TITLE VII
SPECIAL EDUCATION
CHAPTER 41
SPECIAL EDUCATION
[Prior to 9/7/88, see Public Instruction Department[670] Ch 12]
DIVISION I
PURPOSE AND APPLICABILITY
281—41.1(256B,34CFR300) Purposes. The purposes of this chapter are as follows:
	1.	To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
	2.	To ensure that the rights of children with disabilities and their parents are protected;
	3.	To assist local educational agencies, area education agencies, and state agencies to provide for the education of all children with disabilities and to allocate responsibilities among those agencies; and
	4.	To assess and ensure the effectiveness of efforts to educate children with disabilities.
281—41.2(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 departments of human services and public health and state schools and programs for children with deafness or children with blindness.
	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.
DIVISION II
DEFINITIONS
281—41.3(256B,34CFR300) Act. “Act” means the Individuals with Disabilities Education Act as amended through August 14, 2006.
281—41.4(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.
281—41.5(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.
281—41.6(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:
	1.	The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;
	2.	Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
	3.	Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
	4.	Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
	5.	Training or technical assistance for a child with a disability or, if appropriate, that child’s family; and
	6.	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.
281—41.7(256B,34CFR300) Charter school. “Charter school” has the meaning given the term in Section 4310(2) of the Elementary and Secondary Education Act of 1965 as amended through December 10, 2015, 20 U.S.C. 6301 et seq. (ESEA).
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.8(256B,34CFR300) Child with a disability. “Child with a disability” refers to a person under 21 years of age, including a child under 5 years of age, who has a disability in obtaining an education. The term includes an individual who is over 6 and under 16 years of age who, pursuant to the statutes of this state, is required to receive a public education; an individual under 6 or over 16 years of age who, pursuant to the statutes of this state, is entitled to receive a public education; and an individual between the ages of 21 and 24 who, pursuant to the statutes of this state, is entitled to receive special education and related services. In federal usage, this refers to infants, toddlers, children and young adults. In these rules, this term is synonymous with “child requiring special education” and “eligible individual.” “Disability in obtaining an education” refers to a condition, identified in accordance with this chapter, which, by reason thereof, causes a child to require special education and support and related services.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.9(256B,34CFR300) Consent.
	41.9(1) Obtaining consent. “Consent” is obtained when all of the following conditions are satisfied:
	a. 	The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication;
	b. 	The parent understands and agrees in writing to the carrying out of the activity for which parental consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
	c. 	The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.
	41.9(2) When revocation of consent is effective. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that occurred after the consent was given and before the consent was revoked).
	41.9(3) Special rule. If a parent of a child revokes consent, in writing, for the child’s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education and related services because of the revocation of consent.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.10(256B,34CFR300) Core academic subjects. “Core academic subjects” means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.
281—41.11(256B,34CFR300) Day; business day; school day. “Day” means calendar day unless otherwise indicated as business day or school day.
	1.	“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 41.148(4)“b.”
	2.	“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.
281—41.12(256B,34CFR300) Educational service agency. “Educational service agency” means a regional public multiservice agency that is authorized by state law to develop, manage, and provide services or programs to LEAs; and is recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary schools and secondary schools of the state. “Educational service agency” includes any other public institution or agency that has administrative control and direction over a public elementary school or secondary school and includes entities that meet the definition of intermediate educational unit in Section 602(23) of the Act as in effect prior to June 4, 1997.
281—41.13(256B,34CFR300) Elementary school. “Elementary school” means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under state law.
281—41.14(256B,34CFR300) Equipment. “Equipment” means machinery, utilities, and built-in equipment and any necessary enclosures or structures to house the machinery, utilities, or equipment. “Equipment” includes other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.
281—41.15(256B,34CFR300) Evaluation. “Evaluation” means procedures used in accordance with rules 281—41.304(256B,34CFR300) to 281—41.311(256B,34CFR300) to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.
281—41.16(256B,34CFR300) Excess costs. “Excess costs” means those costs that are in excess of the average annual per-student expenditure in an LEA during the preceding school year for an elementary school or secondary school student, as may be appropriate, and that must be computed after deducting the following:
	41.16(1) Certain federal funds. Amounts received under Part B of the Act; under Part A of Title I of the ESEA; and under Part A of Title III of the ESEA; and
	41.16(2) Certain state or local funds. Any state or local funds expended for programs that would qualify for assistance under subrule 41.16(1), but excluding any amounts for capital outlay or debt service.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.17(256B,34CFR300) Free appropriate public education. “Free appropriate public education” or “FAPE” means special education and related services that are provided at public expense, under public supervision and direction, and without charge; that meet the standards of the SEA, including the requirements of this chapter; that include an appropriate preschool, elementary school, or secondary school education; and that are provided in conformity with an individualized education program (IEP) that meets the requirements of rules 281—41.320(256B,34CFR300) to 281—41.324(256B,34CFR300).
281—41.18(256B,34CFR300) Highly qualified special education teachers. Rescinded ARC 3387C, IAB 10/11/17, effective 11/15/17.
281—41.19(256B,34CFR300) Homeless children. “Homeless children” has the meaning given the term “homeless children and youths” in Section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless Assistance Act as amended through August 14, 2006, 42 U.S.C. 11431 et seq.
281—41.20(256B,34CFR300) Include. “Include” means that the items named are not all of the possible items that are covered, whether like or unlike the ones named.
281—41.21(256B,34CFR300) Indian and Indian tribe. “Indian” means an individual who is a member of an Indian tribe. “Indian tribe” means any federal or state Indian tribe, settlement, band, rancheria, pueblo, colony, or community, including any Alaska native village or regional village corporation as defined in or established under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.
281—41.22(256B,34CFR300) Individualized education program. “Individualized education program” or “IEP” means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with rules 281—41.320(256B,34CFR300) to 281—41.324(256B,34CFR300). A single IEP for each eligible individual, which specifies all the special education and related services the eligible individual is to receive, is required.
281—41.23(256B,34CFR300) Individualized education program team. “Individualized education program team” or “IEP team” means a group of individuals described in rule 281—41.321(256B,34CFR300) that is responsible for developing, reviewing, or revising an IEP for a child with a disability.
281—41.24(256B,34CFR300) Individualized family service plan. “Individualized family service plan” or “IFSP” has the meaning given the term in Section 636 of the Act.
281—41.25(256B,34CFR300) Infant or toddler with a disability. “Infant or toddler with a disability” means an individual under three years of age who needs early intervention services either because the individual has a condition, based on informed clinical opinion, known to have a high probability of resulting in later delays in growth and development if early intervention services are not provided; or the individual has a developmental delay, which is a 25 percent delay as measured by appropriate diagnostic instruments and procedures, based on informed clinical opinion, in one or more of the following developmental areas: cognitive development, physical development including vision and hearing, communication development, social or emotional development, or adaptive development.
281—41.26(256B,34CFR300) Institution of higher education. “Institution of higher education” has the meaning given the term in Section 101 of the Higher Education Act of 1965 as amended through August 14, 2006, 20 U.S.C. 1021 et seq. (HEA); and also includes any community college receiving funds from the Secretary of the Interior under the Tribally Controlled Community College or University Assistance Act of 1978, 25 U.S.C. 1801 et seq.
281—41.27(256B,34CFR300) Limited English proficient. “Limited English proficient” has the meaning given the term in Section 8101 of the ESEA.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.28(256B,34CFR300) Local educational agency.
	41.28(1) General. “Local educational agency” or “LEA” means a public board of education or other public authority legally constituted within a state for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a state, or for a combination of school districts or counties as are recognized in a state as an administrative agency for its public elementary schools or secondary schools.
	41.28(2) Educational service agencies and other public institutions or agencies. The term includes an educational service agency, as defined in rule 281—41.12(256B,34CFR300) and any other public institution or agency having administrative control and direction of a public elementary school or secondary school, including a public nonprofit charter school that is established as an LEA under state law.
	41.28(3) BIA-funded schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Affairs, and not subject to the jurisdiction of any SEA other than the Bureau of Indian Affairs, but only to the extent that the inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under the Act with the smallest student population.
281—41.29(256B,34CFR300) Native language.
	41.29(1) General. “Native language,” when used with respect to an individual who is limited English proficient, means the following:
	a. 	The language normally used by that individual or, in the case of a child, the language normally used by the parents of the child; or
	b. 	The language normally used by the child in the home or learning environment; this language shall be considered “native language” in all direct contact with a child, including evaluation of the child.
	41.29(2) Special rule. For an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual, such as sign language, Braille, or oral communication.
281—41.30(256B,34CFR300) Parent.
	41.30(1) General. “Parent” means:
	a. 	A biological or adoptive parent of a child;
	b. 	A foster parent, unless state law, regulations, or contractual obligations with a state or local entity prohibit a foster parent from acting as a parent;
	c. 	A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child, but not the state if the child is a ward of the state;
	d. 	An individual acting in the place of a biological or adoptive parent including a grandparent, stepparent, or other relative with whom the child lives or an individual who is legally responsible for the child’s welfare; or
	e. 	A surrogate parent who has been appointed in accordance with rule 281— 41.519(256B,34CFR300) or 20 U.S.C. 1439(a)(5).
	41.30(2) Rules of construction and application. The following rules are to be used to determine whether a party qualifies as a parent:
	a. 	Except as provided in 41.30(2)“b,” the biological or adoptive parent, when attempting to act as the parent under this chapter and when more than one party is qualified to act as a parent under this chapter, must be presumed to be the parent for purposes of this rule unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.
	b. 	If a judicial decree or order identifies a specific person or persons under paragraphs “a” to “d” of subrule 41.30(1) to act as the parent of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the parent for purposes of this rule.
	c. 	“Parent” does not include a public or private agency involved in the education or care of a child or an employee or contractor with any public or private agency involved in the education or care of the child in that employee’s or contractor’s official capacity.
281—41.31(256B,34CFR300) Parent training and information center. “Parent training and information center” means a center assisted under Section 671 or 672 of the Act.
281—41.32(256B,34CFR300) Personally identifiable. “Personally identifiable” means information that contains the name of the child, the child’s parent, or other family member; the address of the child; a personal identifier, such as the child’s social security number or student number; or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
281—41.33(256B,34CFR300) Public agency; nonpublic agency; agency. “Public agency” includes the SEA, LEAs, ESAs, nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the state that are responsible for providing education to children with disabilities. “Nonpublic agency” includes any private organization of whatever form that is responsible for providing education to children with disabilities and that is not a public agency. “Agency” includes public agencies and nonpublic agencies.
281—41.34(256B,34CFR300) Related services.
	41.34(1) General. “Related services” means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education. “Related services” includes speech-language pathology and audiology services; interpreting services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; early identification and assessment of disabilities in children; counseling services, including rehabilitation counseling; orientation and mobility services; and medical services for diagnostic or evaluation purposes. “Related services” also includes school health services and school nurse services, social work services in schools, and parent counseling and training.
	41.34(2) Exception; services that apply to children with surgically implanted devices, including cochlear implants.
	a. 	“Related services” does not include a medical device that is surgically implanted, the optimization of that device’s functioning (e.g., mapping), maintenance of that device, or the replacement of that device.
	b. 	Nothing in paragraph “a” of this subrule shall:
	(1)	Limit the right of a child with a surgically implanted device (e.g., cochlear implant) to receive related services as listed in subrule 41.34(1) that are determined by the IEP team to be necessary for the child to receive FAPE;
	(2)	Limit the responsibility of a public agency to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; or
	(3)	Prevent the routine checking of an external component of a surgically implanted device to make sure it is functioning properly, as required in rule 281—41.113(256B,34CFR300).
	41.34(3) Individual related services terms defined. The terms used in this definition are defined as follows:
	a. 	“Audiology” includes:
	(1)	Identification of children with hearing loss;
	(2)	Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;
	(3)	Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lipreading), hearing evaluation, and speech conservation;
	(4)	Creation and administration of programs for prevention of hearing loss;
	(5)	Counseling and guidance of children, parents, and teachers regarding hearing loss; and
	(6)	Determination of children’s needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.
	b. 	“Counseling services” means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.
	c. 	“Early identification and assessment of disabilities in children” means the implementation of a formal plan for identifying a disability as early as possible in a child’s life.
	d. 	“Interpreting services” includes the following:
	(1)	For children who are deaf or hard of hearing, oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services, and transcription services, such as communication access real-time translation (CART), C-Print, and TypeWell; and
	(2)	For children who are deaf-blind, special interpreting services.
	e. 	“Medical services” means services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services.
	f. 	“Occupational therapy” means services provided by a qualified occupational therapist, and includes the following:
	(1)	Improving, developing, or restoring functions impaired or lost through illness, injury, or deprivation;
	(2)	Improving ability to perform tasks for independent functioning if functions are impaired or lost; and
	(3)	Preventing, through early intervention, initial or further impairment or loss of function.
	g. 	“Orientation and mobility services” means services provided to blind or visually impaired children by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community, and includes teaching children the following, as appropriate:
	(1)	Spatial and environmental concepts and use of information received by the senses (such as sound, temperature and vibrations) to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);
	(2)	To use the long cane or a service animal to supplement visual travel skills or as a tool for safely negotiating the environment for children with no available travel vision;
	(3)	To understand and use remaining vision and distance low vision aids; and
	(4)	Other concepts, techniques, and tools.
	h. 	“Parent counseling and training” means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s IEP or IFSP.
	i. 	“Physical therapy” means services provided by a qualified physical therapist.
	j. 	“Psychological services” includes the following:
	(1)	Administering psychological and educational tests, and other assessment procedures;
	(2)	Interpreting assessment results;
	(3)	Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning;
	(4)	Consulting with other staff members in planning school programs to meet the special educational needs of children as indicated by psychological tests, interviews, direct observation, and behavioral evaluations;
	(5)	Planning and managing a program of psychological services, including psychological counseling for children and parents; and
	(6)	Assisting in developing positive behavioral intervention strategies.
	k. 	“Recreation” includes the following:
	(1)	Assessment of leisure function;
	(2)	Therapeutic recreation services;
	(3)	Recreation programs in schools and community agencies; and
	(4)	Leisure education.
	l. 	“Rehabilitation counseling services” means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to a student with a disability by vocational rehabilitation programs funded under the Rehabilitation Act of 1973 as amended through August 14, 2006, 29 U.S.C. 701 et seq.
	m. 	“School health services and school nurse services” means health services that are designed to enable a child with a disability to receive FAPE as described in the child’s IEP. School nurse services are services provided by a qualified school nurse. School health services are services that may be provided by either a qualified school nurse or other qualified person.
	n. 	“Social work services in schools” includes the following:
	(1)	Preparing a social or developmental history concerning a child with a disability;
	(2)	Group and individual counseling with the child and family;
	(3)	Working in partnership with parents and others on those problems in a child’s living situation (home, school, and community) that affect the child’s adjustment in school;
	(4)	Mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program; and
	(5)	Assisting in developing positive behavioral intervention strategies.
	o. 	“Speech-language pathology services” includes the following:
	(1)	Identification of children with speech or language impairments;
	(2)	Diagnosis and appraisal of specific speech or language impairments;
	(3)	Referral for medical or other professional attention necessary for the habilitation of speech or language impairments;
	(4)	Provision of speech and language services for the habilitation or prevention of communicative impairments; and
	(5)	Counseling and guidance of parents, children, and teachers regarding speech and language impairments.
	p. 	“Transportation” includes the following:
	(1)	Travel to and from school and between schools;
	(2)	Travel in and around school buildings; and
	(3)	Specialized equipment, such as special or adapted buses, lifts, and ramps, if required to provide special transportation for a child with a disability.
	41.34(4) Rule of construction. A particular service listed in this rule may also be considered special education under rule 281—41.39(256B,34CFR300), a supplementary aid and service under rule 281—41.42(256B,34CFR300), or a support service under rule 281—41.409(256B,34CFR300).
281—41.35(34CFR300) Scientifically based research. Rescinded ARC 3387C, IAB 10/11/17, effective 11/15/17.
281—41.36(256B,34CFR300) Secondary school. “Secondary school” means a nonprofit institutional day or residential school, including a public secondary charter school that provides secondary education, as determined under state law, except that it does not include any education beyond grade 12.
281—41.37(34CFR300) Services plan. “Services plan” has the meaning given the term in 34 CFR 300.37.
281—41.38(34CFR300) Secretary. “Secretary” means the Secretary of the United States Department of Education.
281—41.39(256B,34CFR300) Special education.
	41.39(1) General. “Special education” means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including:
	a. 	Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
	b. 	Instruction in physical education.
	41.39(2) Specific services included in special education. Special education includes each of the following, if the services otherwise meet the requirements of subrule 41.39(1):
	a. 	Any service listed in this chapter, including support services, related services, and supplemental aids and services, that is specially designed instruction under subrule 41.39(1) or state standards or is required to assist an eligible individual in taking advantage of, or responding to, educational programs and opportunities;
	b. 	Travel training; and
	c. 	Vocational education.
