proposes placement in a district other than the district of residence based on a tuition arrangement, regardless of whether the eligible individual’s IEP lists transportation as a related service, and the other district agrees to accept the eligible individual as an open enrollment student but not as a tuition student, the receiving district must provide transportation as a related service, regardless of consent granted or refused by the receiving district and notwithstanding any other statute or rule to the contrary. f. Except as expressly provided in this subrule, nothing in this subrule creates or expands any right, license, or privilege concerning transportation of persons who are not eligible individuals or transportation of eligible individuals who do not have transportation listed as a service on an IEP.Related ARC(s): 7792C28141.413(256, 256B, 34CFR300) Additional rules relating to accredited nonpublic schools. 41.413(1) State and local funds under Iowa Code section . State and local funds expended to provide special education and related services to eligible individuals who receive special education and related services in accredited nonpublic schools under Iowa Code section 256.12 must be expended on services, including materials and equipment, that are secular, neutral, and nonideological and, unless a provision of Iowa Code section 256.12 specifically requires the contrary, are subject to the restrictions contained in rules 281—41.138(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300). 41.413(2) Placements by public agencies. State and local funds expended to provide special education and related services to eligible individuals who receive special education and related services in accredited nonpublic schools pursuant to a placement made or referred by a public agency pursuant to rules 281—41.145(256B,34CFR300) to 281—41.147(256B,34CFR300) must be expended on services, including materials and equipment, that are secular, neutral, and nonideological and, unless a provision of law specifically requires the contrary, are subject to the restrictions contained in rules 281—41.138(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300).Related ARC(s): 7792C28141.414 Reserved.28141.415 Reserved.28141.416 Reserved.28141.417 Reserved.28141.418 Reserved.28141.419 Reserved.28141.420 Reserved.28141.421 Reserved.28141.422 Reserved.28141.423 Reserved.28141.424 Reserved.28141.425 Reserved.28141.426 Reserved.28141.427 Reserved.28141.428 Reserved.28141.429 Reserved.28141.430 Reserved.28141.431 Reserved.28141.432 Reserved.28141.433 Reserved.28141.434 Reserved.28141.435 Reserved.28141.436 Reserved.28141.437 Reserved.28141.438 Reserved.28141.439 Reserved.28141.440 Reserved.28141.441 Reserved.28141.442 Reserved.28141.443 Reserved.28141.444 Reserved.28141.445 Reserved.28141.446 Reserved.28141.447 Reserved.28141.448 Reserved.28141.449 Reserved.28141.450 Reserved.28141.451 Reserved.28141.452 Reserved.28141.453 Reserved.28141.454 Reserved.28141.455 Reserved.28141.456 Reserved.28141.457 Reserved.28141.458 Reserved.28141.459 Reserved.28141.460 Reserved.28141.461 Reserved.28141.462 Reserved.28141.463 Reserved.28141.464 Reserved.28141.465 Reserved.28141.466 Reserved.28141.467 Reserved.28141.468 Reserved.28141.469 Reserved.28141.470 Reserved.28141.471 Reserved.28141.472 Reserved.28141.473 Reserved.28141.474 Reserved.28141.475 Reserved.28141.476 Reserved.28141.477 Reserved.28141.478 Reserved.28141.479 Reserved.28141.480 Reserved.28141.481 Reserved.28141.482 Reserved.28141.483 Reserved.28141.484 Reserved.28141.485 Reserved.28141.486 Reserved.28141.487 Reserved.28141.488 Reserved.28141.489 Reserved.28141.490 Reserved.28141.491 Reserved.28141.492 Reserved.28141.493 Reserved.28141.494 Reserved.28141.495 Reserved.28141.496 Reserved.28141.497 Reserved.28141.498 Reserved.28141.499 Reserved.DIVISION VIIPROCEDURAL SAFEGUARDS28141.500(256B, 34CFR300) Responsibility of SEA and other public agencies. The department shall ensure that each public agency establishes, maintains, and implements procedural safeguards that meet the requirements of rules 281—41.500(256B,34CFR300) to 281—41.536(256B,34CFR300).28141.501(256B, 34CFR300) Opportunity to examine records; parent participation in meetings. 41.501(1) Opportunity to examine records. The parents of a child with a disability must be afforded, in accordance with the procedures of rules 281—41.613(256B,34CFR300) to 281—41.621(256B,34CFR300), an opportunity to inspect and review all education records with respect to: a. The identification, evaluation, and educational placement of the child; and b. The provision of FAPE to the child. 41.501(2) Parent participation in meetings. a. The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to: (1) The identification, evaluation, and educational placement of the child; and (2) The provision of FAPE to the child. b. Each public agency must provide notice consistent with paragraphs 41.322(1)“a” and 41.322(2)“b” to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph 41.501(2)“a.” c. A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting. 41.501(3) Parent involvement in placement decisions. a. Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent’s child. b. In implementing the requirements of paragraph 41.501(3)“a,” the public agency must use procedures consistent with the procedures described in subrule 41.322(1) to paragraph 41.322(2)“a.” c. If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency must use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing. d. A placement decision may be made by a group without the involvement of a parent, if the public agency is unable to obtain the parent’s participation in the decision. In this case, the public agency must have a record of its attempt to ensure parental involvement.Related ARC(s): 7792C28141.502(256B, 34CFR300) Independent educational evaluation. 41.502(1) General. a. The parents of a child with a disability have the right to obtain an independent educational evaluation of the child, subject to subrules 41.502(2) to 41.502(5). b. Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained and the agency criteria applicable for independent educational evaluations as set forth in subrule 41.502(5). c. For the purposes of this division: (1) “Independent educational evaluation” means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and (2) “Public expense” means that the AEA either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent. 41.502(2) Parent right to evaluation at public expense. a. A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the AEA, subject to the conditions in paragraphs 41.502(2)“b” to “d.” b. If a parent requests an independent educational evaluation at public expense, the AEA must, without unnecessary delay, either: (1) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (2) Ensure that an independent educational evaluation is provided at public expense, unless the AEA demonstrates in a hearing pursuant to these rules that the evaluation obtained by the parent did not meet agency criteria. c. If the AEA files a due process complaint notice to request a hearing and the final decision is that the AEA’s evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. d. If a parent requests an independent educational evaluation, the AEA may ask for the parent’s reason why the parent objects to the public evaluation. However, the AEA may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation. e. A parent is entitled to only one independent educational evaluation at public expense each time a public agency conducts an evaluation with which the parent disagrees. 41.502(3) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with a public agency an evaluation obtained at private expense, the results of the evaluation: a. Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and b. May be presented by any party as evidence at a hearing on a due process complaint under this chapter regarding that child. 41.502(4) Requests for evaluations by administrative law judges. If an administrative law judge requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense. 41.502(5) Agency criteria. a. If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. b. Except for the criteria described in paragraph 41.502(5)“a,” a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.Related ARC(s): 7792C28141.503(256B, 34CFR300) Prior notice by the public agency; content of notice. 41.503(1) Notice. Written notice that meets the requirements of subrule 41.503(2) must be given to the parents of a child with a disability within a reasonable time before the public agency: a. Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or b. Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. 41.503(2) Content of notice. The notice required under subrule 41.503(1) must include the following: a. A description of the action proposed or refused by the agency; b. An explanation of why the agency proposes or refuses to take the action; c. A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; d. A statement that the parents of a child with a disability have protection under the procedural safeguards of this chapter and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; e. Sources for parents to contact to obtain assistance in understanding the provisions of this chapter; f. A description of other options that the IEP team considered and the reasons why those options were rejected; and g. A description of other factors that are relevant to the agency’s proposal or refusal. 41.503(3) Notice in understandable language. a. The notice required under subrule 41.503(1) must be written in language understandable to the general public, and must be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. b. If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure the following: (1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication; (2) The parent understands the content of the notice; and (3) There is written evidence that the requirements in subparagraphs 41.503(3)“b”(1) and (2) have been met.Related ARC(s): 7792C28141.504(256B, 34CFR300) Procedural safeguards notice. 41.504(1) General. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only once a school year, except that a copy also must be given to the parents as follows: a. Upon initial referral or parent request for evaluation; b. Upon receipt of the first state complaint under rules 281—41.151(256B,34CFR300) to 281—41.153(256B,34CFR300) and upon receipt of the first due process complaint under rule 281—41.507(256B,34CFR300) in a school year; c. In accordance with the discipline procedures in subrule 41.530(8); and d. Upon request by a parent. 41.504(2) Internet website. A public agency may place a current copy of the procedural safeguards notice on its Internet website if a website exists. 41.504(3) Contents. The procedural safeguards notice must include a full explanation of all the procedural safeguards available under this chapter relating to the following: a. Independent educational evaluations; b. Prior written notice; c. Parental consent; d. Access to education records; e. Opportunity to present and resolve complaints through the due process complaint and state complaint procedures, and must explain: (1) The time period in which to file a complaint; (2) The opportunity for the agency to resolve the complaint; and (3) The difference between the due process complaint and the state complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures; f. The availability of mediation; g. The child’s placement during the pendency of any due process complaint; h. Procedures for students who are subject to placement in an interim alternative educational setting; i. Requirements for unilateral placement by parents of children in private schools at public expense; j. Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations; k. Civil actions, including the time period in which to file those actions; and l. Attorneys’ fees. 41.504(4) Notice in understandable language. The notice required under subrule 41.504(1) must meet the requirements of subrule 41.503(3). 41.504(5) “Summaries” of procedural safeguards limited. An AEA or LEA may only provide a document summarizing the procedural safeguards notice if that document has been approved by the department. Any summary is to inform parents that the summary is only provided for the convenience of the reader and is not a replacement for the procedural safeguards notice. Any approved summary of the procedural safeguards notice will be given along with the procedural safeguards notice and will not be given in place of the procedural safeguards notice.Related ARC(s): 7792C28141.505(256B, 34CFR300) Electronic mail. A parent of a child with a disability may elect to receive notices required by these rules by an electronic mail communication, if the public agency makes that option available.28141.506(256B, 34CFR300) Mediation. 41.506(1) General. Each public agency must ensure that procedures are established and implemented to allow parties involved in disputes relating to any matter under this chapter, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process. 41.506(2) Requirements. The procedures must meet the following requirements: a. The procedures must ensure that the mediation process: (1) Is voluntary on the part of the parties; (2) Is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any other rights afforded under Part B of the Act; and (3) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques. b. A public agency may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party: (1) Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the state established under Section 671 or 672 of the Act; and (2) Who would explain the benefits of, and encourage the use of, the mediation process to the parents. c. State responsibility for mediation. (1) The state must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. (2) The SEA must select mediators on a random, rotational, or other impartial basis. d. The state must bear the cost of the mediation process, including the costs of meetings described in paragraph 41.506(2)“b.” e. Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute. f. If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that: (1) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and (2) Is signed by both the parent and a representative of the agency who has the authority to bind the agency. g. A written, signed mediation agreement is enforceable in any state court of competent jurisdiction or in a district court of the United States. h. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any federal court or state court. 41.506(3) Impartiality of mediator. a. An individual who serves as a mediator under this chapter: (1) May not be an employee of the SEA or the LEA that is involved in the education or care of the child; and (2) Must not have a personal or professional interest that conflicts with the person’s objectivity. b. A person who otherwise qualifies as a mediator is not an employee of an LEA or state agency described under rule 281—41.228(256B,34CFR300) solely because the person is paid by the agency to serve as a mediator. 41.506(4) Mediation procedures. A request for mediation filed before the filing of a due process complaint shall be conducted according to the procedures described in rule 281—41.1002(256B,34CFR300). 41.506(5) Rule of construction. The department shall accept documents captioned as requests for a “preappeal conference” as requests for mediation prior to the filing of a due process complaint.Related ARC(s): 7792C28141.507(256B, 34CFR300) Filing a due process complaint. 41.507(1) General. a. Subject matter of due process complaint. A parent or a public agency may file a due process complaint on any of the matters described in subrule 41.503(1) relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child. b. The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, except that the exceptions to the timeline described in subrule 41.511(6) apply to the timeline in this rule. 41.507(2) Information for parents. The public agency must inform the parent of any free or low-cost legal and other relevant services available in the area if the parent requests the information or the parent or the agency files a due process complaint under this rule. 41.507(3) Synonymous term. Whenever the term “request for due process hearing” is used in prior department rules and documents, that term shall be construed to mean “due process complaint.”28141.508(256B, 34CFR300) Due process complaint. 41.508(1) General. A due process complaint shall be provided to the department, and a copy shall be provided to each party to the complaint. 41.508(2) Content of complaint. The due process complaint required in subrule 41.508(1) must include the following information: a. The name of the child; b. The address of the residence of the child; c. The name of the school the child is attending; d. In the case of a homeless child or youth within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11434a(2), available contact information for the child and the name of the school the child is attending; e. A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and f. A proposed resolution of the problem to the extent known and available to the party at the time. 41.508(3) Notice required before a hearing on a due process complaint. A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements of subrule 41.508(2). 