ARC 7587C
EDUCATION DEPARTMENT[281]
Notice of Intended Action
Proposing rulemaking related to private instruction and dual enrollment and providing an opportunity for public comment
The State Board of Education hereby proposes to rescind Chapter 31, “Private Instruction and Dual Enrollment,” Iowa Administrative Code, and to adopt a new chapter with the same title.
Legal Authority for Rulemaking
This rulemaking is proposed under the authority provided in Iowa Code section 299A.10.
State or Federal Law Implemented
This rulemaking implements, in whole or in part, Iowa Code chapter 299A.
Purpose and Summary
This rulemaking is proposed pursuant to Executive Order 10 review. The Department of Education proposes to remove unduly restrictive rules language, remove inflexible rule language, and incorporate statutory language by reference when available.
Fiscal Impact
This rulemaking has no fiscal impact to the State of Iowa.
Jobs Impact
After analysis and review of this rulemaking, no impact on jobs has been found.
Waivers
Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.
Public Comment
Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on February 27, 2024. Comments should be directed to:

Thomas A. Mayes
Department of Education
Grimes State Office Building, Second Floor
400 East 14th Street
Des Moines, Iowa 50319-0146
Phone: 515.281.8661
Email: thomas.mayes@iowa.gov	
Public Hearing
Public hearings at which persons may present their views orally or in writing will be held as follows:

February 27, 2024
11:30 a.m. to 12 noon	Room B100
Grimes State Office Building
Des Moines, Iowa	
February 27, 2024
3:30 to 4 p.m.	Room B50
Grimes State Office Building
Des Moines, Iowa	
Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking.
Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs by calling 515.281.5295.
Review by Administrative Rules Review Committee
The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).
The following rulemaking action is proposed:
	Item 1. Rescind 281—Chapter 31 and adopt the following new chapter in lieu thereof:
TITLE V
NONTRADITIONAL STUDENTS
CHAPTER 31
PRIVATE INSTRUCTION AND DUAL ENROLLMENT
281—31.1(299,299A) General. Any parent, guardian, or legal custodian of a child of compulsory attendance age may place the child under competent private instruction or independent private instruction in adherence to all provisions within Iowa Code chapter 299A. This includes any child identified as requiring special education under Iowa Code chapter 256B. If a child’s performance indicates a need for special education, the child will be referred and evaluated as indicated in Iowa Code section 299A.9.
281—31.2(299,299A) Definitions. For purposes of this chapter:
The following terms apply as defined in Iowa Code section 299A.1:
“Competent private instruction.”
“Independent private instruction.”
“Private instruction.”
The following term applies as defined in Iowa Code section 299A.6:
“Adequate progress.”
281—31.3(299,299A) Competent private instruction.
	31.3(1) By licensed practitioner. Competent private instruction by a licensed practitioner complies with this chapter.
	a. 	Instruction under this subrule may include a home school assistance program. A home school assistance program is provided by instructional assistance and supervision to a parent, guardian, or legal custodian providing instruction to a child through an accredited nonpublic school or public school district by an appropriately certified or licensed educator.
	b. 	If instruction is provided through a public school district:
	(1)	The child will be enrolled and included in the basic enrollment of the school district.
	(2)	Iowa Code sections 299A.3 through 299A.7 do not apply in this circumstance with the exception of the reporting provision in Iowa Code section 299A.3(1).
	c. 	If a person is a privately retained licensed practitioner (who possesses a valid Iowa teaching certificate or practitioner license, including a substitute teacher’s license or a substitute authorization that is appropriate to the grade level of the student), that practitioner may provide competent private instruction.
	(1)	The duties of a licensed teacher who instructs or provides instructional supervision of a student include the following:
	1.	Contact with the student and the student’s parent, guardian, or legal or actual custodian at least twice per 45 days of instruction, during which time the teacher practitioner fulfills the duties described below. One of every two contacts will be face-to-face with the student.
	2.	Consulting with and advising the student’s parent, guardian, or legal or actual custodian as requested by the student’s parent, guardian, or legal or actual custodian or as deemed necessary in the professional judgment of the practitioner.
	3.	Providing formal and informal assessments of the student’s progress to the student and the student’s parent, guardian, or legal or actual custodian.
	4.	Annually maintaining a diary, record, or log of visitations and assistance provided.
	5.	Referring to the child’s district of residence for evaluation of a child who the practitioner has reason to believe may need special education.
	(2)	A licensed Iowa practitioner who is employed under this rule will not serve in that capacity on behalf of more than 25 families, or more than 50 children of compulsory attendance age, in an academic year unless the service is provided pursuant to the teacher’s employment with a nonaccredited nonpublic entity.