	41.39(3) Individual special education terms defined. The terms in this definition are defined as follows:
	a. 	“At no cost” means that all specially designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program. An AEA or LEA may ask, but not require, parents of children with disabilities to use public insurance or benefits or private insurance proceeds to pay for services if they would not incur a financial cost, as described in rule 281—41.154(256B,34CFR300).
	b. 	“Physical education” means the development of physical and motor fitness; fundamental motor skills and patterns; and skills in aquatics, dance, and individual and group games and sports, including intramural and lifetime sports; and includes special physical education, adapted physical education, movement education, and motor development.
	c. 	“Specially designed instruction” means adapting, as appropriate to the needs of an eligible child under this chapter, the content, methodology, or delivery of instruction:
	(1)	To address the unique needs of the child that result from the child’s disability; and
	(2)	To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.
	d. 	“Travel training” means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to:
	(1)	Develop an awareness of the environment in which they live; and
	(2)	Learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community).
	e. 	“Vocational education” means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career not requiring a baccalaureate or advanced degree.
281—41.40(34CFR300) State. “State” means each of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas.
281—41.41(256B,34CFR300) State educational agency. “State educational agency” or “SEA” means the state board of education or other agency or officer primarily responsible for the state supervision of public elementary schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the governor or by state law.
281—41.42(256B,34CFR300) Supplementary aids and services. “Supplementary aids and services” means aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with rules 281—41.114(256B,34CFR300) to 281—41.116(256B,34CFR300).
281—41.43(256B,34CFR300) Transition services.
	41.43(1) General. “Transition services” means a coordinated set of activities for a child with a disability and meets the following description:
	a. 	Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to postschool activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
	b. 	Is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and includes the following:
	(1)	Instruction;
	(2)	Related services;
	(3)	Community experiences;
	(4)	The development of employment and other post-school adult living objectives; and
	(5)	If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.
	41.43(2) May be special education or a related service. Transition services for children with disabilities may be special education, if provided as specially designed instruction, or a related service if required to assist a child with a disability to benefit from special education.
281—41.44(34CFR300) Universal design. “Universal design” has the meaning given the term in Section 3 of the Assistive Technology Act of 1998 as amended through August 14, 2006, 29 U.S.C. 3002.
281—41.45(256B,34CFR300) Ward of the state.
	41.45(1) General. Subject to subrules 41.45(2) and 41.45(3), “ward of the state” means a child who, as determined by the state where the child resides, is:
	a. 	A foster child;
	b. 	In the custody of a public child welfare agency; or
	c. 	A ward of the state.
	41.45(2) Exception. “Ward of the state” does not include a foster child who has a foster parent who meets the definition of a parent in rule 281—41.30(256B,34CFR300).
	41.45(3) Interpretive note. “Ward of the state” is a term rarely used in Iowa law. It would be an extremely rare occurrence for a child to be a ward of the state while not being either a foster child or in the custody of a public child welfare agency.
281—41.46 to 41.49  Reserved.
281—41.50(256B,34CFR300) Other definitions associated with identification of eligible individuals. The following terms may be encountered in the identification of children with disabilities.
	41.50(1) Autism. “Autism” means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before the age of three, which adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. Autism does not apply if a child’s educational performance is adversely affected primarily because the child has a behavior disorder, as defined in subrule 41.50(2). A child who manifests the characteristics of autism after the age of three could be identified as having autism if the criteria in the first sentence of this subrule are satisfied. This term includes all conditions described by the term “autism spectrum disorder,” which adversely affects a child’s educational performance.
	41.50(2) Behavior disorder. “Behavior disorder” (or emotional disturbance) means any condition that exhibits one or more of the following five characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance.
	a. 	An inability to learn that cannot be explained by intellectual, sensory, or health factors.
	b. 	An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
	c. 	Inappropriate types of behavior or feelings under normal circumstances.
	d. 	A general pervasive mood of unhappiness or depression.
	e. 	A tendency to develop physical symptoms or fears associated with personal or school problems.
	41.50(3) Deaf-blindness. “Deaf-blindness” means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
	41.50(4) Deafness. “Deafness” means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, and that adversely affects a child’s educational performance.
	41.50(5) Hearing impairment. “Hearing impairment” means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in 41.50(4).
	41.50(6) Intellectual disability. “Intellectual disability” means significantly subaverage general intellectual functioning, that exists concurrently with deficits in adaptive behavior and is manifested during the developmental period, and which adversely affects a child’s educational performance.
	41.50(7) Multiple disabilities. “Multiple disabilities” means concomitant impairments, such as intellectual disability-blindness or intellectual disability-orthopedic impairment, the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.
	41.50(8) Orthopedic impairment. “Orthopedic impairment” means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly; impairments caused by disease, e.g., poliomyelitis or bone tuberculosis; and impairments from other causes, e.g., cerebral palsy, amputations, and fractures or burns that cause contractures.
	41.50(9) Other health impairment. “Other health impairment” means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that:
	a. 	Is due to a chronic or acute health problem such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
	b. 	Adversely affects a child’s educational performance.
	41.50(10) Specific learning disability. “Specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
	41.50(11) Speech or language impairment. “Speech or language impairment” means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.
	41.50(12) Traumatic brain injury. “Traumatic brain injury” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
	41.50(13) Visual impairment. “Visual impairment,” including blindness, means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness. Individuals who have a medically diagnosed expectation of visual deterioration in adolescence or early adulthood may qualify for instruction in Braille reading and writing.
[ARC 9376B, IAB 2/23/11, effective 3/30/11]
281—41.51(256B,34CFR300) Other definitions applicable to this chapter. The following additional definitions apply to this chapter.
	41.51(1) Appropriate activities. “Appropriate activities” means those activities that are consistent with age-relevant abilities or milestones that typically developing children of the same age would be performing or would have achieved.
	41.51(2) Board. “Board” means the Iowa state board of education.
	41.51(3) Department. “Department” means the state department of education.
	41.51(4) Director. “Director” means the director of special education of the AEA.
	41.51(5) Director of education. “Director of education” means the state director of the department of education.
	41.51(6) Early childhood special education. “Early childhood special education” or “ECSE” means special education and related services for those individuals below the age of six.
	41.51(7) General curriculum. “General curriculum” means the curriculum adopted by an LEA or schools within the LEA for all children from preschool through secondary school.
	41.51(8) General education environment. “General education environment” includes, but is not limited to, the classes, classrooms, services, and nonacademic and extracurricular services and activities made available by an agency to all students. For preschool children who require special education, the general education environment is the environment where appropriate activities occur for children of similar age without disabilities.
	41.51(9) General education interventions. “General education interventions” means attempts to resolve presenting problems or behaviors of concern in the general education environment prior to conducting a full and individual evaluation as described in rule 281—41.312(256B,34CFR300).
	41.51(10) Head injury. “Head injury” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects an individual’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative or brain injuries induced by birth trauma.
	41.51(11) Multicategorical. “Multicategorical” means special education in which the individuals receiving special education have different types of disabilities.
	41.51(12) School district of the child’s residence. “School district of the child’s residence” or “district of residence of the child” is that school district in which the parent of the individual resides, subject to the following:
	a. 	If an eligible individual is physically present (“lives”) in a district other than the district of residence of the individual’s parent for a primary purpose other than school attendance, then the district of residence of the individual is the district in which the individual resides, and that district becomes responsible for providing and funding the special education and related services.
	b. 	If an eligible individual is physically present (“lives”) in a district other than the district of residence of the individual’s parent solely for the purpose of school attendance, the district of residence remains that of the parent; therefore, the parent must pay tuition to the receiving district. The district of residence cannot be held responsible for tuition payment.
	c. 	If an individual is physically present (“lives”) in an intermediate care facility, residential care facility, or other similar facility, the individual’s district of residence is deemed to be that of the individual’s parents.
	d. 	“Children living in a foster care facility” are individuals requiring special education 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. District of residence of an individual living in a foster care facility and financial responsibility for special education and related services are determined pursuant to paragraph 41.907(5)“a.”
	e. 	“Children living in a treatment facility” are individuals requiring special education who are living in a facility providing residential treatment as defined in Iowa Code section 125.2. District of residence of an individual living in a treatment facility and financial responsibility for special education and related services are determined pursuant to paragraph 41.907(5)“b.”
	f. 	“Children placed by the district court” are pupils requiring special education for whom parental rights have been terminated and who have been placed in a facility or home by a district court. Financial responsibility for special education and related services of individuals placed by the district court is determined pursuant to subrule 41.907(6).
	41.51(13) Severely disabled. “Severely disabled” is an adjective applied to individuals with any severe disability including individuals who are profoundly, multiply disabled.
	41.51(14) Signature. “Signature” has the meaning given the term in Iowa Code section 4.1(39).
	41.51(15) Systematic progress monitoring. “Systematic progress monitoring” means a systematic procedure for collecting and displaying an individual’s performance over time for the purpose of making educational decisions.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.52 to 41.99  Reserved.
DIVISION III
RULES APPLICABLE TO THE STATE AND TO ALL AGENCIES
281—41.100(256B,34CFR300) Eligibility for assistance. To be eligible for assistance under Part B of the Act for a fiscal year, the state shall submit a plan that provides assurances to the Secretary that the state has in effect policies and procedures to ensure that the state meets the conditions in rules 281—41.101(256B,34CFR300) to 281—41.176(256B).
281—41.101(256B,34CFR300) Free appropriate public education (FAPE).
	41.101(1) General. A free appropriate public education must be available to all children residing in the state for the time period permitted by Iowa Code chapter 256B, including children with disabilities who have been suspended or expelled from school, as provided for in subrule 41.530(4).
	41.101(2) FAPE for children beginning at the age of three. The state shall ensure that:
	a. 	The obligation to make FAPE available to each eligible child residing in the state begins no later than the child’s third birthday; and
	b. 	An IEP is in effect for the child by that date.
	c. 	If a child’s third birthday occurs during the summer, the child’s IEP team shall determine the date when services under the IEP will begin.
	41.101(3) Children advancing from grade to grade. FAPE shall be available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade and is advancing from grade to grade. The determination that a child described in the first sentence of this subrule is eligible under this chapter must be made on an individual basis by the group responsible within the child’s LEA for making eligibility determinations.
281—41.102(256B,34CFR300) Limitation—exceptions to FAPE for certain ages.
	41.102(1) Exceptions. The obligation to make FAPE available to all children with disabilities does not apply with respect to the following:
	a. 	Children over the age provided in Iowa Code chapter 256B, unless otherwise provided in this rule.
	b. 	Certain children incarcerated in adult prisons.
	(1)	General. A child aged 18 to 21 who, in the last educational placement prior to incarceration in an adult correctional facility:
	1.	Was not actually identified as being a child with a disability under this chapter; and
	2.	Did not have an IEP under Part B of the Act.
	(2)	Inapplicability of exception. The exception in 41.102(1)“b”(1) does not apply to a child with disabilities, aged 18 to 21, who:
	1.	Had been identified as a child with a disability under this chapter and had received services in accordance with an IEP, but who left school prior to incarceration; or
	2.	Did not have an IEP in the child’s last educational setting, but who had actually been identified as a child with a disability under this chapter.
	c. 	Graduates with a regular high school diploma.
	(1)	General. Children with disabilities who have graduated from high school with a regular high school diploma.
	(2)	Inapplicability of exception. The exception in 41.102(1)“c”(1) does not apply to children who have graduated from high school, but have not been awarded a regular high school diploma.
	(3)	Graduation is a change in placement. Graduation from high school with a regular high school diploma constitutes a change in placement requiring written prior notice in accordance with rule 281—41.503(256B,34CFR300).
	(4)	Rule of construction. As used in 41.102(1)“c”(1) to (3), the term “regular high school diploma” means the standard high school diploma awarded to the preponderance of students in the state that is fully aligned with state standards, or a higher diploma, except that a regular high school diploma shall not be aligned to the alternate academic achievement standards described in Section 1111(b)(1)(E) of the ESEA. A regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential.
	d. 	Reserved.
	e. 	Eligibility beyond period specified in Iowa Code chapter 256B. An agency may continue the special education and related services of an eligible individual beyond the time period specified in the Iowa Code if the person had an accident or prolonged illness that resulted in delays in the initiation of or in the interruption of that individual’s special education program. The AEA director of special education must request approval from the department, which may be granted for up to the individual’s twenty-fourth birthday.
	41.102(2) Documents relating to exceptions. The state must ensure that the information it has provided to the Secretary regarding the exceptions in subrule 41.102(1) is current and accurate.
[ARC 3766C, IAB 4/25/18, effective 5/30/18]
281—41.103(256B,34CFR300) FAPE—methods and payments.
	41.103(1) All means available to meet Part B requirements. The state may use whatever state, local, federal, and private sources of support that are available in the state to meet the requirements of Part B of the Act.
	41.103(2) Third-party obligations not eliminated. Nothing in this chapter relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability.
	41.103(3) No delay in implementing an IEP. Consistent with rule 281—41.323(256B,34CFR300), there shall be no delay in implementing an eligible individual’s IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.104(256B,34CFR300) Residential placement. If placement in a public or private residential program is necessary to provide special education and related services to an eligible individual, the program, including nonmedical care and room and board, must be at no cost to the parents of the child.
281—41.105(256B,34CFR300) Assistive technology.
	41.105(1) General. Each public agency must ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in rules 281—41.5(256B,34CFR300) and 281—41.6(256B,34CFR300), respectively, are made available to a child with a disability if required as a part of the child’s:
	a. 	Special education under rule 281—41.39(256B,34CFR300);
	b. 	Related services under rule 281—41.34(256B,34CFR300); or
	c. 	Supplementary aids and services under rule 281—41.42(256B,34CFR300) and 41.114(2)“b.”
	41.105(2) Use of assistive technology devices at home or in other settings. On a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings is required if the child’s IEP team determines that the child needs access to those devices in order to receive FAPE.
281—41.106(256B,34CFR300) Extended school year services.
	41.106(1) General. Each public agency must ensure that extended school year services are available as necessary to provide FAPE.
	a. 	Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with rules 281—41.320(256B,34CFR300) to 281—41.324(256B,34CFR300), that the services are necessary for the provision of FAPE to the child.
	b. 	In implementing the requirements of this rule, a public agency may not limit extended school year services to particular categories of disability or unilaterally limit the type, amount, or duration of those services.
	41.106(2) Definition. As used in this rule, the term “extended school year services” means special education and related services that meet the standards of the SEA and are provided to a child with a disability beyond the normal school year of the public agency, in accordance with the child’s IEP and at no cost to the parents of the child.
281—41.107(256B,34CFR300) Nonacademic services.
	41.107(1) General. Each public agency must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.
	41.107(2) Definition. Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.
281—41.108(256B,34CFR300) Physical education. All public agencies in the state shall comply with the following:
	41.108(1) General. Physical education services, specially designed if necessary, must be made available to every child with a disability receiving FAPE, unless the public agency enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.
	41.108(2) Regular physical education. Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless the child is enrolled full-time in a separate facility or the child needs specially designed physical education, as prescribed in the child’s IEP.
	41.108(3) Special physical education. If specially designed physical education is prescribed in a child’s IEP, the public agency responsible for the education of that child must provide the services directly or make arrangements for those services to be provided through other public or private programs.
	41.108(4) Education in separate facilities. The public agency responsible for the education of a child with a disability who is enrolled in a separate facility must ensure that the child receives appropriate physical education services in compliance with this rule.
281—41.109(256B,34CFR300) Full educational opportunity goal (FEOG). Each public agency shall ensure the provision of full educational opportunity to children requiring special education. Each public agency shall have in effect policies and procedures to demonstrate that the agency has established a goal of providing full educational opportunity to all children with disabilities, aged birth to 21, and a detailed timetable for accomplishing that goal.
281—41.110(256B,34CFR300) Program options. Each public agency shall take steps to ensure that its children with disabilities have available to them the variety of educational programs and services available to nondisabled children in the area served by the agency, including art, music, industrial arts, consumer and homemaking education, and vocational education.
281—41.111(256B,34CFR300) Child find.
	41.111(1) General. All children with disabilities residing in the state, including children with disabilities who are homeless children or are wards of the state and children with disabilities who attend private schools, regardless of the severity of their disability, and who are in need of special education and related services, must be identified, located, and evaluated; and a practical method must be developed and implemented to determine which children are currently receiving needed special education and related services.