41.508(4) Sufficiency of complaint. a. General. The due process complaint required by this rule must be deemed sufficient unless the party receiving the due process complaint notifies the administrative law judge and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in subrule 41.508(2). b. Determination. Within five days of receipt of notification under paragraph 41.508(4)“a,” the administrative law judge must make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of subrule 41.508(2) and must immediately notify the parties in writing of that determination. c. Amending due process complaint. A party may amend its due process complaint only if: (1) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to rule 281—41.510(256B,34CFR300); or (2) The administrative law judge grants permission, except that the administrative law judge may only grant permission to amend at any time not later than five days before the due process hearing begins. d. Timelines after amendment. If a party files an amended due process complaint, the timelines for the resolution meeting in subrule 41.510(1) and the time period to resolve in subrule 41.510(2) begin again with the filing of the amended due process complaint. 41.508(5) LEA response to a due process complaint. a. General. If the LEA has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint, the LEA must, within ten days of receiving the due process complaint, send to the parent a response that includes the following: (1) An explanation of why the agency proposed or refused to take the action raised in the due process complaint; (2) A description of other options that the IEP team considered and the reasons why those options were rejected; (3) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and (4) A description of the other factors that are relevant to the agency’s proposed or refused action. b. Rule of construction. A response by an LEA under paragraph 41.508(5)“a” shall not be construed to preclude the LEA from asserting that the parent’s due process complaint was insufficient, where appropriate. 41.508(6) Other party response to a due process complaint. Except as provided in subrule 41.508(5), the party receiving a due process complaint must, within ten days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.Related ARC(s): 7792C28141.509(256B, 34CFR300) Model forms. 41.509(1) Forms available. The department shall develop model forms to assist parents and public agencies in filing a due process complaint and to assist parents and other parties in filing a state complaint; however, the department or LEA may not require the use of the model forms. 41.509(2) Use of forms. Parents, public agencies, and other parties may use the appropriate model form described in subrule 41.509(1), or another form or other document, so long as the form or document that is used meets, as appropriate, the content requirements in subrule 41.508(2) for filing a due process complaint or the requirements in subrule 41.153(2) for filing a state complaint.Related ARC(s): 7792C28141.510(256B, 34CFR300) Resolution process. 41.510(1) Resolution meeting. a. General. Within 15 days of receiving notice of the parent’s due process complaint and prior to the initiation of a due process hearing, the LEA must convene a meeting with the parent and the relevant member or members of the IEP team who have specific knowledge of the facts identified in the due process complaint that: (1) Includes a representative of the public agency who has decision-making authority on behalf of that agency; and (2) May not include an attorney of the LEA unless the parent is accompanied by an attorney. b. Purpose of meeting. The purpose of the meeting is for the parent of the child to discuss the due process complaint and the facts that form the basis of the due process complaint so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint. c. When meeting not necessary. The meeting described in paragraphs 41.510(1)“a” and “b” need not be held if the parent and the LEA agree in writing to waive the meeting, or the parent and the LEA agree to use the mediation process described in rule 281—41.506(256B,34CFR300). d. Determining relevant members of IEP team. The parent and the LEA determine the relevant members of the IEP team to attend the meeting. 41.510(2) Resolution period. a. General. If the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur. b. Timeline for decision. Except as provided in subrule 41.510(3), the timeline for issuing a final decision under rule 281—41.515(256B,34CFR300) begins at the expiration of this 30-day period. c. Failure of parent to participate: delay of timeline. Except where the parties have jointly agreed to waive the resolution process or to use mediation, the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held. d. Failure of parent to participate: dismissal of complaint. If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented using the procedures in subrule 41.322(4), the LEA may, at the conclusion of the 30-day period, request that the administrative law judge dismiss the parent’s due process complaint. e. Failure of LEA to hold meeting. If the LEA fails to hold the resolution meeting specified in subrule 41.510(1) within 15 days of receiving notice of a parent’s due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the administrative law judge to begin the due process hearing timeline. 41.510(3) Adjustments to 30-day resolution period. The 45-day timeline for the due process hearing in subrule 41.515(1) starts the day after one of the following events: a. Both parties agree in writing to waive the resolution meeting; b. After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; c. If all parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later the parent or public agency withdraws from the mediation process. 41.510(4) Written settlement agreement. If a resolution to the dispute is reached at the meeting described in paragraphs 41.510(1)“a” and “b,” the parties must execute a legally binding agreement that is: a. Signed by both the parent and a representative of the agency who has the authority to bind the agency; and b. Enforceable in any state court of competent jurisdiction or in a district court of the United States, or, by the department, including but not limited to through the state complaint process. 41.510(5) Agreement review period. If the parties execute an agreement pursuant to subrule 41.510(4), a party may void the agreement within three business days of the agreement’s execution.Related ARC(s): 7792C28141.511(256B, 34CFR300) Impartial due process hearing. 41.511(1) General. Whenever a due process complaint is received under this division, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing, consistent with the procedures in this chapter. 41.511(2) SEA responsible for conducting the due process hearing. The hearing described in subrule 41.511(1) must be conducted by the department. 41.511(3) Administrative law judge. a. Minimum qualifications. At a minimum, an administrative law judge: (1) Must not be an employee of the SEA or the LEA that is involved in the education or care of the child or a person having a personal or professional interest that conflicts with the person’s objectivity in the hearing; (2) Must possess knowledge of, and the ability to understand, the provisions of the Act, federal and state regulations pertaining to the Act, and legal interpretations of the Act by federal and state courts; (3) Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and (4) Must possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. b. Rule of construction. A person who otherwise qualifies to conduct a hearing under 41.511(3)“a” is not an employee of the agency solely because the person is paid by the agency to serve as an administrative law judge. c. SEA to maintain list of administrative law judges. The department shall keep a list of the persons who serve as administrative law judges. The list must include a statement of the qualifications of each of those persons. 41.511(4) Subject matter of due process hearings. The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process complaint filed under subrule 41.508(2), unless each of the other parties agrees otherwise. 41.511(5) Timeline for requesting a hearing. A parent or agency must request an impartial hearing on the due process complaint within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process complaint. 41.511(6) Exceptions to the timeline. The timeline described in subrule 41.511(5) does not apply to a parent if the parent was prevented from filing a due process complaint due to either of the following: a. Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or b. The LEA’s withholding of information from the parent that was required under this chapter to be provided to the parent.28141.512(256B, 34CFR300) Hearing rights. 41.512(1) General. Any party to a hearing conducted pursuant to the rules of this division and Division XII has the right to: a. Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; b. Present evidence and confront, cross-examine, and compel the attendance of witnesses; c. Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing; d. Obtain a written or, at the option of the parents, electronic, verbatim record of the hearing; and e. Obtain written or, at the option of the parents, electronic findings of fact and decisions. 41.512(2) Additional disclosure of information. a. At least five business days prior to a hearing conducted pursuant to subrule 41.511(1), each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. b. An administrative law judge may bar any party that fails to comply with paragraph 41.512(2)“a” from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. 41.512(3) Parental rights at hearings. Parents involved in hearings must be given the right to: a. Have the child who is the subject of the hearing present; b. Open the hearing to the public; and c. Have the record of the hearing and the findings of fact and decisions described in paragraphs 41.512(1)“d” and “e” provided at no cost to parents.Related ARC(s): 7792C28141.513(256B, 34CFR300) Hearing decisions. 41.513(1) Decision of administrative law judge on the provision of FAPE. a. Subject to paragraph 41.513(1)“b,” an administrative law judge’s determination of whether a child received FAPE must be based on substantive grounds. b. In matters alleging a procedural violation, an administrative law judge may find that a child did not receive FAPE only if the procedural inadequacies: (1) Impeded the child’s right to FAPE; (2) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the parent’s child; or (3) Caused a deprivation of educational benefit. c. Nothing in this subrule shall be construed to preclude an administrative law judge from ordering an LEA to comply with procedural requirements under this division. 41.513(2) Reserved. 41.513(3) Separate request for a due process hearing. Nothing in this division shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed. 41.513(4) Findings and decision to advisory panel and general public. The department, after deleting any personally identifiable information, must: a. Transmit the findings and decisions referred to in paragraph 41.512(1)“e” to the state advisory panel established under rule 281—41.167(256B,34CFR300); and b. Make those findings and decisions available to the public.Related ARC(s): 7792C28141.514(256B, 34CFR300) Finality of decision. A decision made in a hearing conducted pursuant to this division is final, except that any party involved in the hearing may appeal the decision by filing a civil action in state or federal court.28141.515(256B, 34CFR300) Timelines and convenience of hearings. 41.515(1) Timeline. The public agency must ensure that not later than 45 days after the expiration of the 30-day period under subrule 41.510(2) or the adjusted time periods described in subrule 41.510(3): a. A final decision is reached in the hearing; and b. A copy of the decision is mailed to each of the parties. 41.515(2) Reserved. 41.515(3) Extensions of time or continuances. An administrative law judge may grant specific extensions of time or continuances beyond the periods set out in subrule 41.515(1) at the request of either party. 41.515(4) Hearing time. Each hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved.Related ARC(s): 7792C28141.516(256B, 34CFR300) Civil action. 41.516(1) General. Any party aggrieved by the findings and decision made under this division has the right to bring a civil action with respect to the due process complaint notice requesting a due process hearing under this division. The action may be brought in any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. 41.516(2) Time limitation. The party bringing the action shall have 90 days from the date of the decision of the administrative law judge to file a civil action. 41.516(3) Additional requirements. In any action brought under subrule 41.516(1), the court: a. Receives the records of the administrative proceedings; b. Hears additional evidence at the request of a party; and c. Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate. 41.516(4) Jurisdiction of United States district courts. The district courts of the United States have jurisdiction of actions brought under Section 615 of the Act without regard to the amount in controversy. 41.516(5) Rule of construction. Nothing in Part B of the Act or this chapter restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under Section 615 of the Act, the procedures under rules 281—41.507(256B,34CFR300) and 281—41.514(256B,34CFR300) must be exhausted to the same extent as would be required had the action been brought under Section 615 of the Act.28141.517(256B, 34CFR300) Attorneys’ fees. 41.517(1) General. In any action or proceeding brought under Section 615 of the Act, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to any of the following: a. The prevailing party who is the parent of a child with a disability; b. To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or c. To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. 41.517(2) Prohibition on use of funds. a. Funds under Part B of the Act may not be used to pay attorneys’ fees or costs of a party related to any action or proceeding under Section 615 of the Act and this division. b. Paragraph 41.517(2)“a” does not preclude a public agency from using funds under Part B of the Act for conducting an action or proceeding under Section 615 of the Act. 41.517(3) Award of fees. A court awards reasonable attorneys’ fees under Section 615(i)(3) of the Act consistent with the following: a. Amount of fees. Fees awarded under Section 615(i)(3) of the Act must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this paragraph. b. When fees and costs may not be awarded. (1) Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if: 1. The offer is made within the time prescribed by Rule 68 of the federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins; 2. The offer is not accepted within ten days; and 3. The court or administrative law judge finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. (2) Attorneys’ fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the state, for a mediation described in rule 281—41.506(256B,34CFR300). (3) A meeting conducted pursuant to rule 281—41.510(256B,34CFR300) shall not be considered either of the following: 1. A meeting convened as a result of an administrative hearing or judicial action; or 2. An administrative hearing or judicial action for purposes of this rule. c. Exception to offer of settlement subrule. Notwithstanding subparagraph 41.517(3)“b”(1), an award of attorneys’ fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer. d. Reduction in attorney fees. Except as provided in paragraph 41.517(3)“e,” the court reduces, accordingly, the amount of the attorneys’ fees awarded under Section 615 of the Act, if the court finds that: (1) The parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy; (2) The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience; (3) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or (4) The attorney representing the parent did not provide to the LEA the appropriate information in the due process request notice in accordance with rule 281—41.508(256B,34CFR300). e. Exception to reduction in fees subrule. The provisions of paragraph 41.517(3)“d” do not apply in any action or proceeding if the court finds that the state or local agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of Section 615 of the Act.Related ARC(s): 7792C28141.518(256B, 34CFR300) Child’s status during proceedings. 41.518(1) General. Except as provided in rule 281—41.533(256B,34CFR300), during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under rule 281—41.507(256B,34CFR300), unless the state or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement. 41.518(2) Initial admission to public school. If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings. 41.518(3) Transition from Part C to Part B. If the complaint involves an application for initial services under this chapter from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has reached the age of three, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under subrule 41.300(2), then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency. 41.518(4) Administrative law judge decision. If the administrative law judge in a due process hearing conducted by the SEA agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the state and the parents for purposes of subrule 41.518(1). 