A licensed practitioner may seek exemption from the above limitation by submitting a written request to the director of the department of education. Exemptions will be granted when the director is satisfied that the limitation will pose a substantial hardship on the person or the school providing instruction or instructional supervision and that the best interests of all children being served by the practitioner will continue to be met.
	31.3(2) By parent, guardian, or legal custodian. A parent, guardian, or legal custodian without a current Iowa teaching license providing competent private instruction for any child of compulsory age will:
	a. 	Provide a report to the school district of residence of the child within 30 days of commencing instruction under this rule, which report demonstrates compliance with Iowa Code chapter 299A and this chapter.
	b. 	Annually evaluate the child to determine whether the child is making adequate progress.
	c. 	Report the child’s annual evaluation to the school district of residence of the child and to the department of education by August 1.
281—31.4(299,299A) Annual achievement evaluations.
	31.4(1) General. Each child receiving competent private instruction will be evaluated annually by May 31 through the use of:
	a. 	A nationally recognized standardized achievement evaluation; or
	b. 	Other assessment tool selected by parent, guardian, or legal custodian from an approved list provided by the department of education, which will include:
	(1)	The costs and administration time of listed evaluations, and
	(2)	A process to approve new or alternate assessments that meet the provisions of Iowa Code chapter 299A.
	31.4(2) Duties of educational agencies. The director of the department of education, or the director’s designee, which may include a school district or an area education agency (AEA), will:
	a. 	Conduct annual evaluations at a time and place determined by the person responsible for conducting the evaluation, which includes but is not limited to purchasing of evaluation materials, giving the evaluations, scoring and interpreting the evaluations, and reporting the evaluation results; and
	b. 	Provide for the parent, guardian, or legal custodian of the child to be present when the child is evaluated.
	31.4(3) Additional testing. If requested, the school district or AEA will conduct annual evaluations at no cost to the parent, guardian, or legal custodian. Further:
	a. 	The parent, guardian, or legal custodian under competent private instruction is not required to reimburse any of the evaluation costs; and
	b. 	The annual achievement evaluation does not meet dual enrollment purposes under Iowa Code section 299A.8.
	31.4(4) Additional evidence of progress. A parent, guardian, or legal custodian of a child may submit, as evidence of adequate academic progress, completed assessment evaluations, other than the annual achievement evaluation, if assessment evaluations are administered as part of the competent private instruction.
	a. 	A parent, guardian, or legal or actual custodian of a child subject to the annual assessment requirement may arrange to have an appropriately licensed Iowa practitioner review a portfolio of evidence of the child’s progress annually by May 31.
	(1)	A single evaluator will be designated by the parent, guardian, or legal or actual custodian who has selected the portfolio evaluation option for annual assessment. The evaluator so identified will be approved by the superintendent of the local school district or the superintendent’s designee and will hold a valid Iowa practitioner license or teacher certificate appropriate to the ages and grade levels of the children whose portfolios are being assessed.
	(2)	The child’s portfolio will contain evidence of academic progress in the minimum curriculum areas of reading, language arts, and mathematics if the child is in grades 1 through 5. For children in grades 6 through 12, the portfolio will contain evidence in the minimum curriculum areas of reading, language arts, mathematics, science, and social studies.
	b. 	For a child subject to annual assessment under this rule who is enrolled as a student of a correspondence school that is a member of an accrediting association recognized by the federal Department of Education and accredited for elementary and secondary education, the district of residence and the department will accept the annual report of progress (report card) sent by the correspondence school to the child’s parent, guardian, or legal or actual custodian if the annual report of progress includes a listing of subjects taken and grades received. A passing grade in all content areas for which annual assessment is required is deemed evidence of adequate progress for the purpose of annual assessment.
	31.4(5) Reporting of evaluation results. Evaluation results will be handled pursuant to Iowa Code section 22.7(1) and reported by the evaluation administrator to the child’s parent, guardian, or legal custodian; the school district of residence of the child; and the department of education.
	31.4(6) Failure to make adequate progress—notice to parents. If annual evaluation results indicate the child has not made adequate progress:
	a. 	The director of the department of education, or the director’s designee, will notify the parent, guardian, or custodian of the child that the child is required to attend an accredited public or nonpublic school.
	b. 	The child will attend an accredited public or nonpublic school at the start of the next school year until evaluation results indicate the child has made adequate progress, unless, before the beginning of the next school year, the director or director’s designee grants approval for competent private instruction to continue under a plan for remediation.
	31.4(7) Rules of construction.
	a. 	Nothing in this section requires or prohibits testing in any way other than what is set forth in Iowa Code section 256.7(21)“b”(2).
	b. 	The parent, guardian, or custodian of students who are receiving independent private instruction are responsible for the cost of annual assessment if requested, through the local school district or AEA.
	c. 	The parent, guardian, or legal or actual custodian of a child subject to this rule and who has a physical or mental disability so significant that the results of a standardized test would not yield relevant results for assessment purposes may request the department’s approval of an alternative evaluation.