	41.111(2) High-quality general education instruction; general education interventions.
	a. 	As a component of efficient and effective, high-quality general education instruction, it shall be the responsibility of the general education program of each LEA to provide additional support and assistance to all students who may need such additional support and assistance to attain the educational standards of the LEA applicable to all children. Receipt of such additional support and assistance, when considered alone, does not create a suspicion that a child is an eligible individual under this chapter. Activities under this paragraph shall be provided by general education personnel, with occasional or incidental assistance from special education instructional and support personnel.
	b. 	General education interventions involving activities described in rule 281— 41.312(256B,34CFR300) are a recognized component of an AEA’s child find policy pursuant to the policies set forth in subrule 41.407(1) and the procedures set forth in subrule 41.407(2).
	41.111(3) Other children in child find. Child find also must include the following:
	a. 	A child who is suspected of being a child with a disability and in need of special education, even though the child is advancing from grade to grade; and
	b. 	Highly mobile children, including migrant children.
	41.111(4) Classification based on disability not required. Nothing in the Act requires that children be classified by their disability so long as each child who has a disability that is listed in 34 CFR Section 300.8 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act.
	41.111(5) Evaluation required when disability is suspected. At the point when a public agency suspects a child is a child with a disability under this chapter, the public agency must seek parental consent for an initial evaluation of that child, pursuant to subrule 41.300(1).
	41.111(6) Rule of construction—suspicion of a disability. As a general rule, a public agency suspects a child is a child with a disability when the public agency is aware of facts and circumstances that, when considered as a whole, would cause a reasonably prudent public agency to believe that the child’s performance might be explained because the child is an eligible individual under this chapter.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.112(256B,34CFR300) Individualized education programs (IEPs). An IEP, or an IFSP that meets the requirements of Section 636(d) of the Act (for eligible individuals aged birth to three), is developed, reviewed, and revised for each child with a disability in accordance with rules 281—41.320(256B,34CFR300) to 281—41.324(256B,34CFR300), except as provided in 41.300(2)“d”(2).
281—41.113(256B,34CFR300) Routine checking of hearing aids and external components of surgically implanted medical devices.
	41.113(1) Hearing aids. Each public agency must ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.
	41.113(2) External components of surgically implanted medical devices.
	a. 	Subject to 41.113(2)“b,” each public agency must ensure that the external components of surgically implanted medical devices are functioning properly.
	b. 	For a child with a surgically implanted medical device who is receiving special education and related services under this chapter, a public agency is not responsible for the postsurgical maintenance, programming, or replacement of the medical device that has been surgically implanted or of an external component of the surgically implanted medical device.
281—41.114(256B,34CFR300) Least restrictive environment (LRE).
	41.114(1) General. Except as provided in 41.324(4)“a” regarding children with disabilities in adult prisons, each public agency in the state shall have policies and procedures in place to meet the LRE requirements of this rule and rules 281—41.115(256B,34CFR300) to 281—41.120(256B,34CFR300).
	41.114(2) Public agency assurances. Each public agency must ensure and maintain adequate documentation that:
	a. 	To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
	b. 	Special classes, separate schooling, or other removal of children with disabilities from the general education environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
	41.114(3) State funding mechanism. A state funding mechanism must not result in placements that violate the requirements of this rule; and the state must not use a funding mechanism by which funds are distributed on the basis of the type of setting in which a child is served or which will result in the failure to provide a child with a disability FAPE according to the unique needs of the child, as described in the child’s IEP.
281—41.115(256B,34CFR300) Continuum of alternative services and placements.
	41.115(1) General. Each public agency must ensure that a continuum of alternative services and placements is available to meet the needs of children with disabilities for special education and related services.
	41.115(2) Requirements. The continuum required in subrule 41.115(1) must meet the following requirements:
	a. 	Include the alternative placements listed in the definition of special education under rule 281—41.39(256B,34CFR300) (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and
	b. 	Make provision for supplementary services, such as resource room or itinerant instruction, to be provided in conjunction with regular class placement.
281—41.116(256B,34CFR300) Placements.
	41.116(1) General. In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure the following:
	a. 	The placement decision shall be made:
	(1)	By a group of persons, including the parents and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and
	(2)	In conformity with the LRE provisions of this chapter, including rules 281—41.114(256B,34CFR300) to 281—41.118(256B,34CFR300);
	b. 	The child’s placement shall be:
	(1)	Determined at least annually;
	(2)	Based on the child’s IEP; and
	(3)	Located as close as possible to the child’s home;
	c. 	Unless the IEP of a child with a disability requires some other arrangement, the child shall be educated in the school that he or she would attend if nondisabled;
	d. 	In selecting the LRE, the agency shall consider any potential harmful effect on the child or on the quality of services that he or she needs; and
	e. 	A child with a disability shall not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.
	41.116(2) Special rule: Iowa Code section 282.9. For eligible individuals subject to Iowa Code section 282.9, any decision of educational setting for such eligible individuals shall be made in accordance with this rule.
	41.116(3) Special rule: disciplinary placements. If a child is placed in an interim alternative educational setting pursuant to rules 281—41.530(256B,34CFR300) and 281—41.531(256B,34CFR300), that setting shall be determined by the IEP team.
	41.116(4) Special considerations. The team establishing the eligible individual’s placement must answer the following questions.
	a. 	Questions concerning least restrictive environment. When developing an eligible individual’s IEP and placement, the team shall consider the following questions, as well as any other factor appropriate under the circumstances, regarding the provision of special education and related services:
	(1)	What accommodations, modifications and adaptations does the individual require to be successful in a general education environment?
	(2)	Why is it not possible for these accommodations, modifications and adaptations to be provided within the general education environment?
	(3)	What supports are needed to assist the teacher and other personnel in providing these accommodations, modifications and adaptations?
	(4)	How will receipt of special education services and activities in the general education environment impact this individual?
	(5)	How will provision of special education services and activities in the general education environment impact other students?
	b. 	Additional questions concerning special school placement. When some or all of an eligible individual’s special education is to be provided in a special school, the individual’s IEP, or an associated or attached document, shall include specific answers to the following additional four questions:
	(1)	What are the reasons the eligible individual cannot be provided an education program in an integrated school setting?
	(2)	What supplementary aids and supports are needed to support the eligible individual in the special education program?
	(3)	Why is it not possible for these aids and supports to be provided in an integrated setting?
	(4)	What is the continuum of placements and services available for the eligible individual?
	41.116(5) Out-of-state placements. When special education and related services appropriate to an eligible individual’s needs are not available within the state, or when appropriate special education and related services in an adjoining state are nearer than the appropriate special education and related services in Iowa, the director may certify an eligible individual for appropriate special education and related services outside the state in accordance with Iowa Code section 273.3 when it has been determined by the department that the special education and related services meet standards set forth in these rules.
	41.116(6) Department approval for out-of-state placement. Contracts may be negotiated with out-of-state agencies, in accordance with Iowa Code section 273.3(5), with department approval. The department uses the following procedures to determine if an out-of-state agency meets the rules of the board:
	a. 	When requested to determine an agency’s approval status, the department contacts the appropriate state education agency to determine if that state’s rules are comparable to those of the board and whether the specified out-of-state agency meets those rules.
	b. 	If the appropriate state education agency’s rules are not comparable, the department will contact the out-of-state agency to ascertain if its special education complies with the rules of the board.
	41.116(7) Trial placements. Prior to transfer from a special education program or service, an eligible individual may be provided a trial placement in the general education setting of not more than 45 school days. A trial placement shall be incorporated into this individual’s IEP.
281—41.117(256B,34CFR300) Nonacademic settings. In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in rule 281—41.107(256B,34CFR300), each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP team to be appropriate and necessary for the child to participate in nonacademic settings.
281—41.118(256B,34CFR300) Children in public or private institutions. Except as provided in rule 281—41.149(256B,34CFR300) regarding agency responsibility for general supervision of some individuals in adult prisons, the department must ensure that rule 281—41.114(256B,34CFR300) is effectively implemented, including, if necessary, making arrangements with public and private institutions such as a memorandum of agreement or special implementation procedures.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.119(256B,34CFR300) Technical assistance and training activities. The state shall carry out activities to ensure that teachers and administrators in all public agencies are fully informed about their responsibilities for implementing rule 281—41.114(256B,34CFR300) and are provided with technical assistance and training necessary to assist them in this effort. If a public agency is having difficulty in locating an appropriate placement for an eligible individual, the public agency may contact the department for potential assistance.
281—41.120(256B,34CFR300) Monitoring activities. The state shall carry out activities to ensure that rule 281—41.114(256B,34CFR300) is implemented by each public agency. If there is evidence that a public agency makes placements that are inconsistent with rule 281—41.114(256B,34CFR300), the department must review the public agency’s justification for its actions and assist in planning and implementing any necessary corrective action. Failure of the public agency to implement any necessary corrective action may result in adverse determinations under rule 281—41.603(256B,34CFR300) or any other available enforcement action.
281—41.121(256B,34CFR300) Procedural safeguards. Each public agency in the state shall meet the requirements of rules 281—41.500(256B,34CFR300) to 281—41.536(256B,34CFR300), and children with disabilities and their parents must be afforded the procedural safeguards identified in those rules.
281—41.122(256B,34CFR300) Evaluation. Children with disabilities must be evaluated in accordance with rules 281—41.300(256B,34CFR300) to 281—41.313(256B,34CFR300), and each AEA shall develop and use procedures to implement those rules.
281—41.123(256B,34CFR300) Confidentiality of personally identifiable information. All public agencies in the state shall comply with rules 281—41.610(256B,34CFR300) to 281—41.626(256B,34CFR300) related to protecting the confidentiality of any personally identifiable information collected, used, or maintained under Part B of the Act.
281—41.124(256B,34CFR300) Transition of children from the Part C program to preschool programs. Each public agency shall comply with the state’s policies concerning the transition of infants and toddlers from programs under Part C to programs under Part B of the Act and shall ensure the following regarding such transition:
	41.124(1) Smooth transition. Children participating in early intervention programs assisted under Part C of the Act, and who will participate in preschool programs assisted under Part B of the Act, experience a smooth and effective transition to those preschool programs in a manner consistent with Section 637(a)(9) of the Act;
	41.124(2) IEP developed. By the third birthday of a child described in subrule 41.124(1), an IEP has been developed and is being implemented for the child consistent with subrule 41.101(2); and
	41.124(3) Participating agencies. Each affected LEA will participate in transition planning conferences arranged by the designated lead agency under Section 635(a)(10) of the Act.
281—41.125 to 41.128  Reserved.
281—41.129(256B,34CFR300) Responsibility regarding children in private schools. Each public agency shall meet the private school requirements in rules 281—41.130(256,256B,34CFR300) to 281—41.148(256B,34CFR300).
281—41.130(256,256B,34CFR300) Definition of parentally placed private school children with disabilities. “Parentally placed private school children with disabilities” means children with disabilities enrolled by their parents in accredited nonpublic, including religious, schools or facilities that meet the definition of elementary school in rule 281—41.13(256B,34CFR300) or secondary school in rule 281—41.36(256B,34CFR300), other than children with disabilities covered under rules 281—41.145(256B,34CFR300) to 281—41.147(256B,34CFR300).
281—41.131(256,256B,34CFR300) Child find for parentally placed private school children with disabilities.
	41.131(1) General. Each AEA must locate, identify, and evaluate all children with disabilities who are enrolled by their parents in accredited nonpublic, including religious, elementary schools and secondary schools located in the school district served by the AEA, in accordance with subrules 41.131(2) to 41.131(5), and rules 281—41.111(256B,34CFR300) and 281—41.201(256B,34CFR300).
	41.131(2) Child find design. The child find process must be designed to ensure:
	a. 	The equitable participation of parentally placed private school children; and
	b. 	An accurate count of those children.
	41.131(3) Activities. In carrying out the requirements of this rule, the AEA or, if applicable, the SEA must undertake activities similar to the activities undertaken for the agency’s public school children.
	41.131(4) Cost. The cost of carrying out the child find requirements in this rule, including individual evaluations, may not be considered in determining if an AEA has met its obligation under rule 281—41.133(256,256B,34CFR300).
	41.131(5) Completion period. The child find process must be completed in a time period comparable to that for students attending public schools in the AEA consistent with rule 281—41.301(256B,34CFR300).
	41.131(6) Out-of-state children. Each AEA in which accredited nonpublic, including religious, elementary schools and secondary schools are located must, in carrying out the child find requirements in this rule, include parentally placed private school children who reside in a state other than the state in which the accredited nonpublic schools that they attend are located.
281—41.132(256,256B,34CFR300) Provision of services for parentally placed private school children with disabilities: basic requirement.
	41.132(1) General. To the extent consistent with the number and location of children with disabilities who are enrolled by their parents in accredited nonpublic, including religious, elementary schools and secondary schools located in the area served by the AEA, provision is made for the participation of those children in the program assisted or carried out under Part B of the Act by providing them with special education and related services, including direct services determined in accordance with rule 281—41.137(256,256B,34CFR300), unless the Secretary has arranged for services to those children under the bypass provisions in 34 CFR Sections 300.190 to 300.198.
	41.132(2) IEP for parentally placed private school children with disabilities. In accordance with subrule 41.132(1) and rules 281—41.137(256,256B,34CFR300) to 281—41.139(256,256B,34CFR300), as well as Iowa Code section 256.12, an IEP must be developed and implemented for each private school child with a disability who has been designated by the AEA in which the private school is located to receive special education and related services under this chapter.
	41.132(3) Record keeping. Each AEA must maintain in its records, and provide to the state, the following information related to parentally placed private school children covered under rules 281—41.130(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300):
	a. 	The number of children evaluated;
	b. 	The number of children determined to be children with disabilities; and
	c. 	The number of children served.
281—41.133(256,256B,34CFR300) Expenditures.
	41.133(1) Formula. To meet the requirement of subrule 41.132(1), each AEA must spend the following on providing special education and related services, including direct services, to parentally placed private school children with disabilities:
	a. 	For children aged 3 to 21, an amount that is the same proportion of the AEA’s total subgrant under Section 611(f) of the Act as the number of private school children with disabilities aged 3 to 21 who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the AEA, is to the total number of children with disabilities in its jurisdiction aged 3 to 21.
	b. 	Additional calculation for children aged 3 through 5.
	(1)	For children aged 3 through 5, an amount that is the same proportion of the AEA’s total subgrant under Section 619(g) of the Act as the number of parentally placed private school children with disabilities aged 3 through 5 who are enrolled by their parents in a private, including religious, elementary school located in the school district served by the AEA, is to the total number of children with disabilities in its jurisdiction aged 3 through 5.
	(2)	As described in 41.133(1)“b”(1), children aged 3 through 5 are considered to be parentally placed private school children with disabilities enrolled by their parents in private, including religious, elementary schools, if and only if they are enrolled in a private school that meets the definition of elementary school in rule 281—41.13(256B,34CFR300).
	c. 	If an AEA has not expended for equitable services all of the funds described in 41.133(1)“a” and “b” by the end of the fiscal year for which Congress appropriated the funds, the AEA must obligate the remaining funds for special education and related services, including direct services, to parentally placed private school children with disabilities during a carry-over period of one additional year.
	41.133(2) Calculating proportionate amount. The state shall calculate each AEA’s proportionate share from data provided by each AEA after each AEA has completed the consultation described in rule 281—41.134(256,256B,34CFR300) and the child count described in rule 281—41.131(256,256B,34CFR300) and subrule 41.133(3).
	41.133(3) Annual count of the number of parentally placed private school children with disabilities.
	a. 	Each AEA must:
	(1)	After timely and meaningful consultation with representatives of parentally placed private school children with disabilities, consistent with rule 281—41.134(256,256B,34CFR300), determine the number of parentally placed private school children with disabilities attending private schools located in the AEA; and
	(2)	Ensure that the count is conducted on any date between October 1 and December 1, inclusive, of each year.
	b. 	The count must be used to determine the amount that the AEA must spend on providing special education and related services to parentally placed private school children with disabilities in the next subsequent fiscal year.
	41.133(4) Supplement, not supplant. State and local funds may supplement, and in no case supplant, the proportionate amount of federal funds required to be expended for parentally placed private school children with disabilities under this chapter.
281—41.134(256,256B,34CFR300) Consultation. To ensure timely and meaningful consultation, an AEA or, if appropriate, an SEA must consult with private school representatives and representatives of parents of parentally placed private school children with disabilities during the design and development of special education and related services for the children regarding the following:
	41.134(1) Child find. The child find process shall determine:
	a. 	How parentally placed private school children suspected of having a disability can participate equitably; and
	b. 	How parents, teachers, and private school officials will be informed of the process.
	41.134(2) Proportionate share of funds. An explanation that the proportionate share shall be calculated by the state based on data submitted by the AEA, consistent with rule 281—41.133(256,256B,34CFR300).