41.518(5) Mediation requested prior to the filing of a due process complaint. Except as provided in rule 281—41.533(256B,34CFR300), during the pendency of any request for mediation filed prior to or in lieu of a due process complaint under rule 281—41.506(256B,34CFR300) and for ten days after any such mediation conference at which no agreement is reached, unless the state or local agency and the parents of the child agree otherwise, the child involved in any such mediation conference must remain in his or her current educational placement.Related ARC(s): 7792C28141.519(256B, 34CFR300) Surrogate parents. 41.519(1) General. Each public agency must ensure that the rights of a child are protected when: a. No parent as defined in rule 281—41.30(256B,34CFR300) can be identified; b. The public agency, after reasonable efforts, cannot locate a parent; c. The child is a ward of the state under the laws of the state; or d. The child is an unaccompanied homeless youth as defined in Section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)). 41.519(2) Duties of public agency. The duties of a public agency under subrule 41.519(1) include the assignment of an individual to act as a surrogate for the parents. This must include a method for determining whether a child needs a surrogate parent and for assigning a surrogate parent to the child. 41.519(3) Wards of the state. In the case of a child who is a ward of the state, the surrogate parent alternatively may be appointed by the judge presiding in the child’s case, provided that the surrogate meets the requirements in subparagraph 41.519(4)“b”(1) and subrule 41.519(5). 41.519(4) Criteria for selection of surrogate parents. a. The public agency may select a surrogate parent in any way permitted under state law. b. Public agencies must ensure that a person selected as a surrogate parent: (1) Is not an employee of the SEA, the LEA, or any other public or private agency that is involved in the education or care of the child; (2) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and (3) Has knowledge and skills that ensure adequate representation of the child. 41.519(5) Nonemployee requirement; compensation. A person otherwise qualified to be a surrogate parent under subrule 41.519(4) is not an employee of the agency solely because the person is paid by the agency to serve as a surrogate parent. 41.519(6) Unaccompanied homeless youth. In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to subparagraph 41.519(4)“b”(1), until a surrogate parent can be appointed that meets all of the requirements of subrule 41.519(4). 41.519(7) Surrogate parent responsibilities. The surrogate parent may represent the child in all matters relating to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child. 41.519(8) Training of surrogate parents. Training will be conducted as necessary by each AEA using a training procedure approved by the department, which includes rights and responsibilities of a surrogate parent, sample forms used by LEAs and AEAs, specific needs of individuals with disabilities and resources for legal and instructional technical assistance. The department will provide continuing education and assistance to AEAs upon request. 41.519(9) SEA responsibility. The department must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent.Related ARC(s): 7792C28141.520(256B, 34CFR300) Transfer of parental rights at age of majority. 41.520(1) General. The state provides, when a child with a disability (except for a child with a disability who has been determined to be incompetent under state law) reaches the age of majority under Iowa Code section 599.1, all of the following: a. General rule. (1) The public agency must provide any notice required by this chapter to both the child and the parents; and (2) All rights accorded to parents under Part B of the Act transfer to the child. b. Special rule: incarcerated eligible individuals. All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, state or local correctional institution. c. Notice requirement. Whenever a state provides for the transfer of rights under Part B of the Act and this chapter pursuant to paragraph 41.520(1)“a” or “b,” the agency must notify the child and the parents of the transfer of rights. 41.520(2) Special rules. If a court appoints a guardian for an eligible individual who has attained the age of majority under subrule 41.520(1) and the court determines all decisions shall be made by the guardian or specifically determines all educational decisions should be made by the guardian, then rights under subrule 41.520(1) do not transfer but are exercised pursuant to any applicable orders of the court. If a court determines a child who has attained the age of majority under subrule 41.520(1) does not have capacity to make educational decisions under any other applicable statute, then rights under subrule 41.520(1) do not transfer and are exercised by the child’s parent or pursuant to court order. If and when state law provides that a competent authority may determine that an eligible individual who has attained the age of majority under subrule 41.520(1) and who has not been found incompetent by any court under this subrule, the department shall establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child’s eligibility under Part B of the Act if the child can be determined by the competent authority, by clear and convincing evidence, not to have the ability to provide informed consent with respect to the child’s educational program.Related ARC(s): 7792C28141.521 Reserved.28141.522 Reserved.28141.523 Reserved.28141.524 Reserved.28141.525 Reserved.28141.526 Reserved.28141.527 Reserved.28141.528 Reserved.28141.529 Reserved.28141.530(256B, 34CFR300) Authority of school personnel. 41.530(1) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this rule, is appropriate for a child with a disability who violates a code of student conduct. 41.530(2) General. a. School personnel under this rule may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten consecutive school days, to the extent those alternatives are applied to children without disabilities, and for additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement under rule 281—41.536(256B,34CFR300). b. After a child with a disability has been removed from his or her current placement for ten school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under subrule 41.530(4). 41.530(3) Additional authority. For disciplinary changes in placement that would exceed ten consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to subrule 41.530(5), school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in subrule 41.530(4). 41.530(4) Services. a. A child with a disability who is removed from the child’s current placement pursuant to subrule 41.530(3) or 41.530(7) must receive the following: (1) Educational services, as provided in subrule 41.101(1), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and (2) As appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur. b. The services required by paragraphs 41.530(4)“a” and “c” to “e” may be provided in an interim alternative educational setting. c. A public agency is required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for ten school days or less in that school year, only if it provides services to a child without disabilities who is similarly removed. d. After a child with a disability has been removed from his or her current placement for ten school days in the same school year, if the current removal is for not more than ten consecutive school days and is not a change of placement under rule 281—41.536(256B,34CFR300), school personnel, in consultation with at least one of the child’s teachers, shall determine the extent to which services are needed, as provided in subrule 41.101(1), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. e. If the removal is a change of placement under rule 281—41.536(256B,34CFR300), the child’s IEP team determines appropriate services under paragraph 41.530(4)“a.” 41.530(5) Manifestation determination. a. Within ten school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the AEA, the LEA, the parent, and relevant members of the child’s IEP team, as determined by the parent and the AEA and LEA, must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine: (1) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or (2) If the conduct in question was the direct result of the failure by the AEA or LEA to implement the IEP. b. The conduct must be determined to be a manifestation of the child’s disability if the AEA, the LEA, the parent, and relevant members of the child’s IEP team determine that a condition in either subparagraph 41.530(5)“a”(1) or (2) was met. c. If the AEA, the LEA, the parent, and relevant members of the child’s IEP team determine the condition described in subparagraph 41.530(5)“a”(2) was met, the public agency must take immediate steps to remedy those deficiencies. 41.530(6) Determination that behavior was a manifestation. If the AEA, the LEA, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the child’s disability, the IEP team must proceed as follows: a. Conduct a functional behavioral assessment, unless the AEA or LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or b. If a behavioral intervention plan already has been developed, review the behavioral intervention plan and modify it, as necessary, to address the behavior; and c. Except as provided in subrule 41.530(7), return the child to the placement from which the child was removed, unless the parent and the public agency agree to a change of placement as part of the modification of the behavioral intervention plan. 41.530(7) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child: a. Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA; b. Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or c. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA. 41.530(8) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision and provide the parents the procedural safeguards notice described in rule 281—41.504(256B,34CFR300). 41.530(9) Definitions. For purposes of this rule, the following definitions apply: a. Controlled substance. “Controlled substance” means a drug or other substance identified under Schedule I, II, III, IV, or V in Section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). b. Illegal drug. “Illegal drug” means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional or that is legally possessed or used under any other authority under that Act or under any other provision of federal law. c. Serious bodily injury. “Serious bodily injury” has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of Section 1365 of Title 18, United States Code. d. Weapon. “Weapon” has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of Section 930 of Title 18, United States Code. A “weapon” under Iowa law is not necessarily a weapon for purposes of this rule unless it meets this definition of a “dangerous weapon.”Related ARC(s): 7792C28141.531(256B, 34CFR300) Determination of setting. The child’s IEP team determines the interim alternative educational setting for services under subrule 41.530(3), paragraph 41.530(4)“e,” and subrule 41.530(7).Related ARC(s): 7792C28141.532(256B, 34CFR300) Appeal. 41.532(1) General. The parent of a child with a disability who disagrees with any decision regarding placement under rules 281—41.530(256B,34CFR300) and 281—41.531(256B,34CFR300), or the manifestation determination under subrule 41.530(5), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to rule 281—41.507(256B,34CFR300) and subrules 41.508(1) and 41.508(2). 41.532(2) Authority of administrative law judge. a. An administrative law judge under rule 281—41.511(256B,34CFR300) hears and makes a determination regarding an appeal under subrule 41.532(1). b. In making the determination under subrule 41.532(1), the administrative law judge may do either of the following: (1) Return the child with a disability to the placement from which the child was removed if the administrative law judge determines that the removal was a violation of rule 281—41.530(256B,34CFR300) or that the child’s behavior was a manifestation of the child’s disability; or (2) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the administrative law judge determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. c. The procedures under subrule 41.532(1) and paragraphs 41.532(2)“a” and “b” may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others. 41.532(3) Expedited due process hearing. a. Whenever a hearing is requested under subrule 41.532(1), the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of rule 281—41.507(256B,34CFR300), subrules 41.508(1) to 41.508(3), and rules 281—41.510(256B,34CFR300) to 281—41.514(256B,34CFR300), except as provided in paragraphs 41.532(3)“b” and “c.” b. The department is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The administrative law judge must make a determination within ten school days after the hearing. c. Unless the parents and LEA agree in writing to waive the resolution meeting described in this paragraph, or agree to use the mediation process described in rule 281—41.506(256B,34CFR300), the procedure is as follows: (1) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and (2) The due process hearing may proceed unless the matter has been resolved to the satisfaction of all parties within 15 days of the receipt of the due process complaint. d. Reserved. e. The decisions on expedited due process hearings are appealable consistent with rule 281—41.514(256B,34CFR300).Related ARC(s): 7792C28141.533(256B, 34CFR300) Placement during appeals and mediations. When an appeal under rule 281—41.532(256B,34CFR300) or a request for mediation under rules 281—41.506(256B,34CFR300) and 281—41.1002(256B,34CFR300) has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the administrative law judge or until the expiration of the time period specified in subrule 41.530(3) or 41.530(7), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.Related ARC(s): 7792C28141.534(256B, 34CFR300) Protections for children not determined eligible for special education and related services. 41.534(1) General. A child who has not been determined to be eligible for special education and related services under this chapter and who has engaged in behavior that violated a code of student conduct may assert any of the protections provided for in this chapter if the public agency had knowledge, as determined in accordance with subrule 41.534(2), that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 41.534(2) Basis of knowledge. A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred any of the following occurred: a. The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the child that the child is in need of special education and related services; b. The parent of the child requested an evaluation of the child pursuant to this chapter; or c. The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency. 41.534(3) Exception. A public agency would not be deemed to have knowledge under subrule 41.534(2) under the following conditions: a. The parent of the child has not allowed an evaluation of the child pursuant to this chapter or has refused services under Part B of the Act or this chapter; or b. The child has been evaluated in accordance with this chapter and determined not to be a child with a disability under Part B of the Act and this chapter. 41.534(4) Conditions that apply if no basis of knowledge. a. General. If a public agency does not have knowledge that a child is a child with a disability, in accordance with subrules 41.534(2) and 41.534(3), prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with paragraph 41.534(4)“b.” b. Request for evaluation. (1) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under rule 281—41.530(256B,34CFR300), the evaluation must be conducted in an expedited manner. (2) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services. (3) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency must provide special education and related services in accordance with Part B of the Act and this chapter, including the requirements of rules 281—41.530(256B,34CFR300) to 281—41.536(256B,34CFR300) and Section 612(a)(1)(A) of the Act.Related ARC(s): 7792C28141.535(256B, 34CFR300) Referral to and action by law enforcement and judicial authorities. 41.535(1) Rule of construction. Nothing in Part B of the Act or this chapter prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability. 41.535(2) Transmittal of records. a. An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime. b. An agency reporting a crime under this rule may transmit copies of the child’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act, such as by obtaining consent (34 CFR Section 99.30) or in instances where disclosure without consent is permitted (34 CFR Section 99.31).28141.536(256B, 34CFR300) Change of placement because of disciplinary removals. 