281—31.5(299,299A) Dual enrollment.
	31.5(1) If a parent, guardian, or legal custodian submits a request, the child will be registered in a public school for dual enrollment purposes and included in the public school’s basic enrollment under Iowa Code section 257.6.
	31.5(2) A child who is dual-enrolled will:
	a. 	Be permitted to participate in any academic activities in the district;
	b. 	Be permitted to participate in any extracurricular activities on the same basis as any public school child; and
	c. 	Be counted under Iowa Code section 257.6(1)“a”(6); or
	d. 	In the case of a child in grades 9 through 12, be counted in the same manner as a shared-time pupil under Iowa Code section 257.6(1)“a”(3).
	31.5(3) Enrollment of a child solely for purposes of accessing the annual achievement evaluation does not constitute dual enrollment.
	31.5(4) A child under dual enrollment must receive at least one-quarter of the child’s instruction by way of competent private instruction and no more than three-quarters by way of the district’s academic programs.
281—31.6(299,299A) Home school assistance program. The board of directors of a school district will expend funds received pursuant to Iowa Code section 257.6(1)“a”(5), and amounts designated from the school district’s flexibility account under Iowa Code section 298A.2(2), for providing a home school assistance program. Funds will be expended for intended purposes identified in Iowa Code sections 299A.12(2) through 299A.12(4). A district will not employ as a home school assistance program instructor a person who currently holds only a substitute authorization. A home school assistance program teacher will have contact with the student and the student’s parent, guardian, or legal or actual custodian at least four times per 45 days of instruction. One of every two contacts will be face-to-face with the student.
281—31.7(299,299A) Miscellaneous provisions.
	31.7(1) Special education. Special education services to students in competent private instruction, including dual enrollment for special education services, are governed by Iowa Code section 299A.9.
	31.7(2) Open enrollment. Open enrollment for a student under this chapter is governed by Iowa Code section 282.18. A receiving district may only bill a resident district if the receiving district complies with the provisions of this chapter.
	31.7(3) Instructional materials.
	a. 	A school district will not make monetary payments, including cash and cash equivalents, or give publicly funded resources, directly or indirectly, to the parent, guardian, or legal or actual custodian or to a child receiving competent private instruction. A school district will not purchase texts or supplementary materials for or on behalf of a child receiving competent private instruction if such texts or supplementary materials are not appropriate for use by regularly enrolled students of the school district.
	b. 	A district may provide to children receiving competent private instruction available texts or supplementary materials on the same basis as they are provided to enrolled students and will provide available texts or supplemental instructional materials on the same basis as they are provided to enrolled students when a child is under dual enrollment or in a home school assistance program. If a fee, such as a textbook or towel rental fee, is charged to regularly enrolled students for participation in a class or extracurricular activity, that fee may also be charged to dual-enrolled students on the same basis as it is charged to enrolled students, but only for the specific class or extracurricular activity.
	c. 	The parent, guardian, or legal or actual custodian who provides competent private instruction to a child of compulsory attendance age may access the services and materials available from the AEA by requesting assistance through the school district of residence. The AEA will make services and materials available to the child on the same basis as they are available to regularly enrolled students of the district if the child is dual enrolled or enrolled in a home school assistance program. The district of residence will act as liaison between the parent, guardian, or legal or actual custodian of a child who is receiving competent private instruction and the AEA.
	31.7(4) Driver education. The public school district will offer or make available to all resident students, including those receiving competent private instruction on an equal basis with students enrolled in the district, an approved course in driver education pursuant to Iowa Code section 321.178(1)“c.”
	31.7(5) Private instruction reporting exemption. A parent, guardian, or legal or actual custodian of a child of compulsory attendance age providing competent private instruction to the child under Iowa Code section 299A.3 may meet, but is not required to meet, the provisions of Iowa Code section 299A.3.
The reporting option provided in this subrule is not available to any parent, guardian, or legal or actual custodian who requests services from a school district or AEA under this chapter, including the provision of instructional materials, assistance from a home school assistance program, dual enrollment, open enrollment, or special education services. Parents who elect the reporting option under this subrule and who request testing assistance under or an approved course in driver education under subrule 31.5(6) need not complete any particular form, but must demonstrate that the child is receiving competent private instruction pursuant to this chapter.
	31.7(6) Independent private instruction: services available. For students under independent private instruction, only the following services are available: an approved course in driver education and concurrent enrollment programs, also known as district-to-community college sharing, subject to the terms of Iowa Code section 261E.8.
	31.7(7) Student records confidential. Personal information in records pursuant to this chapter will be kept confidential in compliance with district student directory policy in accordance with Iowa Code section 22.7(1).
These rules are intended to implement Iowa Code chapters 299 and 299A.