	41.134(3) Consultation process. The consultation process among the AEA, private school officials, and representatives of parents of parentally placed private school children with disabilities, including how the process will operate throughout the school year to ensure that parentally placed children with disabilities identified through the child find process can meaningfully participate in special education and related services.
	41.134(4) Provision of special education and related services. How, where, and by whom special education and related services funded by Part B of the Act under rules 281—41.130(256,256B,34CFR300) to 281—41.147(256B,34CFR300) will be provided for parentally placed private school children with disabilities, including a discussion of the following:
	a. 	The types of services, including direct services and alternate service delivery mechanisms;
	b. 	How special education and related services will be apportioned if funds are insufficient to serve all parentally placed private school children;
	c. 	How and when decisions regarding 41.134(4)“a” and “b” will be made;
	d. 	That the consultation process concerns only funds under Part B of the Act, and does not concern special education and related services provided under Iowa Code section 256.12. The consultation process may, but is not required to, include discussions of special education and related services provided under Iowa Code section 256.12.
	41.134(5) Written explanation by AEA regarding services. How, if the AEA disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, the AEA will provide to the private school officials a written explanation of the reasons why the AEA chose not to provide services directly or through a contract.
281—41.135(256,256B,34CFR300) Written affirmation. When timely and meaningful consultation, as required by rule 281—41.134(256,256B,34CFR300), has occurred, the AEA must obtain a written affirmation signed by the representatives of participating private schools. If the representatives do not provide the affirmation within a reasonable period of time, the AEA must forward the documentation of the consultation process to the department.
281—41.136(256,256B,34CFR300) Compliance.
	41.136(1) General. A private school official has the right to submit a complaint to the department that the AEA:
	a. 	Did not engage in consultation that was meaningful and timely; or
	b. 	Did not give due consideration to the views of the private school official.
	41.136(2) Procedure.
	a. 	If the private school official wishes to submit a complaint, the official must provide to the department the basis of the noncompliance by the AEA with the applicable private school provisions in this chapter; and
	b. 	The AEA must forward the appropriate documentation to the department.
	c. 	If the private school official is dissatisfied with the decision of the department, the official may submit a complaint to the Secretary by providing the information on noncompliance described in 41.136(2)“a.” The department must forward the appropriate documentation to the Secretary.
281—41.137(256,256B,34CFR300) Equitable services determined.
	41.137(1) Nature and scope of individual right to special education and related services. Each parentally placed private school child with a disability has a right to receive any special education or related services permitted by Iowa Code section 256.12. Funding for and accounting for such services shall be determined by the provisions of Part B of the Act, this chapter, and Iowa Code section 256.12.
	41.137(2) Decisions. Decisions about the services that will be provided to parentally placed private school children with disabilities funded by Part B of the Act under rules 281—41.130(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300) must be made in accordance with subrules 41.134(4) and 41.137(3). The AEA must make the final decisions with respect to the services to be provided to eligible parentally placed private school children with disabilities and funded by Part B of the Act.
	41.137(3) IEP for parentally placed private school children with disabilities. The AEA or LEA must offer to develop an IEP for each child with a disability who is enrolled in a religious or other private school by the child’s parents and develop an IEP if one is requested, pursuant to this chapter. An IEP is offered and prepared pursuant to Iowa Code section 256.12. There is no need to prepare a services plan (see rule 281—41.37(34CFR300)) for such a student. A parent of a child with a disability who is voluntarily enrolled in a private school may not reject an IEP and demand a services plan instead. At any IEP team meeting for a parentally placed private school student with a disability, the AEA or LEA must ensure that a representative of the private school attends each meeting. If the representative cannot attend, the AEA or LEA shall use other methods to ensure participation by the private school, including individual or conference telephone calls.
281—41.138(256,256B,34CFR300) Equitable services provided.
	41.138(1) General. The services provided to parentally placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally placed private school children with disabilities do not have to meet the special education teacher requirements of rule 281—41.156(256B,34CFR300). Parentally placed private school children with disabilities receive the special education and related services required by Iowa Code section 256.12, although the source of the funding for such education and services may be different than funding for education and services for children with disabilities in public schools.
	41.138(2) Services provided in accordance with an IEP. Each parentally placed private school child with a disability who will receive special education and related services pursuant to the Act and Iowa Code section 256.12 must have an IEP developed in accordance with this chapter.
	41.138(3) Provision of equitable services. The provision of services pursuant to this rule and rules 281—41.139(256,256B,34CFR300) to 281—41.143(256,256B,34CFR300) must be provided by employees of a public agency or through contract by the public agency with an individual, association, agency, organization, or other entity.
	41.138(4) Secular, neutral and nonideological. Special education and related services, including materials and equipment, provided to parentally placed private school children with disabilities, including children attending religious schools, must be secular, neutral, and nonideological.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.139(256,256B,34CFR300) Location of services and transportation.
	41.139(1) Services on private school premises. Services to parentally placed private school children with disabilities may be provided on the premises of private, including religious, schools to the extent consistent with Iowa Code section 256.12.
	41.139(2) Transportation.
	a. 	General.
	(1)	If necessary for the child to benefit from or participate in the services provided under this chapter, a parentally placed private school child with a disability must be provided transportation from the child’s school or the child’s home to a site other than the private school and from the service site to the private school or to the child’s home, depending on the timing of the services.
	(2)	AEAs or LEAs are not required to provide transportation from the child’s home to the private school.
	b. 	Cost of transportation. The cost of the transportation described in 41.139(2)“a”(1) may be included in calculating whether the AEA has met the requirement of rule 281—41.133(256,256B,34CFR300).
281—41.140(256,256B,34CFR300) Due process complaints and state complaints.
	41.140(1) When due process complaints available. Pursuant to Iowa Code section 256.12, parents of children with disabilities who are voluntarily placed in accredited nonpublic schools may file a due process complaint as provided in rules 281—41.504(256B,34CFR300) to 281—41.519(256B,34CFR300), except as provided in subrule 41.140(2).
	41.140(2) When due process complaints unavailable. The procedures in rules 281—41.504(256B,34CFR300) to 281—41.519(256B,34CFR300) may not be used to challenge the particular amount of services funded by Part B that a parentally placed private school child with disabilities receives, unless the allegation is made that the child was denied FAPE under Iowa Code section 256.12, but a parent of a child with a disability may file a due process complaint alleging the AEA failed to comply with the child find requirements of rule 281—41.131(256,256B,34CFR300). A private school official may not file a due process complaint under this chapter.
	41.140(3) State complaints. Any complaint that an SEA or AEA has failed to meet the requirements in rules 281—41.132(256,256B,34CFR300) to 281—41.135(256,256B,34CFR300) and 281—41.137(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300) must be filed in accordance with the procedures described in rules 281—41.151(256B,34CFR300) to 281—41.153(256B,34CFR300). A complaint filed by a private school official under subrule 41.136(1) must be filed with the SEA in accordance with the procedures in subrule 41.136(2).
281—41.141(256,256B,34CFR300) Requirement that funds not benefit a private school.
	41.141(1) Funds may not benefit private school. An AEA may not use funds provided under Section 611 or 619 of the Act to finance the existing level of instruction in a private school or to otherwise benefit the private school.
	41.141(2) Funds only for special education. The AEA must use funds provided under Part B of the Act to meet the special education and related services needs of parentally placed private school children with disabilities, but not for meeting either of the following needs:
	a. 	The needs of a private school; or
	b. 	The general needs of the students enrolled in the private school.
281—41.142(256,256B,34CFR300) Use of personnel.
	41.142(1) Use of public school personnel. An AEA may use funds available under Sections 611 and 619 of the Act to make public school personnel available in other than public facilities based on the following two criteria:
	a. 	If and to the extent necessary to provide services under rules 281—41.130(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300) for parentally placed private school children with disabilities; and
	b. 	If those services are not normally provided by the private school.
	41.142(2) Use of private school personnel. An AEA may use funds available under Sections 611 and 619 of the Act to pay for the services of an employee of a private school to provide services under rules 281—41.130(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300) if the following two conditions are met:
	a. 	The employee performs the services outside of the employee’s regular hours of duty; and
	b. 	The employee performs the services under public supervision and control.
281—41.143(256,256B,34CFR300) Separate classes prohibited. An AEA may not use funds available under Section 611 or 619 of the Act for classes that are organized separately on the basis of school enrollment or religion of the children if the classes are at the same site; and the classes include both children enrolled in public schools and children enrolled in private schools.
281—41.144(256,256B,34CFR300) Property, equipment, and supplies.
	41.144(1) General. A public agency must control and administer the funds used to provide special education and related services under rules 281—41.137(256,256B,34CFR300) to 281—41.139(256,256B,34CFR300) and hold title to and administer materials, equipment, and property purchased with those funds for the uses and purposes provided in the Act.
	41.144(2) Equipment and supplies on private school premises only while needed. The public agency may place equipment and supplies in a private school for the period of time needed for the Part B program.
	41.144(3) Public agency to supervise placement and use of equipment and supplies. The public agency must ensure that the equipment and supplies placed in a private school are used only for Part B purposes and can be removed from the private school without remodeling the private school facility.
	41.144(4) Duty to remove equipment and supplies. The public agency must remove equipment and supplies from a private school if the equipment and supplies are no longer needed for Part B purposes or removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes.
	41.144(5) No Part B funds for repair or construction. No funds under Part B of the Act may be used for repairs, minor remodeling, or construction of private school facilities.
281—41.145(256B,34CFR300) Applicability of rules 281—41.146(256B,34CFR300) to 281—41.147(256B,34CFR300). Rules 281—41.146(256B,34CFR300) and 281— 41.147(256B,34CFR300) apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.
281—41.146(256B,34CFR300) Responsibility of department. The department must ensure the following for each child with a disability who is placed in or referred to a private school or facility by a public agency.
	41.146(1) FAPE. The child is provided special education and related services in conformance with an IEP that meets the requirements of rules 281—41.320(256B,34CFR300) to 281—41.325(256B,34CFR300) and at no cost to the parents.
	41.146(2) Meet state standards. The child is provided an education that meets the standards that apply to education provided by the SEA and LEAs, including the requirements of this chapter except for subrule 41.156(3).
	41.146(3) All rights. The child has all of the rights of a child with a disability who is served by a public agency.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.147(256B,34CFR300) Implementation by department. In implementing rule 281— 41.146(256B,34CFR300), the department must monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires; disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a child with a disability; and provide an opportunity for those private schools and facilities to participate in the development and revision of state standards that apply to them.
281—41.148(256B,34CFR300) Placement of children by parents when FAPE is at issue.
	41.148(1) General. An LEA or AEA is not required to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with rules 281—41.131(256,256B,34CFR300) to 281—41.144(256,256B,34CFR300) and Iowa Code section 256.12.
	41.148(2) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in rules 281—41.504(256B,34CFR300) to 281—41.520(256B,34CFR300).
	41.148(3) Reimbursement for private school placement. If the parents of a child with a disability who previously received special education and related services under the authority of a public agency enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or an administrative law judge may require the agency to reimburse the parents for the cost of that enrollment if the court or administrative law judge finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by an administrative law judge or a court even if it does not meet the state standards that apply to education provided by the SEA and LEAs.
	41.148(4) Limitation on reimbursement. The cost of reimbursement described in subrule 41.148(3) may be reduced or denied in any of the following cases.
	a. 	At the most recent IEP team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense;
	b. 	At least ten business days, including any holidays that occur on a business day, prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in 41.148(4)“a”;
	c. 	If, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in 41.503(1)“a,” of its intent to evaluate the child, including a statement of the purpose of the evaluation that was appropriate and reasonable, but the parents did not make the child available for the evaluation; or
	d. 	Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
	41.148(5) Exceptions. Notwithstanding the notice requirement in 41.148(4)“a” and “b,” the cost of reimbursement:
	a. 	Must not be reduced or denied for failure to provide the notice if:
	(1)	The school prevented the parents from providing the notice;
	(2)	The parents had not received notice, pursuant to rule 281—41.504(256B,34CFR300), of the notice requirement in 41.148(4)“a” and “b”; or
	(3)	Compliance with 41.148(4)“a” and “b” would likely result in physical harm to the child; and
	b. 	May, in the discretion of the court or an administrative law judge, not be reduced or denied for failure to provide this notice if:
	(1)	The parents are not literate or cannot write in English; or
	(2)	Compliance with 41.148(4)“a” and “b” would likely result in serious emotional harm to the child.
281—41.149(256B,34CFR300) SEA responsibility for general supervision. The state shall exercise general supervision over the implementation of Part B of the Act and this chapter. Part B of the Act does not limit the responsibility of agencies other than educational agencies for providing or paying for some or all of the costs of FAPE to eligible individuals.
281—41.150  Reserved.
281—41.151(256B,34CFR300) Adoption of state complaint procedures.
	41.151(1) General. The state maintains written procedures for the following:
	a. 	Resolving any complaint, including a complaint filed by an organization or individual from another state, that meets the requirements of rule 281—41.153(256B,34CFR300) by providing for the filing of a complaint with the department.
	b. 	Widely disseminating to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the state procedures under rules 281—41.151(256B,34CFR300) to 281—41.153(256B,34CFR300).
	41.151(2) Remedies for denial of appropriate services. In resolving a complaint in which the state has found a failure to provide appropriate services, the state, pursuant to its general supervisory authority under Part B of the Act, shall address the following:
	a. 	The failure to provide appropriate services, including corrective action appropriate to address the needs of the child, such as compensatory services or monetary reimbursement; and
	b. 	Appropriate future provision of services for all children with disabilities.
281—41.152(256B,34CFR300) Minimum state complaint procedures.
	41.152(1) Time limit; minimum procedures. The state shall include in its complaint procedures a time limit of 60 days after a complaint is filed under rule 281—41.153(256B,34CFR300) to do the following:
	a. 	Carry out an independent on-site investigation, if the state determines that an investigation is necessary;
	b. 	Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;
	c. 	Provide the public agency with the opportunity to respond to the complaint, including, at a minimum:
	(1)	At the discretion of the public agency, a proposal to resolve the complaint; and
	(2)	An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with rules 281—41.506(256B,34CFR300) and 281—41.1002(256B,34CFR300);
	d. 	Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this chapter; and
	e. 	Issue a written decision to the complainant that addresses each allegation in the complaint and contains:
	(1)	Findings of fact and conclusions; and
	(2)	The reasons for the state’s final decision.
	41.152(2) Time extension; final decision; implementation. The state’s procedures described in subrule 41.152(1) shall do the following:
	a. 	Permit an extension of the time limit under subrule 41.152(1) only if:
	(1)	Exceptional circumstances exist with respect to a particular complaint; or
	(2)	The parent or individual or organization and the public agency involved agree to extend the time to engage in mediation pursuant to 41.152(1)“c”(2), or to engage in other alternative means of dispute resolution, if available in the state; and
	b. 	Include procedures for effective implementation of the state’s final decision, if needed, including:
	(1)	Technical assistance activities;
	(2)	Negotiations; and
	(3)	Corrective actions to achieve compliance.
	41.152(3) Complaints filed under this rule and due process hearings. If a written complaint is received that is also the subject of a due process hearing under rule 281—41.507(256B,34CFR300) or 281—41.530(256B,34CFR300) to 281—41.532(256B,34CFR300), or that contains multiple issues of which one or more are part of that hearing, the state must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures described in subrules 41.152(1) and 41.152(2). If an issue raised in a complaint filed under this rule has previously been decided in a due process hearing involving the same parties, the due process hearing decision is binding on that issue and the state must inform the complainant to that effect. A complaint alleging a public agency’s failure to implement a due process hearing decision must be resolved by the state.
281—41.153(256B,34CFR300) Filing a complaint.
	41.153(1) Complainant. An organization or individual may file a signed written complaint under the procedures described in rules 281—41.151(256B,34CFR300) and 281—41.152(256B,34CFR300).
	41.153(2) Contents of complaint. The complaint must include the following:
	a. 	A statement that a public agency has violated a requirement of Part B of the Act or of this chapter;
	b. 	The facts on which the statement is based;
	c. 	The signature and contact information for the complainant; and
	d. 	If alleging violations with respect to a specific child:
	(1)	The name and address of the residence of the child;
	(2)	The name of the school the child is attending;
	(3)	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;
	(4)	A description of the nature of the problem of the child, including facts relating to the problem; and
	(5)	A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
	41.153(3) Time limit. The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with rule 281—41.151(256B,34CFR300).
	41.153(4) Complainant must provide copy of complaint to AEA and LEA. The party filing the complaint must forward a copy of the complaint to the AEA and LEA or public agency serving the child at the same time the party files the complaint with the state.
	41.153(5) Failure to comply with due process hearing decision, mediation agreement, resolution meeting agreement. A complainant may allege a public agency has failed to comply with a due process hearing decision, or a mediation agreement, or a resolution meeting agreement. If the complaint is substantiated, the state will grant appropriate relief.