41.536(1) General. For purposes of removals of a child with a disability from the child’s current educational placement under rules 281—41.530(256B,34CFR300) to 281—41.535(256B,34CFR300), a change of placement occurs under the following circumstances: a. The removal is for more than ten consecutive school days; or b. The child has been subjected to a series of removals that constitute a pattern based on the following: (1) The series of removals total more than ten school days in a school year; (2) The child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and (3) Additional factors, such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 41.536(2) Rules of construction. a. The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement. b. This determination is subject to review through due process and judicial proceedings. c. Nothing in this rule shall be construed to prohibit LEAs from establishing policies that a change of placement occurs on the eleventh cumulative day of removal, regardless of the factors set forth in paragraph 41.536(1)“b.” 41.536(3) In-school suspensions and other actions. In determining whether an in-school suspension or other disciplinary action is to be considered a removal for purposes of this rule, an in-school suspension or other disciplinary action will not be considered a removal if all three of the following questions are answered in the affirmative: a. Will the child be able to appropriately participate in the general education curriculum? b. Will the child be able to receive the services specified in the child’s IEP? c. Will the child be able to participate with children without disabilities to the extent provided in the child’s current placement?Related ARC(s): 7792C28141.537(256B, 34CFR300) State enforcement mechanisms. Notwithstanding paragraphs 41.506(2)“g” and 41.510(4)“b,” which provide for judicial enforcement of a written agreement reached as a result of mediation or a resolution meeting, there is nothing in Part B of the Act that would prevent the department from using other mechanisms to seek enforcement of that agreement, such as the state complaint procedure, provided that use of those mechanisms is not mandatory and does not delay or deny a party the right to seek enforcement of the written agreement in a state court of competent jurisdiction or in a district court of the United States.Related ARC(s): 7792C28141.538 Reserved.28141.539 Reserved.28141.540 Reserved.28141.541 Reserved.28141.542 Reserved.28141.543 Reserved.28141.544 Reserved.28141.545 Reserved.28141.546 Reserved.28141.547 Reserved.28141.548 Reserved.28141.549 Reserved.28141.550 Reserved.28141.551 Reserved.28141.552 Reserved.28141.553 Reserved.28141.554 Reserved.28141.555 Reserved.28141.556 Reserved.28141.557 Reserved.28141.558 Reserved.28141.559 Reserved.28141.560 Reserved.28141.561 Reserved.28141.562 Reserved.28141.563 Reserved.28141.564 Reserved.28141.565 Reserved.28141.566 Reserved.28141.567 Reserved.28141.568 Reserved.28141.569 Reserved.28141.570 Reserved.28141.571 Reserved.28141.572 Reserved.28141.573 Reserved.28141.574 Reserved.28141.575 Reserved.28141.576 Reserved.28141.577 Reserved.28141.578 Reserved.28141.579 Reserved.28141.580 Reserved.28141.581 Reserved.28141.582 Reserved.28141.583 Reserved.28141.584 Reserved.28141.585 Reserved.28141.586 Reserved.28141.587 Reserved.28141.588 Reserved.28141.589 Reserved.28141.590 Reserved.28141.591 Reserved.28141.592 Reserved.28141.593 Reserved.28141.594 Reserved.28141.595 Reserved.28141.596 Reserved.28141.597 Reserved.28141.598 Reserved.28141.599 Reserved.DIVISION VIIIMONITORING, ENFORCEMENT, CONFIDENTIALITY, AND PROGRAM INFORMATION28141.600(256B, 34CFR300) State monitoring and enforcement. 41.600(1) General. The state must monitor the implementation of Part B of the Act and this chapter, enforce this chapter in accordance with rule 281—41.604(256B,34CFR300), and annually report on performance under Part B of the Act and this chapter. 41.600(2) Primary focus of monitoring activity. The primary focus of the state’s monitoring activities must be on the following: a. Improving educational results and functional outcomes for all children with disabilities; and b. Ensuring that public agencies meet the program requirements under Part B of the Act, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities. 41.600(3) Indicators of performance and compliance. As a part of its responsibilities under subrule 41.600(1), the state must use quantifiable indicators and such qualitative indicators as are needed to adequately measure performance in the priority areas identified in subrule 41.600(4) and the indicators established by the Secretary for the state performance plans. 41.600(4) Priority indicators. The state must monitor the LEAs located in the state, using quantifiable indicators in each of the following priority areas and using such qualitative indicators as are needed to adequately measure performance in those areas: a. Provision of FAPE in the least restrictive environment. b. State exercise of general supervision, including child find, effective monitoring, the use of resolution meetings, mediation, and a system of transition services as defined in rule 281—41.43(256B,34CFR300) and in 20 U.S.C. 1437(a)(9). c. Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification. 41.600(5) Correction of noncompliance. In exercising its monitoring responsibilities under subrule 41.600(4), the state must ensure that when it identifies noncompliance with the requirements of this chapter by an LEA, the noncompliance is corrected as soon as possible, but in no case later than one year after the state’s identification of the LEA’s noncompliance.Related ARC(s): 7792C28141.601(256B, 34CFR300) State performance plans and data collection. 41.601(1) General. Each state must have in place a performance plan that evaluates the state’s efforts to implement the requirements and purposes of Part B of the Act and describes how the state will improve such implementation. a. Each state must submit the state’s performance plan to the Secretary for approval in accordance with the approval process described in Section 616(c) of the Act. b. Each state must review its state performance plan at least once every six years and submit any amendments to the Secretary. c. As part of the state performance plan, each state must establish measurable and rigorous targets for the indicators established by the Secretary under the priority areas described in 34 CFR Section 300.600(d). 41.601(2) Data collection. a. The state must collect valid and reliable information as needed to report annually to the Secretary on the indicators established by the Secretary for the state performance plans. b. If the Secretary permits states to collect data on specific indicators through state monitoring or sampling, and the state collects the data through state monitoring or sampling, the state must collect data on those indicators for each LEA at least once during the period of the state performance plan.28141.602(256B, 34CFR300) State use of targets and reporting. 41.602(1) General. The state shall use the targets established in the state’s performance plan under rule 281—41.601(256B,34CFR300) and the priority areas described in subrule 41.600(4) to analyze the performance of each LEA. 41.602(2) Public reporting and privacy. a. Public report. The state must: (1) Report annually to the public on the performance of each LEA located in the state on the targets in the state’s performance plan as soon as practicable but no later than 120 days following the state’s submission of its annual performance report under paragraph 41.602(2)“b”; and (2) Make the state’s performance plan, the state’s annual performance reports, and annual reports on the performance of each LEA located in the state available through public means, including, at a minimum, by posting these documents on the website of the department, distribution to the media, and distribution through public agencies. (3) If the state collects performance data through state monitoring or sampling, the state must include in its report under subparagraph 41.602(2)“a”(1) the most recently available performance data on each LEA, and the date the data were obtained. b. State performance report. The state shall report annually to the Secretary on the performance of the state under the state’s performance plan. c. Privacy. The state shall not report to the public or the Secretary any information on performance that would result in the disclosure of personally identifiable information about individual children or where the available data are insufficient to yield statistically reliable information.Related ARC(s): 7792C28141.603(256B, 34CFR300) Department review and determination regarding public agency performance. 41.603(1) Review. The state shall annually review the performance of each LEA and AEA, including but not limited to data on indicators identified in the state’s performance plan, information obtained through monitoring visits, and any other public information made available. 41.603(2) Determination. Based on the information obtained and reviewed by the state, the state shall determine whether each LEA and AEA: a. Meets the requirements and purposes of Part B of the Act and of this chapter; b. Needs assistance in implementing the requirements of Part B of the Act and of this chapter; c. Needs intervention in implementing the requirements of Part B of the Act and of this chapter; or d. Needs substantial intervention in implementing the requirements of Part B of the Act and of this chapter. 41.603(3) Criteria for determination. The department shall develop criteria for making the determinations required by subrule 41.603(2). 41.603(4) Variance of determination. In making the determination required by subrule 41.603(2), the SEA in its discretion may adjust or vary from the criteria described in subrule 41.603(3) based on unusual, unanticipated, or extraordinary aggravating or mitigating factors, on a case-by-case basis. 41.603(5) Notice and opportunity for a hearing. For determinations made under paragraph 41.603(2)“a” or “b,” the state shall provide reasonable notice of its determination. For determinations made under paragraph 41.603(2)“c” or “d,” the state shall provide reasonable notice of its determination and may, in its sound discretion, grant an informal hearing to an AEA or LEA; however, if withholding of funds is a remedy associated with a particular determination, the state shall provide a hearing under rule 281—41.605(256B,34CFR300). Under any hearing granted under this rule or rule 281—41.605(256B,34CFR300), the AEA or LEA must demonstrate that the state abused its discretion in making the determination described in subrule 41.603(2).Related ARC(s): 7792C28141.604(256B, 34CFR300) Enforcement. 41.604(1) Needs assistance. If the state determines for two consecutive years that an LEA or AEA needs assistance under paragraph 41.603(2)“b” in implementing the requirements of Part B of the Act, the state shall take one or more of the following actions: a. Advise the LEA or AEA of available sources of technical assistance that may help the LEA or AEA to address the areas in which it needs assistance, which may include assistance from the Iowa department of education, other state agencies, technical assistance providers approved by the Secretary, and other federally funded and state-funded nonprofit agencies, and require it to work with appropriate entities. Such technical assistance may include any of the following: (1) The provision of advice by experts to address the areas in which the LEA or AEA needs assistance, including explicit plans for addressing the area for concern within a specified period of time; (2) Assistance in identifying and implementing professional development, instructional strategies, and methods of instruction that are based on scientifically based research; (3) Designating and using distinguished superintendents, principals, special education administrators, special education teachers and other teachers to provide advice, technical assistance, and support; and (4) Devising additional approaches to providing technical assistance, such as collaborating with institutions of higher education, educational service agencies, national centers of technical assistance supported under Part D of the Act, and private providers of scientifically based technical assistance. b. Identify the LEA or AEA as a high-risk grantee and impose special conditions on its grant under Part B of the Act. 41.604(2) Needs intervention. If the state determines for three or more consecutive years that an LEA or AEA needs intervention under paragraph 41.603(2)“c” in implementing the requirements of Part B of the Act, the following shall apply: a. The state may take any of the actions described in subrule 41.604(1). b. The state shall take one or more of the following actions: (1) Require the LEA or AEA to prepare a corrective action plan or improvement plan if the state determines that the LEA or AEA should be able to correct the problem within one year. (2) Withhold, in whole or in part, any further payments to the AEA or LEA under Part B of the Act. 41.604(3) Needs substantial intervention. Notwithstanding subrule 41.604(1) or 41.604(2), at any time that the state determines that an LEA or AEA needs substantial intervention in implementing the requirements of Part B of the Act or of this chapter or that there is a substantial failure to comply with any condition of an LEA’s eligibility or an AEA’s eligibility under Part B of the Act or this chapter, the state shall take one or more of the following actions: a. Withhold, in whole or in part, any further payments to the LEA or AEA under Part B of the Act. b. Refer the matter for appropriate enforcement action, which may include referral to the Iowa department of justice or the auditor of state. 41.604(4) Rule of construction. The listing of specific enforcement mechanisms in this rule shall not be construed to limit the enforcement mechanisms at the state’s disposal in its enforcement of this rule or any other rule in this chapter.Related ARC(s): 7792C28141.605(256B, 34CFR300) Withholding funds. 41.605(1) General. As a consequence of a determination made under rule 281—41.603(256B,34CFR300) or enforcement of any provision of Part B of the Act and this chapter, the state may withhold some or all of the funds from an AEA or LEA or a program or service of an AEA or LEA, or may direct an AEA to withhold all or some funds from an LEA or a program or service of an LEA. 41.605(2) Hearing. If the state intends to withhold funds, the state shall provide notice and an opportunity for a hearing to the AEA or LEA. If a hearing is requested, the state may suspend payments to an AEA or LEA, or suspend the authority of the AEA or LEA to obligate funds, or both, until a decision is made after the hearing. A hearing under this rule, which shall not be a contested case under Iowa Code chapter 17A, shall be requested within 30 days of notice of withholding by requesting a hearing before the director of the Iowa department of education or the director’s designee. The presiding officer at the hearing shall consider the purposes of Part B of the Act and of this chapter and shall determine whether the state abused its discretion in its decision under subrule 41.605(1). 41.605(3) Reinstatement. If the LEA or AEA substantially rectifies the condition that prompted the initial withholding under subrule 41.605(1), then the state may reinstate payments to the LEA or AEA. If an LEA or AEA disagrees with the state’s decision that it has not substantially rectified the condition that prompted the initial withholding under subrule 41.605(1), the LEA or AEA may request a hearing under subrule 41.605(2).28141.606(256B, 34CFR300) Public attention. Any LEA or AEA that has received notice under paragraph 41.603(2)“b,” “c,” or “d” must, by means of a public notice, take such measures as may be necessary to notify the public within the LEA or AEA of such notice and of the pendency of an action taken pursuant to rule 281—41.604(256B,34CFR300).Related ARC(s): 7792C28141.607 Reserved.28141.608(256B, 34CFR300) State enforcement. 41.608(1) Prohibition on reduction of maintenance of effort. If the state determines that an LEA or AEA is not meeting the requirements of Part B of the Act, including the targets in the state’s performance plan, the state must prohibit the LEA or AEA from reducing its maintenance of effort under rule 281—41.203(256B,34CFR300) for any fiscal year. 41.608(2) Rule of construction. Nothing in this chapter shall be construed to restrict the state from utilizing any other authority available to it to monitor and enforce the requirements of Part B of the Act or of this chapter.28141.609(256B, 34CFR300) State consideration of other state or federal laws. In making the determinations required by rule 281—41.603(256B,34CFR300), in ordering actions pursuant to rule 281—41.604(256B,34CFR300), and in taking any other action under this chapter, the department may consider whether any agency has complied with any other applicable state or federal law, including but not limited to education law or disability law, or with any corrective action ordered by any competent authority for violation of any such law.28141.610(256B, 34CFR300) Confidentiality. The state shall take appropriate action, in accordance with Section 444 of the General Education Provisions Act, to ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the state and by LEAs and AEAs pursuant to Part B of the Act and this chapter, and consistent with rules 281—41.611(256B,34CFR300) to 281—41.626(256B,34CFR300).28141.611(256B, 34CFR300) Definitions. The following definitions apply to rules 281—41.611(256B,34CFR300) to 281—41.625(256B,34CFR300)."Destruction" means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.
"Education records" means the type of records covered under the definition of “education records” in 34 CFR Part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).
"Participating agency" means any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the Act or this chapter.
Related ARC(s): 7792C28141.612(256B, 34CFR300) Notice to parents. 41.612(1) General. The department must give notice that is adequate to fully inform parents about the requirements of rule 281—41.123(256B,34CFR300), including the following information: a. A description of the extent that the notice is given in the native languages of the various population groups in the state; b. A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the state intends to use in gathering the information, including the sources from whom information is gathered, and the uses to be made of the information; c. A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and d. A description of all of the rights of parents and children regarding this information, including the rights under FERPA and implementing regulations in 34 CFR Part 99. 41.612(2) Media announcements required. Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the state of the activity.28141.613(256B, 34CFR300) Access rights. 41.613(1) General. Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this chapter. The agency must comply with a request without unnecessary delay and before any meeting regarding an IEP, any hearing pursuant to rule 281—41.507(256B,34CFR300) or rules 281—41.530(256B,34CFR300) to 281—41.532(256B,34CFR300), or any resolution session pursuant to rule 281—41.510(256B,34CFR300), and in no case more than 45 days after the request has been made. 41.613(2) Extent of right to inspect and review. The right to inspect and review education records under this rule includes the following: a. The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records; b. The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and c. The right to have a representative of the parent inspect and review the records. 41.613(3) Who may inspect and review. An agency may presume that the parent has authority to inspect and review records relating to the parent’s child unless the agency has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation, and divorce.Related ARC(s): 7792C28141.614(256B, 34CFR300) Record of access. Each participating agency must keep a record of parties that obtain access to education records collected, maintained, or used under Part B of the Act, except access by parents and authorized employees of the participating agency, including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.28141.615(256B, 34CFR300) Records on more than one child. If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.28141.616(256B, 34CFR300) List of types and locations of information. Each participating agency must provide parents on request a list of the types and locations of education records collected, maintained, or used by the agency.28141.617(256B, 34CFR300) Fees. 41.617(1) Fees for copies in certain circumstances. Each participating agency may charge a fee for copies of records that are made for parents under this chapter if the fee does not effectively prevent the parents from exercising their right to inspect and review those records. 41.617(2) No fees permitted for record retrieval. A participating agency may not charge a fee to search for or to retrieve information under this chapter.28141.618(256B, 34CFR300) Amendment of records at parent’s request. 41.618(1) Parent may request amendment. A parent who believes that information in the education records collected, maintained, or used under this chapter is inaccurate or misleading or violates the privacy or other rights of the child may request the participating agency that maintains the information to amend the information. 41.618(2) Agency to act on parent’s request. The agency must decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request. 41.618(3) Agency to inform parent of hearing rights. If the agency decides to refuse to amend the information in accordance with the request, it must inform the parent of the refusal and advise the parent of the right to a hearing under rule 281—41.619(256B,34CFR300).28141.619(256B, 34CFR300) Opportunity for a hearing. The agency must, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.28141.620(256B, 34CFR300) Result of hearing. 41.620(1) Information to be amended. If, as a result of the hearing, the agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must amend the information accordingly and so inform the parent in writing. 41.620(2) Information not to be amended. If, as a result of the hearing, the agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it must inform the parent of the parent’s right to place in the records the agency maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency. 41.620(3) Explanation placed in student records. Any explanation placed in the records of the child under this rule must be maintained by the agency as part of the records of the child as long as the record or contested portion is maintained by the agency; and, if the records of the child or the contested portion is disclosed by the agency to any party, the explanation must also be disclosed to the party.28141.621(256B, 34CFR300) Hearing procedures. A hearing held under rule 281—41.619(256B,34CFR300) must be conducted according to the procedures in 34 CFR 99.22.28141.622(256B, 34CFR300) Consent. 41.622(1) When parental consent required. Parental consent must be obtained before personally identifiable information is disclosed to parties, other than officials of participating agencies in accordance with subrule 41.622(2), unless the information is contained in education records and the disclosure is authorized without parental consent under 34 CFR Part 99. 41.622(2) When parental consent not required. Except as provided in subrules 41.622(3) and 41.622(4), parental consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of this chapter. 41.622(3) Parental consent required related to transition. Parental consent, or the consent of an eligible child who has reached the age of majority under state law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services in accordance with paragraph 41.321(2)“c.” 41.622(4) Parental consent required relating to students enrolled in certain private schools. If a child is enrolled or is going to enroll in a private school that is not located in the LEA and AEA of the parent’s residence, parental consent must be obtained before any personally identifiable information about the child is released between officials in the LEA and AEA where the private school is located and officials in the LEA and AEA of the parent’s residence.Related ARC(s): 7792C28141.623(256B, 34CFR300) Safeguards. Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages. One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information. All persons collecting or using personally identifiable information must receive training or instruction regarding the state’s policies and procedures under rule 281—41.123(256B,34CFR300) and 34 CFR Part 99. Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.28141.624(256B, 34CFR300) Destruction of information. 41.624(1) Parents to be informed when information no longer required. The public agency must inform parents when personally identifiable information collected, maintained, or used under Part B of the Act or this chapter is no longer needed to provide educational services to the child. 41.624(2) Mandatory and permissive destruction of information. The information must be destroyed at the request of the parents. However, a permanent record of a student’s name, address, and telephone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation. This permanent record must contain the information required by rule 281—12.3(256). 41.624(3) Rule of construction—no longer needed to provide educational services to the child. For purposes of this rule, “no longer needed to provide educational services” means that a record is no longer relevant to the provision of instructional, support, or related services and it is no longer needed for accountability and audit purposes. At a minimum, a record needed for accountability and audit purposes must be retained for five years after completion of the activity for which funds were used.Related ARC(s): 7792C28141.625(256B, 34CFR300) Children’s rights. 41.625(1) General. The state must have in effect policies and procedures regarding the extent to which children are afforded rights of privacy similar to those afforded to parents, taking into consideration the age of the child and type or severity of disability. 41.625(2) Transfer of rights under FERPA. Under the regulations for FERPA in 34 CFR 99.5(a), the rights of parents regarding education records are transferred to the student at the age of 18. 41.625(3) Transfer of rights under Part B of the Act. If the rights accorded to parents under Part B of the Act are transferred to a student who reaches the age of majority, consistent with rule 281—41.520(256B,34CFR300), the rights regarding educational records in rules 281—41.613(256B,34CFR300) to 281—41.624(256B,34CFR300) must also be transferred to the student. However, the public agency must provide any notice required under Section 615 of the Act to the student and the parents.28141.626(256B, 34CFR300) Enforcement. The state must have in effect policies and procedures, including sanctions that the state uses, to ensure that its policies and procedures consistent with rules 281—41.611(256B,34CFR300) to 281—41.625(256B,34CFR300) are followed and that the requirements of the Act and the rules in this chapter are met.28141.627 Reserved.28141.628 Reserved.28141.629 Reserved.28141.630 Reserved.28141.631 Reserved.28141.632 Reserved.28141.633 Reserved.28141.634 Reserved.28141.635 Reserved.28141.636 Reserved.28141.637 Reserved.28141.638 Reserved.28141.639 Reserved.28141.640(256B, 34CFR300) Annual report of children served—report requirement. The SEA must annually report to the Secretary on the information required by Section 618 of the Act at the times specified by the Secretary, and on forms provided by the Secretary.28141.641(256B, 34CFR300) Annual report of children served—information required in the report. 41.641(1) Date of count. For purposes of the annual report required by Section 618 of the Act and rule 281—41.640(256B,34CFR300), the state and the Secretary of the Interior must count and report the number of children with disabilities receiving special education and related services on any date between October 1 and December 1 of each year. 41.641(2) Child’s age. For the purpose of this reporting provision, a child’s age is the child’s actual age on the date of the child count. 41.641(3) Count each child under only one disability category. The SEA may not report a child under more than one disability category. 41.641(4) Child with more than one disability. If a child with a disability has more than one disability, the SEA must report that child in accordance with the following procedure: a. If a child has only two disabilities and those disabilities are deafness and blindness, and the child is not reported as having a developmental delay, that child must be reported under the category “deaf-blindness.” b. A child who has more than one disability and is not reported as having deaf-blindness or as having a developmental delay must be reported under the category “multiple disabilities.”28141.642(256B, 34CFR300) Data reporting. 41.642(1) Protection of personally identifiable data. The data described in Section 618(a) of the Act and in rule 281—41.641(256B,34CFR300) must be publicly reported by each state in a manner that does not result in disclosure of data identifiable to individual children. 41.642(2) Sampling permitted. The Secretary permits the SEA to obtain data in Section 618(a) of the Act through sampling.28141.643(256B, 34CFR300) Annual report of children served—certification. The SEA must include in its report a certification signed by an authorized official of the agency that the information provided under rule 281—41.640(256B,34CFR300) is an accurate and unduplicated count of children with disabilities receiving special education and related services on the dates in question.28141.644(256B, 34CFR300) Annual report of children served—criteria for counting children. The SEA may include in its report children with disabilities who are enrolled in a school or program that is operated or supported by a public agency, and that provides them with both special education and related services that meet state standards; provides them only with special education, if a related service is not required, that meets state standards; or, in the case of children with disabilities enrolled by their parents in private schools, counts those children who are eligible under the Act and receive special education or related services or both that meet state standards under rules 281—41.132(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300).28141.645(256B, 34CFR300) Annual report of children served—other responsibilities of the SEA. In addition to meeting the other requirements of rules 281—41.640(256B,34CFR300) to 281—41.644(256B,34CFR300), the SEA must establish procedures to be used by LEAs and other educational institutions in counting the number of children with disabilities receiving special education and related services; set dates by which those agencies and institutions must report to the SEA to ensure that the state complies with rule 281—41.640(256B,34CFR300); obtain certification from each agency and institution that an unduplicated and accurate count has been made; aggregate the data from the count obtained from each agency and institution, and prepare the reports required under rules 281—41.640(256B,34CFR300) to 281—41.644(256B,34CFR300); and ensure that documentation is maintained that enables the state and the Secretary to audit the accuracy of the count.28141.646(256B, 34CFR300) Disproportionality. 41.646(1) General. Using the methodology required by rule 281—41.647(256B,34CFR300), the state shall collect and examine data to determine if significant disproportionality based on race and ethnicity is occurring in the state and the LEAs of the state with respect to the following: a. The identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in Section 602(3) of the Act; b. The placement in particular educational settings of these children; and c. The incidence, duration, and type of disciplinary actions, including suspensions and expulsions. 41.646(2) Review and revision of policies, practices, and procedures. In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of these children, or the incidence, duration, and type of disciplinary actions, in accordance with subrule 41.646(1) and rule 281—41.647(256B,34CFR300), the state must proceed as follows: a. Provide for the annual review and, if appropriate, revision of the policies, procedures, and practices used in the identification, placement, or disciplinary actions to ensure that the policies, procedures, and practices comply with the requirements of the Act; and b. Require the LEA to publicly report on the revision of policies, practices, and procedures described under paragraph 41.646(2)“a” in a manner consistent with the requirements of the Family Educational Rights and Privacy Act, its implementing regulations in 34 CFR Part 99, and Section 618(b)(1) of the Act. 41.646(3) Comprehensive coordinated early intervening services. Except as provided in subrule 41.646(4), any LEA identified under subrule 41.646(1) shall reserve the maximum amount of funds under Section 613(f) of the Act to provide comprehensive coordinated early intervening services to address factors contributing to the significant disproportionality. a. In implementing comprehensive coordinated early intervening services, an LEA: (1) May carry out activities that include professional development and educational and behavioral evaluations, services, and supports. (2) Must identify and address the factors contributing to the significant disproportionality, which may include, among other identified factors, a lack of access to scientifically based instruction; economic, cultural, or linguistic barriers to appropriate identification or placement in particular educational settings; inappropriate use of disciplinary removals; lack of access to appropriate diagnostic screenings; differences in academic achievement levels; and policies, practices, or procedures that contribute to the significant disproportionality. (3) Must address a policy, practice, or procedure it identifies as contributing to the significant disproportionality, including a policy, practice or procedure that results in a failure to identify, or the inappropriate identification of, a racial or ethnic group (or groups). b. An LEA may use funds reserved for comprehensive coordinated early intervening services to serve children from age 3 through grade 12, particularly, but not exclusively, children in those groups that were significantly over identified under subrule 41.646(1), including: (1) Children who are not currently identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment; and (2) Children with disabilities. c. An LEA may not limit the provision of comprehensive coordinated early intervening services under this subrule to children with disabilities. 41.646(4) Exception to comprehensive coordinated early intervening services. The state shall not require any LEA that serves only children with disabilities identified under subrule 41.646(1) to reserve funds to provide comprehensive coordinated early intervening services. 41.646(5) Rule of construction. Nothing in this rule authorizes the state or an LEA to develop or implement policies, practices, or procedures that result in actions that violate the requirements of this chapter, including requirements related to child find and ensuring that a free appropriate public education is available to all eligible children with disabilities.Related ARC(s): 7792C28141.647(256B, 34CFR300) Determining significant disproportionality. 41.647(1) Definitions. "Alternate risk ratio" is a calculation performed by dividing the risk of a particular outcome for children in one racial or ethnic group within an LEA by the risk of that outcome for children in all other racial or ethnic groups in the state.