281—41.154(256B,34CFR300) Methods of ensuring services.
	41.154(1) Interagency agreements. An interagency agreement or other mechanism for interagency coordination shall be developed between each noneducational public agency described in subrule 41.154(2) and the SEA, in order to ensure that all services described in 41.154(2)“a” that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under paragraph “c” of this subrule. The agreement or mechanism must include the following:
	a. 	An identification of, or a method for defining, the financial responsibility of each agency for providing services described in 41.154(2)“a” to ensure FAPE to children with disabilities. The financial responsibility of each noneducational public agency described in subrule 41.154(2), including the state Medicaid agency and other public insurers of children with disabilities, must precede the financial responsibility of the LEA (or the state agency responsible for developing the child’s IEP).
	b. 	The conditions, terms, and procedures under which an LEA must be reimbursed by other agencies.
	c. 	Procedures for resolving interagency disputes, including procedures under which LEAs may initiate proceedings, under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.
	d. 	Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in 41.154(2)“a.”
	41.154(2) Obligation of noneducational public agencies.
	a. 	General rule.
	(1)	If any public agency other than an educational agency is otherwise obligated under federal or state law, or assigned responsibility under state policy or pursuant to subrule 41.154(1), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in rule 281—41.5(256B,34CFR300) relating to assistive technology devices, rule 281—41.6(256B,34CFR300) relating to assistive technology services, rule 281—41.34(256B,34CFR300) relating to related services, rule 281—41.42(256B,34CFR300) relating to supplementary aids and services, and rule 281—41.43(256B,34CFR300) relating to transition services) that are necessary for ensuring FAPE to children with disabilities within the state, the public agency must fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to subrule 41.154(1) or an agreement pursuant to subrule 41.154(3).
	(2)	A noneducational public agency described in 41.154(2)“a”(1) may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.
	b. 	Failure to comply with general rule. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in 41.154(2)“a,” the LEA (or state agency responsible for developing the child’s IEP) must provide or pay for these services to the child in a timely manner. The LEA or state agency is authorized to claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services, and that agency must reimburse the LEA or state agency in accordance with the terms of the interagency agreement or other mechanism described in subrule 41.154(1).
	41.154(3) Special rule. The requirements of subrule 41.154(1) may be met through the following:
	a. 	State statute or regulation;
	b. 	Signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or
	c. 	Other appropriate written methods as determined by the chief executive officer of the state or designee of that officer and approved by the Secretary.
	41.154(4) Children with disabilities who are covered by public benefits or insurance.
	a. 	General. A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under this chapter, as permitted under the public benefits or insurance program, except as provided in 41.154(4)“b” through “d.”
	b. 	Exceptions to ability to use public benefits or insurance. With regard to services required to provide FAPE to an eligible child under this chapter, the public agency:
	(1)	May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under Part B of the Act;
	(2)	May not require parents to incur an out-of-pocket expense such as the payment of a deductible or copay amount incurred in filing a claim for services provided pursuant to this chapter but, pursuant to 41.154(6)“b,” may pay the cost that the parents otherwise would be required to pay; and
	(3)	May not use a child’s benefits under a public benefits or insurance program if that use would do any of the following:
	1.	Decrease available lifetime coverage or any other insured benefit;
	2.	Result in the family’s paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;
	3.	Increase premiums or lead to the discontinuation of benefits or insurance; or
	4.	Risk loss of eligibility for home- and community-based waivers, based on aggregate health-related expenditures.
	c. 	Consent requirements. Prior to accessing a child’s or parent’s public benefits or insurance for the first time, and after providing notification to the child’s parents consistent with 41.154(4)“d,” the public agency must obtain written parental consent that:
	(1)	Meets the requirements of 34 CFR Section 99.30 and rule 281—41.622(256B,34CFR300), which consent must specify the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular child), the purpose of the disclosure (e.g., billing for services under this chapter), and the agency to which the disclosure may be made (e.g., the state’s public benefits or insurance program (e.g., Medicaid)); and
	(2)	Specifies that the parent understands and agrees that the public agency may access the parent’s or child’s public benefits or insurance to pay for services under this chapter.
	d. 	Notification requirements. Prior to accessing a child’s or parent’s public benefits or insurance for the first time, and annually thereafter, the public agency must provide written notification, consistent with 41.503(3), to the child’s parents, that includes:
	(1)	A statement of the parental consent provisions in paragraph 41.154(4)“c”;
	(2)	A statement of the “no cost” provisions in 41.154(4)“b”;
	(3)	A statement that the parents have the right under 34 CFR Part 99 and this chapter to withdraw their consent to disclosure of their child’s personally identifiable information to the agency responsible for the administration of the state’s public benefits or insurance program (e.g., Medicaid) at any time; and
	(4)	A statement that the withdrawal of consent or refusal to provide consent under 34 CFR Part 99 and this chapter to disclose personally identifiable information to the agency responsible for the administration of the state’s public benefits or insurance program (e.g., Medicaid) does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.
	41.154(5) Children with disabilities who are covered by private insurance.
	a. 	General. With regard to services required to provide FAPE to an eligible child under this chapter, a public agency may access the parents’ private insurance proceeds only if the parents provide consent consistent with rule 281—41.9(256B,34CFR300).
	b. 	Obtaining access to private insurance proceeds. Each time the public agency proposes to access the parents’ private insurance proceeds, the agency must:
	(1)	Obtain parental consent in accordance with 41.154(5)“a”; and
	(2)	Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.
	41.154(6) Use of Part B funds.
	a. 	Agency unable to obtain consent. If a public agency is unable to obtain parental consent to use the parents’ private insurance, or public benefits or insurance when the parents would incur a cost for a specified service required under this chapter, to ensure FAPE, the public agency may use its Part B funds to pay for the service.
	b. 	Use of Part B funds to avoid cost to parents. To avoid financial cost to parents who otherwise would consent to use private insurance, or public benefits or insurance if the parents would incur a cost, the public agency may use its Part B funds to pay the cost that the parents otherwise would have to pay to use the parents’ benefits or insurance (e.g., the deductible or copay amounts).
	41.154(7) Proceeds from public benefits or insurance or private insurance. Proceeds from public benefits or insurance or private insurance will not be treated as program income for purposes of 34 CFR 80.25. If a public agency spends reimbursements from federal funds (e.g., Medicaid) for services under this chapter, those funds will not be considered state or local funds for purposes of the maintenance of effort provisions in rules 281—41.163(256B,34CFR300) and 281—41.203(256B,34CFR300).
	41.154(8) Rule of construction. Nothing in this chapter should be construed to alter the requirements imposed on a state Medicaid agency, or any other agency administering a public benefits or insurance program by federal statute, regulations or policy under Title XIX or Title XXI of the Social Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa through 1397jj, or any other public benefits or insurance program.
[ARC 0814C, IAB 6/26/13, effective 7/31/13]
281—41.155(256B,34CFR300) Hearings relating to AEA or LEA eligibility. The department shall not make any final determination that an AEA or LEA is not eligible for assistance under Part B of the Act without first giving the AEA or LEA reasonable notice and an opportunity for a hearing under 34 CFR 76.401(d).
281—41.156(256B,34CFR300) Personnel qualifications.
	41.156(1) General. The SEA must establish and maintain qualifications to ensure that personnel necessary to carry out the purposes of Part B of the Act and of this chapter are appropriately and adequately prepared, trained, and licensed, including ensuring that those personnel have the content knowledge and skills to serve children with disabilities.
	41.156(2) Related services personnel and paraprofessionals. The qualifications under subrule 41.156(1) must include qualifications for related services personnel and paraprofessionals that:
	a. 	Are consistent with any state-approved or state-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; and
	b. 	Ensure that related services personnel who deliver services in their discipline or profession:
	(1)	Meet the requirements of 41.156(2)“a”; and
	(2)	Have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
	(3)	Allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with state law, regulation, or written policy, in meeting the requirements of this chapter to be used to assist in the provision of special education and related services under this chapter to children with disabilities.
	41.156(3) Qualifications for special education teachers. The qualifications described in subrule 41.156(1) must ensure that each person employed as a public school special education teacher in the state who teaches in an elementary school, middle school, or secondary school meets the following standards:
	a. 	The teacher has obtained full state certification as a special education teacher, including certification obtained through alternative routes to certification, or has passed the state special education teacher licensing examination and holds a license to teach in the state as a special education teacher, except that a teacher teaching in a public charter school must meet the certification or licensing requirements, if any, set forth in the state’s public charter school law;
	b. 	The teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
	c. 	The teacher holds at least a bachelor’s degree.
	41.156(4) Policy. In implementing this rule, the state must adopt a policy that includes a requirement that AEAs and LEAs in the state take measurable steps to recruit, hire, train, and retain personnel described in this rule to provide special education and related services under Part B of the Act and this chapter to children with disabilities.
	41.156(5) Rule of construction. Notwithstanding any other individual right of action that a parent or student may maintain under this chapter, nothing in this chapter shall be construed to create a right of action on behalf of an individual student or a class of students for the failure of a particular SEA, AEA, or LEA employee to meet the requirements of this rule, or to prevent a parent from filing a complaint about staff qualifications with the SEA as provided for under this chapter.
	41.156(6) Positive efforts to employ and advance qualified individuals with disabilities. Each recipient of assistance under Part B of the Act must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under Part B of the Act.
	41.156(7) Additional rules of construction.
	a. 	A special educator teaching in one or more core academic subjects must be appropriately licensed in each core academic subject or must collaborate with an appropriately licensed teacher.
	b. 	A teacher will be considered to meet the standard in subrule 41.156(3) if that teacher is participating in an alternative route to special education certification program as follows:
	(1)	The teacher meets the following requirements:
	1.	Before and while teaching, receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction;
	2.	Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or in a teacher mentoring program;
	3.	Assumes functions as a teacher only for a specified period of time not to exceed three years; and
	4.	Demonstrates satisfactory progress toward full certification as prescribed by the state; and
	(2)	The state ensures, through its certification and licensure process, that the provisions in subparagraph 41.156(7)“b”(1) are met.
[ARC 8387B, IAB 12/16/09, effective 1/20/10; ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.157 to 41.159  Reserved.
281—41.160(256B,34CFR300) Participation in assessments.
	41.160(1) General. The state must ensure that all children with disabilities are included in all general state and districtwide assessment programs, including assessments described under Section 1111 of the ESEA, 20 U.S.C. Section 6311, with appropriate accommodations and alternate assessments, if necessary, as indicated in their respective IEPs.
	41.160(2) Accommodation guidelines.
	a. 	The state (or, in the case of a districtwide assessment, an LEA) must develop guidelines for the provision of appropriate accommodations.
	b. 	The state’s (or, in the case of a districtwide assessment, the LEA’s) guidelines must:
	(1)	Identify only those accommodations for each assessment that do not invalidate the score; and
	(2)	Instruct IEP teams to select, for each assessment, only those accommodations that do not invalidate the score.
	41.160(3) Alternate assessments.
	a. 	The state (or, in the case of a districtwide assessment, an LEA) must develop and implement alternate assessments and guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in regular assessments, even with accommodations, as indicated in their respective IEPs, as provided in subrule 41.160(1).
	b. 	For assessing the academic progress of students with disabilities under Title I of the ESEA, the alternate assessments and guidelines in paragraph 41.160(3)“a” must provide for alternate assessments that:
	(1)	Are aligned with the state’s challenging academic content standards and challenging student academic achievement standards;
	(2)	If the state has adopted alternate academic achievement standards permitted in 34 CFR 200.1(d), measure the achievement of children with the most significant cognitive disabilities against those standards; and
	(3)	Except as provided in subparagraph 41.160(3)“b”(2), a state’s alternate assessments, if any, must measure the achievement of children with disabilities against the state’s grade-level academic achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A).
	c. 	Consistent with 34 CFR 200.1(e), a state may not adopt modified academic achievement standards for any students with disabilities under Section 602(3) of the Act.
	41.160(4) Explanation to IEP teams. The state (or, in the case of a districtwide assessment, an LEA) must provide IEP teams with a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on alternate academic achievement standards, including any effects of state or local policies on the student’s education resulting from taking an alternate assessment based on alternate academic achievement standards (such as whether only satisfactory performance on a regular assessment would qualify a student for a regular high school diploma).
	41.160(5) Inform parents. The state (or, in the case of a districtwide assessment, an LEA) must ensure that parents of students selected to be assessed based on alternate academic achievement standards are informed that their child’s achievement will be measured based on alternate academic achievement standards.
	41.160(6) Reports. The state (or, in the case of a districtwide assessment, an LEA) must make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:
	a. 	The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations (that did not result in an invalid score) in order to participate in those assessments.
	b. 	The number of children with disabilities, if any, participating in alternate assessments based on grade-level academic achievement standards.
	c. 	The number of children with disabilities, if any, participating in alternate assessments based on modified academic achievement standards in school years prior to 2015-2016.
	d. 	The number of children with disabilities, if any, participating in alternate assessments based on alternate academic achievement standards.
	e. 	Compared with the achievement of all children, including children with disabilities, the performance results of children with disabilities on regular assessments, alternate assessments based on grade-level academic achievement standards, alternate assessments based on modified academic achievement standards (prior to 2015-2016), and alternate assessments based on alternate academic achievement standards if:
	(1)	The number of children participating in those assessments is sufficient to yield statistically reliable information; and
	(2)	Reporting that information will not reveal personally identifiable information about an individual student on those assessments.
	41.160(7) Universal design. The state (or, in the case of a districtwide assessment, an LEA) must, to the extent possible, use universal design principles in developing and administering any assessments under this rule.
[ARC 3766C, IAB 4/25/18, effective 5/30/18]
281—41.161  Reserved.
281—41.162(256B,34CFR300) Supplementation of state, local, and other federal funds.
	41.162(1) Expenditures. Funds paid to a state under this chapter must be expended in accordance with all the provisions of this chapter.
	41.162(2) Prohibition against commingling.
	a. 	Funds paid to a state under this chapter must not be commingled with state funds.
	b. 	The requirement in 41.162(2)“a” is satisfied by the use of a separate accounting system that includes an audit trail of the expenditure of funds paid to a state under this chapter. Separate bank accounts are not required. (See 34 CFR 76.702, fiscal control and fund accounting procedures.)
	41.162(3) State-level nonsupplanting.
	a. 	Except as provided in rule 281—41.203(256B,34CFR300), funds paid to a state under Part B of the Act must be used to supplement the level of federal, state, and local funds, including funds that are not under the direct control of the SEA or LEAs, expended for special education and related services provided to children with disabilities under Part B of the Act, and in no case to supplant those federal, state, and local funds.
	b. 	If the state provides clear and convincing evidence that all children with disabilities have available to them FAPE, the Secretary may waive, in whole or in part, the requirements of 41.162(3)“a” if the Secretary concurs with the evidence provided by the state under 34 CFR Section 300.164.
281—41.163(256B,34CFR300) Maintenance of state financial support. The state must not reduce the amount of state financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year.
281—41.164  Reserved.
281—41.165(256B,34CFR300) Public participation.
	41.165(1) General. Prior to the adoption of any policies and procedures needed to comply with Part B of the Act, including any amendments to those policies and procedures, the state must ensure that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities.
	41.165(2) State plan. Before submitting a state plan under this chapter, the state must comply with the public participation requirements in subrule 41.165(1) and those in 20 U.S.C. 1232d(b)(7).
281—41.166(256B,34CFR300) Rule of construction. In complying with rules 281— 41.162(256B,34CFR300) and 281—41.163(256B,34CFR300), the state may not use funds paid to it under this chapter to satisfy state-mandated funding obligations to LEAs, including funding based on student attendance or enrollment, or inflation.
281—41.167(256B,34CFR300) State advisory panel. An advisory panel is established and maintained for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the state.
281—41.168(256B,34CFR300) Advisory panel membership.
	41.168(1) General. The advisory panel must consist of members appointed by the director of education, be representative of the state population and be composed of individuals involved in or concerned with the education of children with disabilities, including:
	a. 	Parents of children with disabilities aged birth to 26;
	b. 	Individuals with disabilities;
	c. 	Teachers;
	d. 	Representatives of institutions of higher education that prepare special education and related services personnel;
	e. 	State and local education officials, including officials who carry out activities under Subtitle B of Title VII of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11431 et seq.;
	f. 	Administrators of programs for children with disabilities;
	g. 	Representatives of other state agencies involved in the financing or delivery of related services to children with disabilities;
	h. 	Representatives of private schools and public charter schools;
	i. 	At least one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities;
	j. 	A representative from the state child welfare agency responsible for foster care; and
	k. 	Representatives from the state juvenile and adult corrections agencies.