"Comparison group" consists of the children in all other racial or ethnic groups within an LEA or within the state, when reviewing a particular racial or ethnic group within an LEA for significant disproportionality.
"Minimum cell size" is the minimum number of children experiencing a particular outcome, to be used as the numerator when calculating either the risk for a particular racial or ethnic group or the risk for children in all other racial or ethnic groups.
"Minimum n-size" is the minimum number of children enrolled in an LEA with respect to identification, and the minimum number of children with disabilities enrolled in an LEA with respect to placement and discipline, to be used as the denominator when calculating either the risk for a particular racial or ethnic group or the risk for children in all other racial or ethnic groups.
"Risk" is the likelihood of a particular outcome (identification, placement, or disciplinary removal) for a specified racial or ethnic group (or groups), calculated by dividing the number of children from a specified racial or ethnic group (or groups) experiencing that outcome by the total number of children from that racial or ethnic group or groups enrolled in the LEA.
"Risk ratio" is a calculation performed by dividing the risk of a particular outcome for children in one racial or ethnic group within an LEA by the risk for children in all other racial and ethnic groups within the LEA.
"Risk ratio threshold" is a threshold, determined by the state, over which disproportionality based on race or ethnicity is significant under subrule 41.646(1).
41.647(2) Significant disproportionality determinations. In determining whether significant disproportionality exists in the state or LEA under subrule 41.646(1), the state must do all of the following: a. General. The state must set a: (1) Reasonable risk ratio threshold; (2) Reasonable minimum cell size; (3) Reasonable minimum n-size; and (4) Standard for measuring reasonable progress if the state uses the flexibility described in paragraph 41.647(4)“b.” b. Flexibility. The state may, but is not required to, set the standards set forth in paragraph 41.647(2)“a” at different levels for each of the categories described in paragraphs 41.647(2)“f” and 41.647(2)“g.” c. Development and review of standards. The standards set forth in paragraph 41.647(2)“a”: (1) Must be based on advice from stakeholders, including state advisory panels, as provided under Section 612(a)(21)(D)(iii) of the Act; and (2) Are subject to monitoring and enforcement for reasonableness by the Secretary consistent with Section 616 of the Act. d. Presumption of reasonability. When monitoring for reasonableness under subparagraph 41.647(2)“c”(2), the following are presumptively reasonable: (1) A minimum cell size under subparagraph 41.647(2)“a”(2) no greater than ten; and (2) A minimum n-size under subparagraph 41.647(2)“a”(3) no greater than 30. e. Application. The state must apply the risk ratio threshold or thresholds determined in paragraph 41.647(2)“a” to risk ratios or alternate risk ratios, as appropriate, in each category described in paragraphs 41.647(2)“f”and 41.647(2)“g” and the following racial and ethnic groups: (1) Hispanic/Latino of any race; and, for individuals who are non-Hispanic/Latino only; (2) American Indian or Alaska Native; (3) Asian; (4) Black or African American; (5) Native Hawaiian or Other Pacific Islander; (6) White; and (7) Two or more races. f. Calculation of risk ratio: identification. Except as provided in paragraph 41.647(2)“h” and subrule 41.647(3), the state must calculate the risk ratio for each LEA, for each racial and ethnic group in paragraph 41.647(2)“e” with respect to: (1) The identification of children ages 3 through 21 as children with disabilities; and (2) The identification of children ages 3 through 21 as children with the following impairments: 1. Intellectual disabilities; 2. Specific learning disabilities; 3. Emotional disturbance; 4. Speech or language impairments; 5. Other health impairments; and 6. Autism. g. Calculation of risk ratio:placement and disciplinary removals. Except as provided in paragraph 41.647(2)“h” and subrule 41.647(3), the state must calculate the risk ratio for each LEA, for each racial and ethnic group in paragraph 41.647(2)“e” with respect to the following placements into particular educational settings, including disciplinary removals: (1) For children with disabilities ages 6 through 21, inside a regular class less than 40 percent of the day; (2) For children with disabilities ages 6 through 21, inside separate schools and residential facilities, not including homebound or hospital settings, correctional facilities, or private schools; (3) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of ten days or fewer; (4) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of more than ten days; (5) For children with disabilities ages 3 through 21, in-school suspensions of ten days or fewer; (6) For children with disabilities ages 3 through 21, in-school suspensions of more than ten days; and (7) For children with disabilities ages 3 through 21, disciplinary removals in total, including in-school and out-of-school suspensions, expulsions, removals by school personnel to an interim alternative education setting, and removals by a hearing officer. h. Alternate risk ratio. The state must calculate an alternate risk ratio with respect to the categories described in paragraphs 41.647(2)“f” and 41.647(2)“g” if the comparison group in the LEA does not meet the minimum cell size or the minimum n-size. i. Identification as having significant disproportionality. Except as provided in subrule 41.647(4), the state must identify as having significant disproportionality based on race or ethnicity under subrule 41.646(1) any LEA that has a risk ratio or alternate risk ratio for any racial or ethnic group in any of the categories described in paragraphs 41.647(2)“f” and 41.647(2)“g” that exceeds the risk ratio threshold set by the state for that category. j. Reporting under this subrule to the Secretary. The state must report all risk ratio thresholds, minimum cell sizes, minimum n-sizes, and standards for measuring reasonable progress selected under subparagraphs 41.647(2)“a”(1) through 41.647(2)“a”(4), and the rationales for each, to the U.S. Department of Education at a time and in a manner determined by the Secretary. Rationales for minimum cell sizes and minimum n-sizes not presumptively reasonable under paragraph 41.647(2)“d” must include a detailed explanation of why the numbers chosen are reasonable and how they ensure that the state is appropriately analyzing and identifying LEAs with significant disparities, based on race and ethnicity, in the identification, placement, or discipline of children with disabilities. 41.647(3) Exception. The state is not required to calculate a risk ratio or alternate risk ratio, as outlined in paragraphs 41.647(2)“f,”41.647(2)“g,” and 41.647(2)“h,” to determine significant disproportionality if: a. The particular racial or ethnic group being analyzed does not meet the minimum cell size or minimum n-size; or b. In calculating the alternate risk ratio under paragraph 41.647(2)“h,” the comparison group in the state does not meet the minimum cell size or minimum n-size. 41.647(4) Flexibility. The state is not required to identify an LEA as having significant disproportionality based on race or ethnicity under subrule 41.646(1) until: a. The LEA has exceeded a risk ratio threshold set by the state for a racial or ethnic group in a category described in paragraphs 41.647(2)“f” and 41.647(2)“g” for up to three prior consecutive years preceding the identification; and b. The LEA has exceeded the risk ratio threshold and has failed to demonstrate reasonable progress, as determined by the state, in lowering the risk ratio or alternate risk ratio for the group and category in each of the two prior consecutive years. 41.647(5) Rule of construction. Nothing in this rule shall be construed to require identification or classification of any child by impairment. Related ARC(s): 7792C28141.648 Reserved.28141.649 Reserved.28141.650 Reserved.28141.651 Reserved.28141.652 Reserved.28141.653 Reserved.28141.654 Reserved.28141.655 Reserved.28141.656 Reserved.28141.657 Reserved.28141.658 Reserved.28141.659 Reserved.28141.660 Reserved.28141.661 Reserved.28141.662 Reserved.28141.663 Reserved.28141.664 Reserved.28141.665 Reserved.28141.666 Reserved.28141.667 Reserved.28141.668 Reserved.28141.669 Reserved.28141.670 Reserved.28141.671 Reserved.28141.672 Reserved.28141.673 Reserved.28141.674 Reserved.28141.675 Reserved.28141.676 Reserved.28141.677 Reserved.28141.678 Reserved.28141.679 Reserved.28141.680 Reserved.28141.681 Reserved.28141.682 Reserved.28141.683 Reserved.28141.684 Reserved.28141.685 Reserved.28141.686 Reserved.28141.687 Reserved.28141.688 Reserved.28141.689 Reserved.28141.690 Reserved.28141.691 Reserved.28141.692 Reserved.28141.693 Reserved.28141.694 Reserved.28141.695 Reserved.28141.696 Reserved.28141.697 Reserved.28141.698 Reserved.28141.699 Reserved.DIVISION IXRESERVED28141.700 Reserved.28141.701 Reserved.28141.702 Reserved.28141.703 Reserved.28141.704 Reserved.28141.705 Reserved.28141.706 Reserved.28141.707 Reserved.28141.708 Reserved.28141.709 Reserved.28141.710 Reserved.28141.711 Reserved.28141.712 Reserved.28141.713 Reserved.28141.714 Reserved.28141.715 Reserved.28141.716 Reserved.28141.717 Reserved.28141.718 Reserved.28141.719 Reserved.28141.720 Reserved.28141.721 Reserved.28141.722 Reserved.28141.723 Reserved.28141.724 Reserved.28141.725 Reserved.28141.726 Reserved.28141.727 Reserved.28141.728 Reserved.28141.729 Reserved.28141.730 Reserved.28141.731 Reserved.28141.732 Reserved.28141.733 Reserved.28141.734 Reserved.28141.735 Reserved.28141.736 Reserved.28141.737 Reserved.28141.738 Reserved.28141.739 Reserved.28141.740 Reserved.28141.741 Reserved.28141.742 Reserved.28141.743 Reserved.28141.744 Reserved.28141.745 Reserved.28141.746 Reserved.28141.747 Reserved.28141.748 Reserved.28141.749 Reserved.28141.750 Reserved.28141.751 Reserved.28141.752 Reserved.28141.753 Reserved.28141.754 Reserved.28141.755 Reserved.28141.756 Reserved.28141.757 Reserved.28141.758 Reserved.28141.759 Reserved.28141.760 Reserved.28141.761 Reserved.28141.762 Reserved.28141.763 Reserved.28141.764 Reserved.28141.765 Reserved.28141.766 Reserved.28141.767 Reserved.28141.768 Reserved.28141.769 Reserved.28141.770 Reserved.28141.771 Reserved.28141.772 Reserved.28141.773 Reserved.28141.774 Reserved.28141.775 Reserved.28141.776 Reserved.28141.777 Reserved.28141.778 Reserved.28141.779 Reserved.28141.780 Reserved.28141.781 Reserved.28141.782 Reserved.28141.783 Reserved.28141.784 Reserved.28141.785 Reserved.28141.786 Reserved.28141.787 Reserved.28141.788 Reserved.28141.789 Reserved.28141.790 Reserved.28141.791 Reserved.28141.792 Reserved.28141.793 Reserved.28141.794 Reserved.28141.795 Reserved.28141.796 Reserved.28141.797 Reserved.28141.798 Reserved.28141.799 Reserved.DIVISION XPRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES28141.800(256B, 34CFR300) General rule. The Secretary provides grants under Section 619 of the Act to assist states to provide special education and related services in accordance with Part B of the Act to children with disabilities aged three through five years; and, at a state’s discretion, to two-year-old children with disabilities who will turn three during the school year.28141.801 Reserved.28141.802 Reserved.28141.803 Reserved.28141.804(256B, 34CFR300) Eligibility. A state is eligible for a grant under Section 619 of the Act if the state is eligible under Section 612 of the Act to receive a grant under Part B of the Act and makes FAPE available to all children with disabilities, aged three through five, residing in the state.28141.805 Reserved.28141.806(256B, 34CFR300) Eligibility for financial assistance. No state or LEA, or other public institution or agency, may receive a grant or enter into a contract or cooperative agreement under Subpart 2 or 3 of Part D of the Act that relates exclusively to programs, projects, and activities pertaining to children aged three through five years, unless the state is eligible to receive a grant under Section 619(b) of the Act.28141.807 Reserved.28141.808 Reserved.28141.809 Reserved.28141.810 Reserved.28141.811 Reserved.28141.812 Reserved.28141.813(256B, 34CFR300) State administration. 41.813(1) General. For the purpose of administering Section 619 of the Act, including the coordination of activities under Part B of the Act with and providing technical assistance to other programs that provide services to children with disabilities, the state may use not more than 20 percent of the maximum amount the state may reserve under rule 281—41.812(256B,34CFR300) for any fiscal year. 41.813(2) Use for administering Part C. Funds described in subrule 41.813(1) may also be used for the administration of Part C of the Act.28141.814(256B, 34CFR300) Other state-level activities. The state must use any funds the state reserves under rule 281—41.812(256B,34CFR300) and does not use for administration under rule 281—41.813(256B,34CFR300) for other state-level activities, consistent with 34 CFR Section 300.814.28141.815(256B, 34CFR300) Subgrants to AEAs. The state shall make subgrants to AEAs consistent with 34 CFR Section 300.815.Related ARC(s): 7792C28141.816(256B, 34CFR300) Allocations to AEAs. The state must allocate to AEAs the amount described in rule 281—41.815(256B,34CFR300), consistent with 34 CFR Section 300.816.28141.817(256B, 34CFR300) Reallocation of AEA funds. The state shall reallocate AEA funds under conditions listed and in a manner specified by 34 CFR Section 300.817.Related ARC(s): 7792C28141.818(256B, 34CFR300) Part C of the Act inapplicable. Part C of the Act does not apply to any child with a disability receiving FAPE, in accordance with Part B of the Act, with funds received under Section 619 of the Act.28141.819 Reserved.28141.820 Reserved.28141.821 Reserved.28141.822 Reserved.28141.823 Reserved.28141.824 Reserved.28141.825 Reserved.28141.826 Reserved.28141.827 Reserved.28141.828 Reserved.28141.829 Reserved.28141.830 Reserved.28141.831 Reserved.28141.832 Reserved.28141.833 Reserved.28141.834 Reserved.28141.835 Reserved.28141.836 Reserved.28141.837 Reserved.28141.838 Reserved.28141.839 Reserved.28141.840 Reserved.28141.841 Reserved.28141.842 Reserved.28141.843 Reserved.28141.844 Reserved.28141.845 Reserved.28141.846 Reserved.28141.847 Reserved.28141.848 Reserved.28141.849 Reserved.28141.850 Reserved.28141.851 Reserved.28141.852 Reserved.28141.853 Reserved.28141.854 Reserved.28141.855 Reserved.28141.856 Reserved.28141.857 Reserved.28141.858 Reserved.28141.859 Reserved.28141.860 Reserved.28141.861 Reserved.28141.862 Reserved.28141.863 Reserved.28141.864 Reserved.28141.865 Reserved.28141.866 Reserved.28141.867 Reserved.28141.868 Reserved.28141.869 Reserved.28141.870 Reserved.28141.871 Reserved.28141.872 Reserved.28141.873 Reserved.28141.874 Reserved.28141.875 Reserved.28141.876 Reserved.28141.877 Reserved.28141.878 Reserved.28141.879 Reserved.28141.880 Reserved.28141.881 Reserved.28141.882 Reserved.28141.883 Reserved.28141.884 Reserved.28141.885 Reserved.28141.886 Reserved.28141.887 Reserved.28141.888 Reserved.28141.889 Reserved.28141.890 Reserved.28141.891 Reserved.28141.892 Reserved.28141.893 Reserved.28141.894 Reserved.28141.895 Reserved.28141.896 Reserved.28141.897 Reserved.28141.898 Reserved.28141.899 Reserved.DIVISION XIADDITIONAL RULES CONCERNING FINANCE AND PUBLIC ACCOUNTABILITY28141.900 Reserved.28141.901(256B, 282) Records and reports. Each agency shall maintain sufficient records and reports for audit by the department. Records and reports shall include at a minimum: licensure (certification) and endorsements or recognition requirements for all special education personnel under rules 281—41.401(256B,34CFR300) to 281—41.403(256B); all IEP and IFSP meetings and three-year reevaluations for each eligible individual; and data required for federal and state reporting.28141.902(256B, 282) Audit. The department reserves the right to audit the records of any agency providing special education for eligible individuals and utilizing funds generated under Iowa Code chapters 256B, 273 and 282.28141.903(256B, 282) Contractual agreements. 41.903(1) General. Any special education instructional program not provided directly by an LEA or any special education support service not provided by an AEA can only be provided through a contractual agreement. The board shall approve contractual agreements for AEA-operated special education instructional programs and contractual agreements permitting special education support services to be provided by agencies other than the AEA. 41.903(2) Specific requirements. Each agency contracting with other agencies to provide special education and related services for individuals or groups of individuals maintain responsibility for individuals receiving such special education and related services by: a. Ensuring that all the requirements related to the development of each eligible individual’s IEP are met. b. Requiring and reviewing periodic progress reports to ensure the adequacy and appropriateness of the special education and related services provided. c. Conditioning payments on delivery of special education and related services in accordance with the eligible individual’s IEP and in compliance with these rules.Related ARC(s): 7792C28141.904(256B) Research and demonstration projects and models for special education program development. Applications for aid, whether provided directly from state or federal funds, for special education research and demonstration projects and models for program development shall be submitted to the department.28141.905(256B, 273) Additional special education. Additional special education made available through the provisions of Iowa Code section 273.3 will be furnished in a manner consistent with these rules.Related ARC(s): 7792C28141.906(256B, 273, 282) Extended school year services. Approved extended school year programs for special education support services, when provided by the AEA for eligible individuals, will be funded through procedures as provided for special education support services. Approved extended school year instructional programs will be funded through procedures as provided for special education instructional programs.Related ARC(s): 7792C28141.907(256B, 282, 34CFR300, 303) Program costs. 41.907(1) Nonresident individual. Subject to subrule 41.131(6), the program costs charged by an LEA or an AEA for an instructional program for a nonresident eligible individual shall be the actual costs incurred in providing that program. 41.907(2) Contracted special education. An AEA or LEA may make provisions for resident eligible individuals through contracts with public or private agencies that provide appropriate and approved special education. The program costs charged by or paid to a public or private agency for special education instructional programs shall be the actual costs incurred in providing that program. 41.907(3) LEA responsibility. The resident LEA shall be liable only for instructional costs incurred by an agency for those individuals certified as eligible in accordance with these rules unless required by 34 CFR Section 300.104. 41.907(4) Support service funds. Support service funds may not be utilized to supplement any special education programs authorized to use special education instructional funds generated through the weighting plan. 41.907(5) Responsibility for special education for children living in a foster care facility or treatment facility. a. Eligible individuals who are living in a licensed individual or agency child foster care facility, as defined in Iowa Code section 237.1, or in an unlicensed relative foster care placement shall remain enrolled in and attend an accredited school in the school district in which the child resided and is enrolled at the time of placement, unless it is determined by the juvenile court or a public or private agency of this state that has responsibility for the child’s placement that remaining in such school is not in the best interests of the child. If such a determination is made, the child may be enrolled in the district in which the child is placed and not in the district in which the child resided prior to receiving foster care. The costs of the special education required by this chapter shall be paid, in either case, by the school district of residence of the eligible individual. b. For eligible individuals who are living in a facility as defined in Iowa Code section 125.2, the LEA in which the facility is located must provide special education if the facility does not maintain a school. The costs of the special education shall be paid by the school district of residence of the eligible individual. c. If the school district of residence of the eligible individual cannot be determined and this individual is not included in the weighted enrollment of any LEA in the state, the LEA in which the facility is located may certify the costs to the director of education by August 1 of each year for the preceding fiscal year. Payment shall be made from the general fund of the state. 41.907(6) Responsibility for special education for individuals after termination of parental rights. For eligible individuals placed by the district court, and for whom parental rights have been terminated by the district court, the LEA in which the facility or home is located must provide special education. Costs shall be certified to the director of education by August 1 of each year for the preceding fiscal year by the director of the AEA in which this individual has been placed. Payment shall be made from the general fund of the state. 41.907(7) Proper use of special education instructional and support service funds. Special education instructional funds generated through the weighting plan may be utilized to provide special education instructional services both in state and out of state with the exceptions of itinerant instructional services under subrule 41.410(1) and special education consultant services that shall utilize special education support service funds for both in-state and out-of-state placements. 41.907(8) Funding of ECSE instructional options. Eligible individuals below the age of six may be designated as full-time or part-time students depending on the needs of the child. Funding shall be based on individual needs as determined by the IEP team. Special education instructional funds generated through the weighting plan can be used to pay tuition, transportation, and other necessary special education costs, but shall not be used to provide child care. a. Full-time ECSE instructional services shall include 20 hours or more of instruction per week. The total hours of participation in special education and general education may be combined to constitute a full-time program. b. Part-time ECSE instructional services shall include up to 20 hours of instruction per week. The total hours of participation in special education and general education may be combined to constitute a part-time program. c. Funds under 20 U.S.C. Chapter 33, Part C, may be used to provide FAPE, in accordance with these rules, to eligible individuals from their third birthday to the beginning of the following school year. 41.907(9) Funding for instructional services. After an LEA board approves a delivery system for instructional services as described in subrule 41.408(2), the director, in accordance with Iowa Code sections 256B.9 and 273.5, will assign the appropriate special education weighting to each eligible individual by designating a level of service. The level of service refers to the relationship between the general education program and specially designed instruction for an eligible individual. The level of service is determined based on an eligible individual’s educational need and independent of the environment in which the specially designed instruction is provided. The level of service assigned shall not be a factor in a services or placement decision, and shall be made only after those decisions have been made. One of three levels of service shall be assigned by the director: a. Level I. A level of service that provides specially designed instruction for a limited portion or part of the educational program. A majority of the general education program is appropriate. This level of service includes modifications and adaptations to the general education program. (Reference Iowa Code section 256B.9(1)“b”) b. Level II. A level of service that provides specially designed instruction for a majority of the educational program. This level of service includes substantial modifications, adaptations, and special education accommodations to the general education program. (Reference Iowa Code section 256B.9(1)“c”) c. Level III. A level of service that provides specially designed instruction for most or all of the educational program. This level of service requires extensive redesign of curriculum and substantial modification of instructional techniques, strategies and materials. (Reference Iowa Code section 256B.9(1)“d”) 41.907(10) Procedures for billing under subrules and . The department may establish procedures by which it determines which district initially pays the costs of special education and related services and seeks reimbursement in situations where a parent of a child cannot be located, parental rights have been terminated, or parents are deceased.Related ARC(s): 7792C28141.908(256B, 282) Accountability. The responsible agency shall provide special education and related services in accordance with the individual’s IEP; but the agency, teacher, or other person is not held accountable if an individual does not achieve the growth projected in the annual goals and objectives of the IEP, so long as the individual’s IEP was reasonably calculated to confer education benefit and was implemented. Nothing in this rule or this chapter is to be construed to create a right of action against any individual.Related ARC(s): 7792C28141.909 Reserved.28141.910 Reserved.28141.911 Reserved.28141.912 Reserved.28141.913 Reserved.28141.914 Reserved.28141.915 Reserved.28141.916 Reserved.28141.917 Reserved.28141.918 Reserved.28141.919 Reserved.28141.920 Reserved.28141.921 Reserved.28141.922 Reserved.28141.923 Reserved.28141.924 Reserved.28141.925 Reserved.28141.926 Reserved.28141.927 Reserved.28141.928 Reserved.28141.929 Reserved.28141.930 Reserved.28141.931 Reserved.28141.932 Reserved.28141.933 Reserved.28141.934 Reserved.28141.935 Reserved.28141.936 Reserved.28141.937 Reserved.28141.938 Reserved.28141.939 Reserved.28141.940 Reserved.28141.941 Reserved.28141.942 Reserved.28141.943 Reserved.28141.944 Reserved.28141.945 Reserved.28141.946 Reserved.28141.947 Reserved.28141.948 Reserved.28141.949 Reserved.28141.950 Reserved.28141.951 Reserved.28141.952 Reserved.28141.953 Reserved.28141.954 Reserved.28141.955 Reserved.28141.956 Reserved.28141.957 Reserved.28141.958 Reserved.28141.959 Reserved.28141.960 Reserved.28141.961 Reserved.28141.962 Reserved.28141.963 Reserved.28141.964 Reserved.28141.965 Reserved.28141.966 Reserved.28141.967 Reserved.28141.968 Reserved.28141.969 Reserved.28141.970 Reserved.28141.971 Reserved.28141.972 Reserved.28141.973 Reserved.28141.974 Reserved.28141.975 Reserved.28141.976 Reserved.28141.977 Reserved.28141.978 Reserved.28141.979 Reserved.28141.980 Reserved.28141.981 Reserved.28141.982 Reserved.28141.983 Reserved.28141.984 Reserved.28141.985 Reserved.28141.986 Reserved.28141.987 Reserved.28141.988 Reserved.28141.989 Reserved.28141.990 Reserved.28141.991 Reserved.28141.992 Reserved.28141.993 Reserved.28141.994 Reserved.28141.995 Reserved.28141.996 Reserved.28141.997 Reserved.28141.998 Reserved.28141.999 Reserved.DIVISION XIIPRACTICE BEFORE MEDIATORS AND ADMINISTRATIVE LAW JUDGES28141.1000 Reserved.28141.1001 Reserved.28141.1002(256B, 34CFR300) Special education mediation conference. 