	41.168(2) Special rule. A majority of the members of the panel must be individuals with disabilities or parents of children with disabilities aged birth to 26.
281—41.169(256B,34CFR300) Advisory panel duties. The advisory panel must:
	1.	Advise the department of unmet needs within the state in the education of children with disabilities;
	2.	Comment publicly on any rules or regulations proposed by the state regarding the education of children with disabilities;
	3.	Advise the department in developing evaluations and reporting on data to the Secretary under Section 618 of the Act;
	4.	Advise the department in developing corrective action plans to address findings identified in federal monitoring reports under Part B of the Act;
	5.	Advise the department in developing and implementing policies relating to the coordination of services for children with disabilities; and
	6.	Advise the department on eligible individuals with disabilities in adult prisons.
281—41.170(256B,34CFR300) Suspension and expulsion rates.
	41.170(1) General. The department must examine data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities:
	a. 	Among LEAs in the state; or
	b. 	Compared to the rates for nondisabled children within an LEA.
	41.170(2) Review and revision of policies. If the discrepancies described in subrule 41.170(1) are occurring, the department must review and, if appropriate, revise (or require the affected state agency or LEA to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards to ensure that these policies, procedures, and practices comply with the Act.
281—41.171  Reserved.
281—41.172(256B,34CFR300) Access to instructional materials.
	41.172(1) General. The state:
	a. 	Adopts the National Instructional Materials Accessiblity Standard (NIMAS) published in the Federal Register on July 19, 2006, (71 Fed. Reg. 41084) for the purposes of providing instructional materials to blind persons or other persons with print disabilities in a timely manner; and
	b. 	Establishes the following definition of “timely manner” for purposes of this chapter: Providing instructional materials in accessible formats to children with disabilities in a “timely manner” means delivering those accessible instructional materials at the same time as other children receive instructional materials.
	41.172(2) Public agencies. All public agencies must comply with rule 281— 41.210(256B,34CFR300).
	41.172(3) Assistive technology. In carrying out this rule, the department, to the maximum extent possible, must work collaboratively with the state agency responsible for assistive technology programs.
281—41.173(256B,34CFR300) Overidentification and disproportionality. Each public agency shall implement policies and procedures developed by the department designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment.
281—41.174(256B,34CFR300) Prohibition on mandatory medication.
	41.174(1) General. No public agency personnel are permitted to require parents to obtain a prescription for substances identified under Schedule I, II, III, IV, or V in Section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition of attending school, receiving an evaluation or services under Part B or this chapter.
	41.174(2) Rule of construction. Nothing in subrule 41.174(1) shall be construed to create a federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student’s academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under rule 281—41.111(256B,34CFR300) related to child find.
281—41.175  Reserved.
281—41.176(256B) Special school provisions.
	41.176(1) Providers. Special schools for eligible individuals who require special education outside the general education environment may be maintained by individual LEAs, jointly by two or more LEAs, by the AEA, jointly by two or more AEAs, by the state directly, or by approved private providers.
	41.176(2) Department recognition. Department recognition of agencies providing special education and related services shall be of two types:
	a. 	Recognition of nonpublic agencies and state-operated programs providing special education and related services in compliance with these rules.
	b. 	Approval for nonpublic agencies to provide special education and related services and to receive special education funds for the special education and related services contracted for by an LEA or an AEA.
281—41.177(256B) Facilities.
	41.177(1) Equivalent to general education. Each agency providing special education and related services shall supply facilities which shall be at least equivalent in quality to general education classrooms in the system, located in buildings housing regularly enrolled individuals of comparable ages, and readily accessible to individuals with disabilities.
	41.177(2) Personnel space and assistance. Each agency providing special education shall ensure that special education personnel are provided adequate access to telephone service and clerical assistance and sufficient and appropriate work space regularly available for their use that is readily accessible to individuals with disabilities.
281—41.178(256B) Materials, equipment and assistive technology.
	41.178(1) Provision for materials, equipment, and assistive technology. Each LEA shall make provision for special education and related services, facility modifications, assistive technology, necessary equipment and materials, including both durable items and expendable supplies; provided that, where an AEA, pursuant to appropriate arrangements authorized by the Iowa Code, furnishes special education and related services, performance by the AEA shall be accepted in lieu of performance by the LEA.
	41.178(2) Acquire and maintain equipment. Each agency providing special education and related services shall have a comprehensive program in operation under which equipment for special education is acquired, inventoried, maintained, calibrated and replaced on a planned and regular basis.
281—41.179 to 41.185  Reserved.
281—41.186(256B,34CFR300) Assistance under other federal programs. Part B of the Act may not be construed to permit a state to reduce medical and other assistance available, or to alter eligibility, under Titles V and XIX of the Social Security Act with respect to the provision of FAPE to children with disabilities in the state.
281—41.187(256B) Research, innovation, and improvement.
	41.187(1) Evaluation and improvement. Each agency, in conjunction with other agencies, the department, or both, shall implement activities designed to evaluate and improve special education. These activities shall document the individual performance resulting from the provision of special education.
	41.187(2) Research. Each agency shall cooperate in research activities designed to evaluate and improve special education when such activities are sponsored by an LEA, an AEA or the department, or another agency, when approved by the department, to assess and ensure the effectiveness of efforts to educate all children with disabilities.
	41.187(3) Support and facilitation. State rules, regulations, and policies under Part B of the Act must support and facilitate AEA, LEA and school-level system improvement designed to enable children with disabilities to meet the challenging state student academic achievement standards.
281—41.188 to 41.199  Reserved.
DIVISION IV
LEA AND AEA ELIGIBILITY, IN GENERAL
281—41.200(256B,34CFR300) Condition of assistance. An AEA or an LEA is eligible for assistance under Part B of the Act for a fiscal year if the agency submits a plan that provides assurances to the state that the LEA meets each of the conditions in rules 281—41.201(256B,34CFR300) to 281—41.213(256B,34CFR300).
	41.200(1) Required descriptions, policies and procedures. Each AEA shall submit to the department the policies and procedures identified in subrules 41.407(1) and 41.407(2) and other descriptions that may be required by the department for approval. Any modifications to an AEA’s descriptions, policies or procedures shall be submitted to the department for approval.
	41.200(2) AEA application. Each AEA shall submit to the department, 45 calendar days prior to the start of the project year, an application for federal funds under Part B of the Act, implementing federal regulations, and this chapter. An AEA application shall receive department approval only when there is an approved AEA comprehensive plan as described in rule 281—72.9(273) on file at the department and the requirements of subrule 41.200(1) have been met. The application, on forms provided by the department, shall include the following:
	a. 	General information.
	b. 	Utilization of funds.
	c. 	Assurances.
281—41.201(256B,34CFR300) Consistency with state policies. The AEA or LEA, in providing for the education of children with disabilities within its jurisdiction, must have in effect policies, procedures, and programs that are consistent with the state policies and procedures established under 281—41.101(256B,34CFR300) to 281—41.163(256B,34CFR300) and 281—41.165(256B,34CFR300) to 281—41.187(256B).
281—41.202(256B,34CFR300) Use of amounts.
	41.202(1) General. Amounts provided to the AEA or LEA under Part B of the Act must be:
	a. 	Expended in accordance with the applicable provisions of Part B of the Act and this chapter;
	b. 	Used only to pay the excess costs of providing special education and related services to children with disabilities, consistent with subrule 41.202(2); and
	c. 	Used to supplement state, local, and other federal funds, and not to supplant those funds.
	41.202(2) Excess cost requirement.
	a. 	General.
	(1)	The excess cost requirement prevents an AEA or LEA from using funds provided under Part B of the Act to pay for all of the costs directly attributable to the education of a child with a disability, subject to 41.202(2)“a”(2).
	(2)	The excess cost requirement does not prevent an AEA or LEA from using Part B funds to pay for all of the costs directly attributable to the education of a child with a disability aged 3 to 5 or 18 to 20 if no local or state funds are available for nondisabled children of these ages. However, the AEA or LEA must comply with the nonsupplanting and other requirements of Part B of the Act and of this chapter in providing the education and services for these children.
	b. 	Meeting excess cost requirement.
	(1)	An AEA or LEA meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used.
	(2)	The amount described in 41.202(2)“b”(1) is determined in accordance with the definition of excess costs in rule 281—41.16(256B,34CFR300). That amount may not include capital outlay or debt service.
	c. 	Joint establishment of eligibility. If two or more AEAs or LEAs jointly establish eligibility in accordance with rule 281—41.223(256B,34CFR300), the minimum average amount is the average of the combined minimum average amounts determined in accordance with the definition of excess costs in rule 281—41.16(256B,34CFR300) in those agencies for elementary or secondary school students, as the case may be.
281—41.203(256B,34CFR300) Maintenance of effort.
	41.203(1) Eligibility standard.
	a. 	For purposes of establishing the LEA’s eligibility for an award for a fiscal year, the SEA must determine that the LEA budgets, for the education of children with disabilities, at least the same amount, from at least one of the following sources, as the LEA spent for that purpose from the same source for the most recent fiscal year for which information is available:
	(1)	Local funds only;
	(2)	The combination of state and local funds;
	(3)	Local funds only on a per capita basis; or
	(4)	The combination of state and local funds on a per capita basis.
	b. 	When determining the amount of funds that the LEA must budget to meet the requirement in paragraph 41.203(1)“a,” the LEA may take into consideration, to the extent the information is available, the exceptions and adjustment provided in rules 281—41.204(256B,34CFR300) and 281—41.205(256B,34CFR300) that the LEA:
	(1)	Took in the intervening year or years between the most recent fiscal year for which information is available and the fiscal year for which the LEA is budgeting; and
	(2)	Reasonably expects to take in the fiscal year for which the LEA is budgeting.
	c. 	Expenditures made from funds provided by the federal government for which the SEA is required to account to the federal government or for which the LEA is required to account to the federal government directly or through the SEA may not be considered in determining whether an LEA meets the standard in paragraph 41.203(1)“a.”
	41.203(2) Compliance standard.
	a. 	Except as provided in rules 281—41.204(256B,34CFR300) and 281—41.205(256B,34CFR300), funds provided to an LEA under Part B of the Act must not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from local funds below the level of those expenditures for the preceding fiscal year.
	b. 	An LEA meets this standard if it does not reduce the level of expenditures for the education of children with disabilities made by the LEA from at least one of the following sources below the level of those expenditures from the same source for the preceding fiscal year, except as provided in rules 281—41.204(256B,34CFR300) and 281—41.205(256B,34CFR300):
	(1)	Local funds only;
	(2)	The combination of state and local funds;
	(3)	Local funds only on a per capita basis; or
	(4)	The combination of state and local funds on a per capita basis.
	c. 	Expenditures made from funds provided by the federal government for which the SEA is required to account to the federal government or for which the LEA is required to account to the federal government directly or through the SEA may not be considered in determining whether an LEA meets the standard in paragraphs 41.203(2)“a” and 41.203(2)“b.”
	41.203(3) Subsequent years.
	a. 	If, in the fiscal year beginning on July 1, 2013, or July 1, 2014, an LEA fails to meet the requirements of 34 CFR 300.203 and rule 281—41.203(256B,34CFR300) in effect at that time, the level of expenditures required of the LEA for the fiscal year subsequent to the year of the failure is the amount that would have been required in the absence of that failure, not the LEA’s reduced level of expenditures.
	b. 	If, in any fiscal year beginning on or after July 1, 2015, an LEA fails to meet the requirement of subparagraph 41.203(2)“b”(1) or 41.203(2)“b”(3) and the LEA is relying on local funds only, or local funds only on a per capita basis, to meet the requirements of subrule 41.203(1) or 41.203(2), the level of expenditures required of the LEA for the fiscal year subsequent to the year of the failure is the amount that would have been required under subparagraph 41.203(2)“b”(1) or 41.203(2)“b”(3) in the absence of that failure, not the LEA’s reduced level of expenditures.
	c. 	If, in any fiscal year beginning on or after July 1, 2015, an LEA fails to meet the requirement of subparagraph 41.203(2)“b”(2) or 41.203(2)“b”(4) and the LEA is relying on the combination of state and local funds, or the combination of state and local funds on a per capita basis, to meet the requirements of subrule 41.203(1) or 41.203(2), the level of expenditures required of the LEA for the fiscal year subsequent to the year of the failure is the amount that would have been required under subparagraph 41.203(2)“b”(2) or 41.203(2)“b”(4) in the absence of that failure, not the LEA’s reduced level of expenditures.
	41.203(4) Consequence of failure to maintain effort. If an LEA fails to maintain its level of expenditures for the education of children with disabilities in accordance with subrule 41.203(2), the SEA is liable in a recovery action under Section 452 of the General Education Provisions Act (20 U.S.C. 1234a) to return to the U.S. Department of Education, using nonfederal funds, an amount equal to the amount by which the LEA failed to maintain its level of expenditures in accordance with subrule 41.203(2) in that fiscal year, or the amount of the LEA’s Part B subgrant in that fiscal year, whichever is lower.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.204(256B,34CFR300) Exception to maintenance of effort. Notwithstanding the restriction in subrule 41.203(2), an AEA or LEA may reduce the level of expenditures by the AEA or LEA under Part B of the Act below the level of those expenditures for the preceding fiscal year if the reduction is attributable to any of the following:
	41.204(1) Departure of personnel. The voluntary departure, by retirement or otherwise, or departure for just cause, of special education or related services personnel.
	41.204(2) Decrease in enrollment. A decrease in the enrollment of children with disabilities.
	41.204(3) Termination of obligation to provide an “exceptionally costly” program to a particular child. The termination of the obligation of the agency to provide a program of special education to a particular child with a disability that is an exceptionally costly program, as determined by the SEA, because the child:
	a. 	Has left the jurisdiction of the agency;
	b. 	Has reached the age at which the obligation of the agency to provide FAPE to the child has terminated; or
	c. 	No longer needs the program of special education.
	41.204(4) Termination of costly expenditures for long-term purchases. The termination of costly expenditures for long-term purchases, such as the acquisition of equipment.
	41.204(5) High-cost fund. The assumption of cost by the high-cost fund operated by the state under this chapter.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.205(256B,34CFR300) Adjustment to local fiscal efforts in certain fiscal years.
	41.205(1) Amounts in excess. Notwithstanding 41.202(1)“b,” 41.202(2), and 41.203(2), and except as provided in 41.205(4) and 34 CFR 300.230(e)(2), for any fiscal year for which the allocation received by an LEA under rule 281—41.705(256B,34CFR300) exceeds the amount the LEA received for the previous fiscal year, the LEA may reduce the level of expenditures otherwise required by subrule 41.203(2) by not more than 50 percent of the amount of that excess.
	41.205(2) Use of amounts to carry out activities under ESEA. If an LEA exercises the authority under subrule 41.205(1), the LEA must use an amount of local funds equal to the reduction in expenditures under subrule 41.205(1) to carry out activities that could be supported with funds under the ESEA regardless of whether the LEA is using funds under the ESEA for those activities.
	41.205(3) State prohibition. Notwithstanding subrule 41.205(1), if the SEA determines that an LEA is unable to establish and maintain programs of FAPE that meet the requirements of Section 613(a) of the Act and of this chapter or the SEA has taken action against the LEA under Section 616 of the Act and rules 281—41.600(256B,34CFR300) to 281—41.609(256B,34CFR300), the SEA must prohibit the LEA from reducing the level of expenditures under subrule 41.205(1) for that fiscal year.
	41.205(4) Special rule. The amount of funds expended by an LEA for early intervening services under rule 281—41.226(256B,34CFR300) shall count toward the maximum amount of expenditures that the LEA may reduce under subrule 41.205(1).
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.206(256B,34CFR300) Schoolwide programs under Title I of the ESEA.
	41.206(1) General. Notwithstanding the provisions of rules 281—41.202(256B,34CFR300) and 281—41.203(256B,34CFR300) or any other provision of Part B of the Act, an LEA may use funds received under Part B of the Act for any fiscal year to carry out a schoolwide program under Section 1114 of the ESEA, except that the amount used in any schoolwide program may not exceed the amount received by the LEA under Part B of the Act for that fiscal year; divided by the number of children with disabilities in the jurisdiction of the LEA; and multiplied by the number of children with disabilities participating in the schoolwide program.
	41.206(2) Funding conditions. The funds described in subrule 41.206(1) are subject to the following conditions:
	a. 	The funds must be considered as federal Part B funds for purposes of the calculations required by 41.202(1)“b” and “c.”
	b. 	The funds may be used without regard to the requirements of 41.202(1)“a.”
	41.206(3) Meeting other Part B requirements. Except as provided in subrule 41.206(2), all other requirements of Part B of the Act must be met by an LEA using Part B funds in accordance with subrule 41.206(1), including ensuring that children with disabilities in schoolwide program schools:
	a. 	Receive services in accordance with a properly developed IEP; and
	b. 	Are afforded all of the rights and services guaranteed to children with disabilities under the Act.
281—41.207(256B,34CFR300) Personnel development. Each public agency must ensure that all personnel necessary to carry out Part B of the Act are appropriately and adequately prepared, subject to the requirements of rule 281—41.156(256B,34CFR300) related to personnel qualifications and Section 2102(b) of the ESEA.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.208(256B,34CFR300) Permissive use of funds.
	41.208(1) Uses. Notwithstanding rule 281—41.202(256B,34CFR300) and subrules 41.203(2) and 41.162(2), funds provided to an LEA under Part B of the Act may be used for the following activities:
	a. 	Services and aids that also benefit nondisabled children. For the costs of special education and related services and supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in accordance with the IEP of the child, even if one or more nondisabled children benefit from these services. This provision may not be construed to apply to rules 281—41.172(256B,34CFR300) and 281—41.210(256B,34CFR300).
	b. 	Early intervening services. To develop and implement coordinated, early intervening educational services in accordance with rule 281—41.226(256B,34CFR300). Such development and implementation may be required by the SEA under subrule 41.646(2).
	c. 	High-cost special education and related services. To establish and implement cost- or risk-sharing funds, consortia, or cooperatives for the LEA itself, or for LEAs working in a consortium of which the LEA is a part, to pay for high-cost special education and related services.
	41.208(2) Administrative case management. An LEA may use funds received under Part B of the Act to purchase appropriate technology for record keeping, data collection, and related case management activities of teachers and related services personnel providing services described in the IEP of children with disabilities, that is needed for the implementation of those case management activities.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.209(256B,34CFR300) Treatment of charter schools and their students.
	41.209(1) Rights of children with disabilities. Children with disabilities who attend public charter schools and their parents retain all rights under this chapter.
	41.209(2) Charter schools that are public schools of the LEA.
	a. 	General. In carrying out Part B of the Act and these rules with respect to charter schools that are public schools of the LEA, the LEA must:
	(1)	Serve children with disabilities attending those charter schools in the same manner as the LEA serves children with disabilities in its other schools, including providing supplementary and related services on site at the charter school to the same extent to which the LEA has a policy or practice of providing such services on the site to its other public schools; and
	(2)	Provide funds under Part B of the Act to those charter schools:
	1.	On the same basis as the LEA provides funds to the LEA’s other public schools, including proportional distribution based on relative enrollment of children with disabilities; and
	2.	At the same time as the LEA distributes other federal funds to the LEA’s other public schools, consistent with the state’s charter school law.
	b. 	Relationship to rule 281—41.705(256B,34CFR300). If the public charter school is a school of an LEA that receives funding under rule 281—41.705(256B,34CFR300) and includes other public schools:
	(1)	The LEA is responsible for ensuring that the requirements of this chapter are met, unless state law assigns that responsibility to some other entity; and
	(2)	The LEA must meet the requirements of 41.209(2)“a.”
281—41.210(256B,34CFR300) Purchase of instructional materials.
	41.210(1) General. An AEA, an LEA, or any other public agency, when purchasing print instructional materials, must acquire those instructional materials for children who are blind or for other persons with print disabilities in a manner consistent with subrule 41.210(3) and ensure delivery of those materials in a timely manner to those children.
	41.210(2) Rights and responsibilities of AEA or LEA. Nothing in this rule relieves the LEA or AEA or any other public agency of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, but who are not included under the definition of blind persons or other persons with print disabilities in 41.210(4)“a” or who need materials that cannot be produced from NIMAS files, receive those instructional materials in a timely manner, as defined in 41.172(1)“b.”
	41.210(3) Preparation and delivery of files. Because the state chooses to coordinate with the NIMAC, an AEA, an LEA, or any other public agency must:
	a. 	As part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, enter into a written contract with the publisher of the print instructional materials to:
	(1)	Require the publisher to prepare and, on or before delivery of the print instructional materials, provide to NIMAC electronic files containing the contents of the print instructional materials using the NIMAS; or
	(2)	Purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.
	b. 	Provide instructional materials to blind persons or other persons with print disabilities in a timely manner.
	41.210(4) Definitions. The following definitions apply to this rule and rule 281— 41.172(256B,34CFR300), and apply to each state and LEA, regardless of whether the state or LEA chooses to coordinate with the NIMAC:
	a. 	“Blind persons or other persons with print disabilities” means children served under this chapter who may qualify to receive books and other publications produced in specialized formats in accordance with 2 U.S.C. 135a and 36 CFR 701.6. Persons who may receive material in specialized formats include persons who are blind, who have visual disabilities, have certain physical disabilities, or who have reading disabilities resulting from organic dysfunction, as those terms are defined in 36 CFR 701.6(b)(1), and who have obtained certification from a “competent authority,” as defined in 36 CFR 701.6(b)(2).
	b. 	“National Instructional Materials Access Center” or “NIMAC” means the center established pursuant to Section 674(e) of the Act.
	c. 	“National Instructional Materials Accessibility Standard” or “NIMAS” has the meaning given the term in Section 674(e)(3)(B) of the Act.
	d. 	“Print instructional materials” has the meaning given the term in Section 674(e)(3)(C) of the Act.
	e. 	“Specialized formats” has the meaning given the term in Section 674(e)(3)(D) of the Act.
281—41.211(256B,34CFR300) Information for department. Each public agency shall provide the department with information necessary to enable the department to carry out its duties under Part B of the Act and this chapter, including, with respect to 34 CFR Section 300.157, information relating to the performance of children with disabilities participating in programs carried out under Part B of the Act. This information, including such quantitative and qualitative data as the department may require, shall be submitted in a manner and at a time determined by the department. Failure to submit timely and accurate information may be considered by the department in making the determinations under rule 281—41.603(256B,34CFR300) or in taking any other action to enforce Part B of the Act or this chapter.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.212(256B,34CFR300) Public information. Each public agency must make available to parents of children with disabilities and to the general public all documents relating to the eligibility of the agency under Part B of the Act.
281—41.213(256B,34CFR300) Records regarding migratory children with disabilities. Each AEA or LEA must cooperate in the Secretary’s efforts under Section 1308 of the ESEA to ensure the linkage of records pertaining to migratory children with disabilities for the purpose of electronically exchanging, among the states, health and educational information regarding those children.
281—41.214 to 41.219  Reserved.
281—41.220(256B,34CFR300) Exception for prior local plans.
	41.220(1) General. If an AEA or LEA or a state agency described in rule 281—41.228(256B,34CFR300) has on file with the SEA policies and procedures that demonstrate that the AEA or LEA or state agency meets any requirement of 281—41.200(256B,34CFR300), including any policies and procedures filed under Part B of the Act as in effect before December 3, 2004, the SEA must consider the AEA or LEA or state agency to have met that requirement for purposes of receiving assistance under Part B of the Act.
	41.220(2) Modification made by an AEA or LEA or state agency. Subject to subrule 41.220(3), policies and procedures submitted by an LEA or a state agency remain in effect until the AEA or LEA or state agency submits to the SEA the modifications that the AEA or LEA or state agency determines are necessary.
	41.220(3) Modifications required by the SEA. The SEA may require an AEA or LEA or a state agency to modify its policies and procedures, but only to the extent necessary to ensure the LEA’s or state agency’s compliance with Part B of the Act or state law, if:
	a. 	After December 3, 2004, the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the applicable provisions of the Act, or the regulations developed to carry out the Act, are amended;
	b. 	There is a new interpretation of an applicable provision of the Act by federal or state courts; or
	c. 	There is an official finding of noncompliance with federal or state law or regulations.
281—41.221(256B,34CFR300) Notification of AEA or LEA or state agency in case of ineligibility. If the state determines that an AEA or LEA or state agency is not eligible under Part B of the Act, then the state must notify the AEA or LEA or state agency of that determination and provide the AEA or LEA or state agency with reasonable notice and an opportunity for a hearing. This hearing shall not be considered a contested case under Iowa Code chapter 17A.
281—41.222(256B,34CFR300) AEA or LEA and state agency compliance.
	41.222(1) General. If the state, after reasonable notice and an opportunity for a hearing, finds that an AEA or LEA or state agency that has been determined to be eligible under this chapter is failing to comply with any requirement described in rules 281—41.201(256B,34CFR300) to 281—41.213(256B,34CFR300), the state must reduce or must not provide any further payments to the AEA or LEA or state agency until the state is satisfied that the AEA or LEA or state agency is complying with that requirement.
	41.222(2) Notice requirement. Any state agency or AEA or LEA in receipt of a notice described in subrule 41.222(1), by means of public notice, must take the measures necessary to bring the pendency of an action pursuant to this rule to the attention of the public within the jurisdiction of the agency.
	41.222(3) Consideration. In carrying out its responsibilities under this rule, the state must consider any decision resulting from a hearing held under rules 281—41.511(256B,34CFR300) to 281—41.533(256B,34CFR300) that is adverse to the AEA or LEA or state agency involved in the decision.
281—41.223(256B,34CFR300) Joint establishment of eligibility.
	41.223(1) General. The state may require an AEA or LEA to establish its eligibility jointly with another AEA or LEA if the state determines that the AEA or LEA will be ineligible because the agency will not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities.
	41.223(2) Reserved.
	41.223(3) Amount of payments. If the state requires the joint establishment of eligibility under subrule 41.223(1), the total amount of funds made available to the affected AEAs or LEAs must be equal to the sum of the payments that each AEA or LEA would have received under rule 281—41.705(256B,34CFR300) if the agencies were eligible for those payments.
281—41.224(256B,34CFR300) Requirements for jointly establishing eligibility.
	41.224(1) Requirements for AEAs or LEAs in general. AEAs or LEAs that establish joint eligibility under this rule must:
	a. 	Adopt policies and procedures that are consistent with the state’s policies and procedures under rules 281—41.101(256B,34CFR300) to 281—41.163(256B,34CFR300) and 281—41.165(256B,34CFR300) to 281—41.187(256B); and
	b. 	Be jointly responsible for implementing programs that receive assistance under Part B of the Act.
	41.224(2) Requirements for educational service agencies in general. If an educational service agency is required by state law to carry out programs under Part B of the Act, the joint responsibilities given to AEAs or LEAs under Part B of the Act:
	a. 	Do not apply to the administration and disbursement of any payments received by that educational service agency; and
	b. 	Must be carried out only by that educational service agency.
	41.224(3) Additional requirement. Notwithstanding any other provision of rule 281—41.223(256B,34CFR300) and this rule, an educational service agency must provide for the education of children with disabilities in the least restrictive environment, as required by this chapter.
281—41.225  Reserved.
281—41.226(256B,34CFR300) Early intervening services.
	41.226(1) General. An AEA or LEA may not use more than 15 percent of the amount the AEA or LEA receives under Part B of the Act for any fiscal year, less any amount reduced by the AEA or LEA pursuant to rule 281—41.205(256B,34CFR300), if any, in combination with other amounts, which may include amounts other than education funds, to develop and implement coordinated, early intervening services, which may include interagency financing structures, for students in kindergarten through grade 12, with a particular emphasis on students in kindergarten through grade 3, 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.
	41.226(2) Activities. In implementing coordinated, early intervening services under this rule, an AEA or LEA may carry out activities that include:
	a. 	Professional development, which may be provided by other entities, for teachers and other school staff to enable such personnel to deliver scientifically based academic and behavioral interventions, including scientifically based literacy instruction and, where appropriate, instruction on the use of adaptive and instructional software; and
	b. 	Providing educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction.
	41.226(3) Construction. Nothing in this rule shall be construed to either limit or create a right to FAPE under Part B of the Act or to delay appropriate evaluation of a child suspected of having a disability.
	41.226(4) Reporting: in general. Each AEA or LEA that develops and maintains coordinated, early intervening services under this rule must annually report to the SEA on:
	a. 	The number of children served under this rule who received early intervening services; and
	b. 	The number of children served under this rule who received early intervening services and subsequently receive special education and related services under Part B of the Act during the preceding two-year period.
	41.226(5) Reporting: disproportionality. If an LEA is required to reserve the maximum amount available under this rule for early intervening services because of a determination of significant disproportionality under rule 281—41.646(256B,34CFR300), that LEA must make additional reports on the use of funds under this rule and rule 281—41.646(256B,34CFR300), as required by the SEA.
	41.226(6) Coordination with ESEA. Funds made available to carry out this rule may be used to carry out coordinated, early intervening services aligned with activities funded by and carried out under the ESEA if those funds are used to supplement, and not supplant, funds made available under the ESEA for the activities and services assisted under this rule.
281—41.227  Reserved.
281—41.228(256B,34CFR300) State agency eligibility. Any state agency that desires to receive a subgrant for any fiscal year under rule 281—41.705(256B,34CFR300) must demonstrate to the satisfaction of the state that all children with disabilities who are participating in programs and projects funded under Part B of the Act receive FAPE, and that those children and their parents are provided all the rights and procedural safeguards described in this chapter; and the agency meets the other conditions of this chapter that apply to LEAs.
281—41.229(256B,34CFR300) Disciplinary information.
	41.229(1) Requirement of transmittal of disciplinary records. Pursuant to Iowa Code section 279.9A, the state requires that a public agency include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is included in, and transmitted with, the student records of children without disabilities.
	41.229(2) Contents of transmittal. The transmittal shall include an accurate record of any suspension or expulsion actions taken and the basis for those actions taken. It may include any other information that is relevant to the safety of the child and other individuals involved with the child, to the extent that information is transmitted for children without disabilities.
	41.229(3) Additional contents of transmittal. If the child transfers from one school to another, the transmission of any of the child’s records must include both the child’s current IEP and any statement of current or previous disciplinary action that has been taken against the child.
	41.229(4) When transmittal must occur. Pursuant to Iowa Code section 279.9A, a transmittal of records under this rule shall occur if requested by officials of the school to which the student seeks to transfer or has transferred.
	41.229(5) Additional state law requirement. Pursuant to Iowa Code section 279.9A, this rule applies also to accredited nonpublic schools, as well as AEAs.
281—41.230(256B,34CFR300) SEA flexibility. The department reserves to itself the flexibility provided by 34 CFR Section 300.230.
281—41.231 to 41.299  Reserved.
DIVISION V
EVALUATION, ELIGIBILITY, IEPs, AND PLACEMENT DECISIONS
281—41.300(256B,34CFR300) Parental consent and participation.
	41.300(1) Parental consent for initial evaluation.
	a. 	General.
	(1)	The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under this chapter must, after providing notice consistent with rules 281—41.503(256B,34CFR300) and 281—41.504(256B,34CFR300), obtain informed consent, consistent with rule 281—41.9(256B,34CFR300), from the parent of the child before conducting the evaluation.
	(2)	Parental consent for an initial evaluation must not be construed as consent for initial provision of special education and related services.
	(3)	The public agency must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability.
	b. 	Special rule: initial evaluation for a child who is a ward of the state and not residing with a parent. For initial evaluations only, if the child is a ward of the state and is not residing with the child’s parent, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability if:
	(1)	Despite reasonable efforts to do so, the public agency cannot discover the whereabouts of the parent of the child;
	(2)	The rights of the parents of the child have been terminated in accordance with state law; or
	(3)	The rights of the parent to make educational decisions have been subrogated by a judge in accordance with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.
	c. 	Parental refusal to provide consent for initial evaluation.
	(1)	If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under 41.300(1)“a,” or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in this chapter, including the mediation procedures under rule 281—41.506(256B,34CFR300) or the due process procedures under rules 281—41.507(256B,34CFR300) to 281—41.516(256B,34CFR300), if appropriate, except to the extent inconsistent with state law relating to such parental consent.
	(2)	The public agency does not violate its obligation under rules 281—41.111(256B,34CFR300) and 281—41.301(256B,34CFR300) to 281—41.311(256B,34CFR300) if it declines to pursue the evaluation under 41.300(1)“c”(1).
	41.300(2) Parental consent for services.
	a. 	A public agency that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.
	b. 	The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.
	c. 	If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency:
	(1)	May not use the procedural safeguards in this chapter, including the mediation procedures rule 281—41.506(256B,34CFR300) or the due process procedures under rules 281—41.507(256B,34CFR300) through 281—41.516(256B,34CFR300) in order to obtain agreement or a ruling that the services may be provided to the child;
	(2)	Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and
	(3)	Is not required to convene an IEP team meeting or develop an IEP under rules 281—41.320(256B,34CFR300) and 281—41.324(256B,34CFR300) for the child.
	d. 	If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency:
	(1)	May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with rule 281—41.503(256B,34CFR300) before ceasing the provision of special education and related services;
	(2)	May not use the procedural safeguards in this chapter, including the mediation procedures rule 281—41.506(256B,34CFR300) or the due process procedures under rules 281—41.507(256B,34CFR300) through 281—41.516(256B,34CFR300) in order to obtain agreement or a ruling that the services may be provided to the child;
	(3)	Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and
	(4)	Is not required to convene an IEP team meeting or develop an IEP under rules 281—41.320(256B,34CFR300) and 281—41.324(256B,34CFR300) for the child for further provision of special education and related services.