41.1002(1) Procedures. The parent, the LEA or the AEA may request a special education mediation conference on any decision relating to the identification, evaluation, educational placement, or the provision of FAPE without the need for filing a due process complaint. The mediation conference shall comply with rule 281—41.506(256B,34CFR300). a. A request for a special education mediation conference may be in the form of a letter or a pleading or on a form provided by the department. The request will identify the student, LEA and AEA and set forth the facts, the issues of concern, or the reasons for the conference. The letter will be provided to the department, to the AEA, and to the LEA. b. Within five business days of receipt of the request for the conference, the department will contact all pertinent parties to determine whether participation is desired. c. A mediation conference will be scheduled and held at a time and place reasonably convenient to all parties involved. Written notice will be sent to all parties by the department. d. The student’s complete school record will be made available for review by the parent prior to the conference, if requested in writing at least ten calendar days before the conference. e. The individual’s complete school record will be available to the participants at the conference if the record is requested in writing at least ten calendar days prior to any scheduling conference call or within two days following the scheduling conference call. The parties may agree to make less than the complete educational record available, or make no educational records available, at the mediation conference. f. A mediator provided by the department will preside over the conference. g. If an agreement is reached, a document meeting the requirements of paragraph 41.506(2)“f” will be executed. h. If agreement is not reached at the conference, all parties will be informed of the procedures for filing a due process complaint. 41.1002(2) Placement during proceedings. Pursuant to rule 281—41.518(256B,34CFR300), unless the parties agree otherwise, the student involved in the mediation conference must remain in the student’s present educational placement during the pendency of the proceedings. 41.1002(3) Withdrawals or automatic closures. The initiating party may request a withdrawal prior to the conference. Automatic closure of the department file will occur if any of the following circumstances apply: a. One of the parties refuses to participate in the voluntary process. b. The conference is held, but parties are not able to reach an agreement. There will be a ten-calendar-day waiting period after the conference to continue the placement as described in subrule 41.1002(2) in the event a party wishes to pursue a hearing. c. The conference is held, the parties are able to reach an agreement, and the agreement does not specify a withdrawal date. If a withdrawal date is part of the agreement, an agency withdrawal will occur on the designated date. 41.1002(4) Confidentiality of discussions. Discussions that occur during the special education mediation conference must be confidential, except as may be provided in Iowa Code chapter 679C, and may not be used as evidence in any subsequent due process hearings or civil proceedings; however, the parties may stipulate to agreements reached at the conference. Prior to the start of the conference, the parties and the mediator will be required to sign an Agreement to Mediate form containing this confidentiality provision.Related ARC(s): 7792C28141.1003(17A, 256B) Procedures concerning due process complaints. Due process hearings will be conducted pursuant to these rules, the rules of the department of inspections, appeals, and licensing, and any order made by the presiding administrative law judge.Related ARC(s): 7792C28141.1004 Reserved.28141.1005 Reserved.28141.1006 Reserved.28141.1007 Reserved.28141.1008 Reserved.28141.1009(17A, 256B) Witnesses. 41.1009(1) Subpoenas. The director of education has the power to issue, but not to serve, subpoenas for witnesses and to compel the attendance of those thus served and the giving of evidence by them. The subpoenas will be given to the requesting parties whose responsibility it is to serve to the designated witnesses. Requests for subpoenas may be denied or delayed if not submitted to the department at least five business days prior to the hearing date. 41.1009(2) Attendance of witness compelled. Any party may compel by subpoena the attendance of witnesses, subject to limitations imposed by state law. 41.1009(3) Cross-examination. Witnesses at the hearing are subject to cross-examination. An individual whose testimony has been submitted in written form, if available, will be subject to cross-examination by any party necessary for a full and true disclosure of the facts. If the individual is not available and cross-examination is necessary for a full and true disclosure of the facts, the administrative law judge may exclude the individual’s testimony in written form.Related ARC(s): 7792C28141.1010(17A, 256B) Rules of evidence. 41.1010(1) Receiving relevant evidence. Because the administrative law judge must decide each case fairly, based on the information presented, it is necessary to allow for the reception of all relevant evidence that will contribute to an informed result. The ultimate test of admissibility is whether the offered evidence is reliable, probative and relevant. 41.1010(2) Acceptable evidence. Irrelevant, immaterial or unduly repetitious evidence will be excluded. The kind of evidence reasonably prudent persons rely on may be accepted even if it would be inadmissible in a jury trial. The administrative law judge will give effect to the rules of privilege recognized by law. Objections to evidence may be made and shall be noted in the record. When a hearing is expedited and the interests of the parties are not prejudiced substantially, any part of the evidence may be required to be submitted in verified written form. 41.1010(3) Documentary evidence. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties will be given an opportunity to compare the copy with the original, if available. Any party has the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing. 41.1010(4) Administrative notice and opportunity to contest. The administrative law judge may take official notice of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the administrative law judge. Parties will be notified at the earliest practicable time, either before or during the hearing or by reference in preliminary reports, and afforded an opportunity to contest such facts before the decision is announced unless the administrative law judge determines as part of the record or decision that fairness to the parties does not require an opportunity to contest such facts. 41.1010(5) Discovery. Discovery procedures applicable to civil actions are available to all parties in due process hearings under this chapter. Evidence obtained in discovery may be used in the hearing before the agency if that evidence would otherwise be admissible in the agency hearing. The administrative law judge may exercise such control over discovery, including its nature, scope, frequency, duration, or sequence, as permitted by the Iowa rules of civil procedure, and for such grounds as those rules may provide. 41.1010(6) Administrative law judge may evaluate evidence. The administrative law judge’s experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence. 41.1010(7) Decision. A decision will be made upon consideration of the whole record or such portions that are supported by and in accordance with reliable, probative and substantial evidence.Related ARC(s): 7792C28141.1011(17A, 256B) Communications. 41.1011(1) Restrictions on communications—administrative law judge. The administrative law judge will not communicate directly or indirectly in connection with any issue of fact or law in that contested case with any person or party except upon notice and opportunity for all parties to participate. 41.1011(2) Restrictions on communications—parties. Parties or their representatives will not communicate directly or indirectly in connection with any issue of fact or law with the administrative law judge except upon notice and opportunity for all parties to participate as are provided for by administrative rules. The recipient of any prohibited communication will submit the communication, if written, or a summary of the communication, if oral, for inclusion in the record of the proceeding. 41.1011(3) Sanctions. Any or all of the following sanctions may be imposed upon a party who violates this rule: censure, suspension or revocation of the privilege to practice before the department, or the rendering of a decision against a party who violates the rules.Related ARC(s): 7792C28141.1012(17A, 256B) Record. 41.1012(1) Transcripts. All recordings or notes by certified court reporters of oral proceedings or the transcripts thereof will be maintained and preserved by the department for at least five years from the date of decision. 41.1012(2) Hearing record. The record of a hearing will be maintained and preserved by the department for at least five years from the date of the decision. The record under this division includes the following: a. All pleadings, motions and intermediate rulings. b. All evidence received or considered and all other submissions. c. A statement of matters officially noted. d. All questions and offers of proof, objections and rulings thereof. e. All proposed findings and exceptions. f. Any decision, opinion or report by the administrative law judge presented at the hearing.Related ARC(s): 7792C28141.1013 Reserved.28141.1014(17A, 256B) Finality of decision. 41.1014(1) Decision final. The decision of the administrative law judge is final. The date of postmark of the decision is the date used to compute time for purposes of appeal. 41.1014(2) Notice to department of a civil action. A party initiating a civil action in state or federal court under rule 281—41.516(256B,34CFR300) shall provide an informational copy of the petition or complaint to the department within 14 days of filing the action. 41.1014(3) Filing of certified administrative record. The department shall file a certified copy of the administrative record within 30 days of receiving the informational copy referred to in subrule 41.1014(2).Related ARC(s): 7792C28141.1015(256B, 34CFR300) Disqualification of mediator. Any party may request an appointment of a new mediator for any reason listed in subrule 41.1004(1). The department will determine whether such grounds exist and, if so, shall appoint a new mediator.Related ARC(s): 7792C28141.1016(17A) Correcting decisions of administrative law judges. An administrative law judge may, on the motion of any party or on the administrative law judge’s own motion, correct any error in a decision or order under this chapter that does not substantively alter the administrative law judge’s findings of fact, conclusions of law, or ordered relief, including clerical errors, errors in grammar or spelling, and errors in the form of legal citation. Any such correction will be made within 90 days of the date of the order or decision, will relate back to the date of the order or decision, and will not extend any applicable statute of limitations.Related ARC(s): 7792C28141.1017 Reserved.28141.1018 Reserved.28141.1019 Reserved.28141.1020 Reserved.28141.1021 Reserved.28141.1022 Reserved.28141.1023 Reserved.28141.1024 Reserved.28141.1025 Reserved.28141.1026 Reserved.28141.1027 Reserved.28141.1028 Reserved.28141.1029 Reserved.28141.1030 Reserved.28141.1031 Reserved.28141.1032 Reserved.28141.1033 Reserved.28141.1034 Reserved.28141.1035 Reserved.28141.1036 Reserved.28141.1037 Reserved.28141.1038 Reserved.28141.1039 Reserved.28141.1040 Reserved.28141.1041 Reserved.28141.1042 Reserved.28141.1043 Reserved.28141.1044 Reserved.28141.1045 Reserved.28141.1046 Reserved.28141.1047 Reserved.28141.1048 Reserved.28141.1049 Reserved.28141.1050 Reserved.28141.1051 Reserved.28141.1052 Reserved.28141.1053 Reserved.28141.1054 Reserved.28141.1055 Reserved.28141.1056 Reserved.28141.1057 Reserved.28141.1058 Reserved.28141.1059 Reserved.28141.1060 Reserved.28141.1061 Reserved.28141.1062 Reserved.28141.1063 Reserved.28141.1064 Reserved.28141.1065 Reserved.28141.1066 Reserved.28141.1067 Reserved.28141.1068 Reserved.28141.1069 Reserved.28141.1070 Reserved.28141.1071 Reserved.28141.1072 Reserved.28141.1073 Reserved.28141.1074 Reserved.28141.1075 Reserved.28141.1076 Reserved.28141.1077 Reserved.28141.1078 Reserved.28141.1079 Reserved.28141.1080 Reserved.28141.1081 Reserved.28141.1082 Reserved.28141.1083 Reserved.28141.1084 Reserved.28141.1085 Reserved.28141.1086 Reserved.28141.1087 Reserved.28141.1088 Reserved.28141.1089 Reserved.28141.1090 Reserved.28141.1091 Reserved.28141.1092 Reserved.28141.1093 Reserved.28141.1094 Reserved.28141.1095 Reserved.28141.1096 Reserved.28141.1097 Reserved.28141.1098 Reserved.28141.1099 Reserved.DIVISION XIIIADDITIONAL RULES NECESSARY TO IMPLEMENT AND APPLY THIS CHAPTER28141.1100(256B, 34CFR300) References to federal law. All references in this chapter to the United States Code or to the Code of Federal Regulations are to those provisions in effect on February 7, 2024.Related ARC(s): 7792C28141.1101(256B, 34CFR300) Severability. Should any rule or subrule in this chapter be declared invalid by a court of competent jurisdiction, every other rule and subrule not affected by that declaration of invalidity remains valid.Related ARC(s): 7792C28141.1102(256B, 34CFR300) Rule of construction. Language adopted pursuant to 2020 Iowa Acts, House File 2585, is to be construed in a manner consistent with federal law and shall not be construed to confer any different or greater right or responsibility under this chapter.Related ARC(s): 7792CThese rules are intended to implement Iowa Code chapter 256B, the 2004 amendments to the Individuals with Disabilities Education Act, and Part 300 of Title 34 of the Code of Federal Regulations published in the Federal Register on August 14, 2006.Related ARC(s): 8387B, 9375B, 9376B, 0814C, 3387C, 3766C, 5329C, 5870C, 6724C, 6979C, 7792C