	41.300(3) Parental consent for reevaluations.
	a. 	General. Subject to 41.300(3)“b”:
	(1)	Each public agency must obtain informed parental consent, in accordance with 41.300(1)“a,” prior to conducting any reevaluation of a child with a disability.
	(2)	If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in 41.300(1)“c.”
	(3)	The public agency does not violate its obligation under rules 281—41.111(256B,34CFR300) and 281—41.301(256B,34CFR300) to 281—41.311(256B,34CFR300) if it declines to pursue the evaluation or reevaluation.
	b. 	Exception. The informed parental consent described in 41.300(3)“a” need not be obtained if the public agency can demonstrate that:
	(1)	It made reasonable efforts to obtain such consent; and
	(2)	The child’s parent has failed to respond.
	41.300(4) Other consent requirements.
	a. 	When parental consent not required. Parental consent is not required before:
	(1)	A review of existing data as part of an evaluation or a reevaluation; or
	(2)	Administration of a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.
	b. 	Additional consent requirements. In addition to the parental consent requirements described in subrules 41.300(1) through 41.300(3), the state may require parental consent for other services and activities under Part B of the Act and of this chapter if it ensures that each public agency in the state establishes and implements effective procedures to ensure that a parent’s refusal to consent does not result in a failure to provide the child with FAPE.
	c. 	Limitation on public agency’s use of failure to give consent. A public agency may not use a parent’s refusal to consent to one service or activity under subrules 41.300(1) through 41.300(3) or paragraph 41.300(4)“b” to deny the parent or child any other service, benefit, or activity of the public agency, except as required by this chapter.
	d. 	Children who are home schooled or placed by their parents in private schools.
	(1)	If a parent of a child who is home schooled or placed in a private school by the parents at their own expense does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the public agency may not use the consent override procedures described in 41.300(1)“c” and 41.300(3)“a”; and
	(2)	The public agency is not required to consider the child as eligible for services under rules 281—41.132(256B,34CFR300) to 281—41.144(256B,34CFR300).
	e. 	Documenting reasonable efforts. To meet the reasonable efforts requirement in 41.300(1)“a”(3), 41.300(1)“b”(1), 41.300(2)“b,” and 41.300(3)“b”(1), the public agency must document its attempts to obtain parental consent using the procedures in subrule 41.322(4).
	41.300(5) Parent participation. The identification process shall include interactions with the individual, the individual’s parents, school personnel, and others having specific responsibilities for or knowledge of the individual. AEA and LEA personnel shall seek active parent participation throughout the process, directly communicate with parents, and encourage parents to participate at all decision points.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.301(256B,34CFR300) Full and individual initial evaluations.
	41.301(1) General. Each public agency must conduct a full and individual initial evaluation, in accordance with rules 281—41.304(256B,34CFR300) to 281—41.306(256B,34CFR300), before the initial provision of special education and related services to a child with a disability under this chapter.
	41.301(2) Request for initial evaluation. Consistent with the consent requirements in rule 281—41.300(256B,34CFR300), either a parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.
	41.301(3) Procedures for initial evaluation. The initial evaluation:
	a. 	Must be conducted within 60 calendar days of receiving parental consent for the evaluation;
	b. 	Must consist of procedures:
	(1)	To determine if the child is a child with a disability under this chapter; and
	(2)	To determine the educational needs of the child.
	41.301(4) Exception. The time frame described in 41.301(3)“a” does not apply to a public agency if:
	a. 	The parent of a child repeatedly fails or refuses to produce the child for the evaluation; or
	b. 	A child enrolls in a school of another public agency after the relevant time frame in 41.301(3)“a” has begun, and prior to a determination by the child’s previous public agency as to whether the child is a child with a disability under this chapter.
	41.301(5) Applicability of exception in 41.301(4)“b.” The exception in 41.301(4)“b” applies only if the subsequent public agency is making sufficient progress to ensure a prompt completion of the evaluation and the parent and the subsequent public agency agree to a specific time when the evaluation will be completed.
	41.301(6) Content of full and individual initial evaluation. The purpose of the evaluation is to determine the educational interventions that are required to resolve the presenting problem, behaviors of concern, or suspected disability, including whether the educational interventions are special education. An evaluation shall include:
	a. 	A n objective definition of the presenting problem, behaviors of concern, or suspected disability.
	b. 	Analysis of existing information about the individual, as described in 41.305(1)“a.”
	c. 	Identification of the individual’s strengths or areas of competence relevant to the presenting problem, behaviors of concern, or suspected disability.
	d. 	Collection of additional information needed to design interventions intended to resolve the presenting problem, behaviors of concern, or suspected disability, including, if appropriate, assessment or evaluation of health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, adaptive behavior and motor abilities.
281—41.302(256B,34CFR300) Screening for instructional purposes is not evaluation. The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.
281—41.303(256B,34CFR300) Reevaluations.
	41.303(1) General. A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with rules 281—41.304(256B,34CFR300) to 281—41.311(256B,34CFR300):
	a. 	If the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or
	b. 	If the child’s parent or teacher requests a reevaluation.
	41.303(2) Limitation. A reevaluation conducted under subrule 41.303(1):
	a. 	May occur not more than once a year, unless the parent and the public agency agree otherwise; and
	b. 	Must occur at least once every three years, unless the parent and the public agency agree that a reevaluation is unnecessary.
281—41.304(256B,34CFR300) Evaluation procedures.
	41.304(1) Notice. The public agency must provide notice to the parents of a child with a disability, in accordance with rule 281—41.503(256B,34CFR300), that describes any evaluation procedures the agency proposes to conduct.
	41.304(2) Conduct of evaluation. In conducting the evaluation, the public agency must:
	a. 	Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining:
	(1)	Whether the child is a child with a disability under this chapter; and
	(2)	The content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities);
	b. 	Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and
	c. 	Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
	41.304(3) Other evaluation procedures. Each public agency must ensure that:
	a. 	Assessments and other evaluation materials used to assess a child under this chapter:
	(1)	Are selected and administered so as not to be discriminatory on a racial or cultural basis;
	(2)	Are provided and administered in the child’s native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer;
	(3)	Are used for the purposes for which the assessments or measures are valid and reliable;
	(4)	Are administered by trained and knowledgeable personnel; and
	(5)	Are administered in accordance with any instructions provided by the producer of the assessments.
	b. 	Assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.
	c. 	Assessments are selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).
	d. 	The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.
	e. 	Assessments of children with disabilities who transfer from one public agency to another public agency in the same school year are coordinated with those children’s prior and subsequent schools, as necessary and as expeditiously as possible, consistent with 41.301(4)“b” and 41.301(5), to ensure prompt completion of full evaluations.
	f. 	The evaluation of each child with a disability under rules 281—41.304(256B,34CFR300) to 281—41.306(256B,34CFR300) is sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.
	g. 	Assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.
281—41.305(256B,34CFR300) Additional requirements for evaluations and reevaluations.
	41.305(1) Review of existing evaluation data. As part of an initial evaluation, if appropriate, and as part of any reevaluation under this chapter, the IEP team and other qualified professionals, as appropriate, must:
	a. 	Review existing evaluation data on the child, including:
	(1)	Evaluations and information provided by the parents of the child;
	(2)	Current classroom-based, local, or state assessments, and classroom-based observations; and
	(3)	Observations by teachers and related services providers; and
	b. 	On the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine:
	(1)	Whether the child is a child with a disability, as defined in this chapter, and the educational needs of the child or, in the case of a reevaluation of a child, whether the child continues to have such a disability, and the educational needs of the child;
	(2)	The present levels of academic achievement and related developmental needs of the child;
	(3)	Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
	(4)	Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.
	41.305(2) Conduct of review. The group described in subrule 41.305(1) may conduct its review without a meeting.
	41.305(3) Source of data. The public agency must administer such assessments and other evaluation measures as may be needed to produce the data identified under subrule 41.305(1).
	41.305(4) Requirements if additional data are not needed.
	a. 	If the IEP team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability or to determine the child’s educational needs, the public agency must notify the child’s parents of:
	(1)	The determination and the reasons for the determination; and
	(2)	The right of the parents to request an assessment to determine whether the child continues to be a child with a disability and to determine the child’s educational needs.
	b. 	The public agency is not required to conduct the assessment described in 41.305(4)“a”(2) unless requested to do so by the child’s parents.
	41.305(5) Evaluations before change in eligibility.
	a. 	Except as provided in 41.305(5)“b,” a public agency must evaluate a child with a disability in accordance with these rules before determining that the child is no longer a child with a disability.
	b. 	The evaluation described in 41.305(5)“a” is not required before the termination of a child’s eligibility under this chapter due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for FAPE under state law.
	c. 	For a child whose eligibility terminates under circumstances described in 41.305(5)“b,” a public agency must provide the child with a summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child’s postsecondary goals.
	41.305(6) At no cost to parent. Evaluations or reevaluations under this chapter, including any outside consultations or evaluations, shall be at no cost to the parent. AEAs or LEAs may access a parent’s private insurance or public benefits or insurance, however, provided that a parent gives informed consent consistent with rule 281—41.9(256B,34CFR300) and subrules 41.154(4) and 41.154(5).
281—41.306(256B,34CFR300) Determination of eligibility.
	41.306(1) General. Upon completion of the administration of assessments and other evaluation measures:
	a. 	A group of qualified professionals and the parent of the child determine whether the child is a child with a disability, as defined in this chapter, in accordance with subrule 41.306(3) and the educational needs of the child; and
	b. 	The public agency provides a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.
	41.306(2) Special rule for eligibility determination. A child must not be determined to be a child with a disability under this chapter:
	a. 	If the determinant factor for that determination is:
	(1)	Lack of appropriate instruction in reading, including the essential components of reading instruction, as defined in Section 1208(3) of the ESEA, as such section was in effect on the day before the date of enactment of the Every Student Succeeds Act (December 9, 2015);
	(2)	Lack of appropriate instruction in math; or
	(3)	Limited English proficiency; and
	b. 	If the child does not otherwise meet the eligibility criteria under this chapter.
	41.306(3) Procedures for determining eligibility and educational need.
	a. 	In interpreting evaluation data for the purpose of determining if a child is a child with a disability under this chapter, and the educational needs of the child, each public agency must:
	(1)	Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and
	(2)	Ensure that information obtained from all of these sources is documented and carefully considered.
	b. 	If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child in accordance with these rules.
	c. 	All determinations of eligibility must be based on the individual’s disability (progress and discrepancy) and need for special education.
	41.306(4) Director’s certification. If a child is determined to be an eligible individual pursuant to these rules, the AEA director of special education shall certify the individual’s entitlement for special education. A confidential record, subject to audit by the department, registering the name and required special education and related services of each eligible individual shall be maintained by the AEA, and provision shall be made for its periodic revision.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.307(256B,34CFR300) Specific learning disabilities.
	41.307(1) General. The state adopts, consistent with rule 281—41.309(256B,34CFR300), criteria for determining whether a child is an eligible individual on the basis of a specific learning disability as defined in subrule 41.50(10). In addition, the criteria adopted by the state:
	a. 	Requires the use of a process based on the child’s response to scientific, research-based intervention or the use of other alternative research-based procedures for determining whether a child has a specific learning disability, as defined in subrule 41.50(10); and
	b. 	Prohibits the use of a severe discrepancy between intellectual ability and achievement for determining whether a child is an eligible individual on the basis of a specific learning disability.
	41.307(2) Consistency with state criteria. A public agency must use the state criteria adopted pursuant to subrule 41.307(1) in determining whether a child is an eligible individual on the basis of a specific learning disability.
	41.307(3) Rule of construction: “Labelling.” Nothing in this rule or rules 281— 41.308(256B,34CFR300) to 281—41.311(256B,34CFR300) shall be construed as requiring children evaluated under these rules to be classified as having a specific learning disability, as long as the child is regarded as a child with a disability or an eligible individual under this chapter.
	41.307(4) Rule of construction: Use of rules 281—41.307(256B,34CFR300) to 281— 41.310(256B,34CFR300). Nothing in this rule or rule 281—41.308(256B,34CFR300) or 281—41.311(256B,34CFR300) shall be construed as limiting its applicability solely to determining whether a child is an eligible individual on the basis of a specific learning disability. The procedures, methods, etc. listed in this rule and rules 281—41.308(256B,34CFR300) and 281—41.310(256B,34CFR300) may be employed in evaluating any child suspected of being an eligible individual, if appropriate in the child’s circumstances.
281—41.308(256B,34CFR300) Additional group members. The determination of whether a child suspected of being an eligible individual due to the presence of a specific learning disability is a child with a disability as defined in this chapter, must be made by the child’s parents and a team of qualified professionals, which must include the following persons:
	41.308(1) Required teachers.
	a. 	The child’s general education teacher; or
	b. 	If the child does not have a general education teacher, a general education teacher qualified to teach a child of his or her age; or
	c. 	For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age.
	41.308(2) Individual qualified to conduct diagnostic examinations. At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or a remedial reading teacher.
281—41.309(256B,34CFR300) Determining the existence of a specific learning disability.
	41.309(1) Required determinations. The group described in rule 281—41.306(256B,34CFR300) may determine that a child has a specific learning disability, as defined in subrule 41.50(10), after considering the following three factors:
	a. 	Lack of adequate achievement. The child does not achieve adequately for the child’s age, grade-level expectations or such grade-level standards the SEA may choose to adopt in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child’s age or grade-level expectations or such grade-level standards the SEA may choose to adopt:
	(1)	Oral expression.
	(2)	Listening comprehension.
	(3)	Written expression.
	(4)	Basic reading skill.
	(5)	Reading fluency skills.
	(6)	Reading comprehension.
	(7)	Mathematics calculation.
	(8)	Mathematics problem solving.
	b. 	Lack of adequate progress.
	(1)	The child does not make sufficient progress to meet age expectations, grade-level expectations, or such state-approved grade-level standards as the state may choose to adopt in one or more of the areas identified in 41.309(1)“a” when using a process based on the child’s response to scientific, research-based intervention; or
	(2)	The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level expectations, such state-approved grade-level standards as the state may choose to adopt, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with rules 281—41.304(256B,34CFR300) and 281—41.305(256B,34CFR300).
	c. 	Exclusionary factors. The group determines that its findings under 41.309(1)“a” and 41.309(1)“b” are not primarily the result of:
	(1)	A visual, hearing, or motor disability;
	(2)	Intellectual disability;
	(3)	Emotional disturbance;
	(4)	Cultural factors;
	(5)	Environmental or economic disadvantage; or
	(6)	Limited English proficiency.
	41.309(2) Review of data. To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in rules 281—41.304(256B,34CFR300) to 281—41.306(256B,34CFR300):
	a. 	Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and
	b. 	Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child’s parents.
	41.309(3) When consent required. The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services and must adhere to the time frames described in rules 281—41.301(256B,34CFR300) and 281—41.303(256B,34CFR300):
	a. 	If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in 41.309(2)“a” and “b”; and
	b. 	Whenever a child is referred for an evaluation.
	41.309(4) Rule of construction. Subparagraph 41.309(1)“b”(2) shall not be construed to require a child with a pattern of strengths and weaknesses in performance, achievement, or both, to be identified as an eligible individual, absent a determination that the child has a disability and needs special education and related services.
	41.309(5) Rule of construction. A process by which a child’s response to intervention is measured is a component of a full and individual evaluation and is not, considered alone, a full and individual evaluation, unless the response to intervention process contains all required elements of a full and individual evaluation under this chapter.
[ARC 9376B, IAB 2/23/11, effective 3/30/11]
281—41.310(256B,34CFR300) Observation.
	41.310(1) Observation required. The public agency must ensure that the child is observed in the child’s learning environment, including the regular classroom setting, to document the child’s academic performance and behavior in the areas of difficulty.
	41.310(2) Who must observe. The group described in 41.306(1)“a,” in determining whether a child has a specific learning disability, must decide to:
	a. 	Use information from an observation in routine classroom instruction and monitoring of the child’s performance that was done before the child was referred for an evaluation, consistent with rules 281—41.306(256B,34CFR300), 281—41.309(256B,34CFR300), 281—41.312(256B,34CFR300) and 281—41.313(256B,34CFR300); or
	b. 	Have at least one member of the group described in 41.306(1)“a” conduct an observation of the child’s academic performance in the regular classroom after the child has been referred for an evaluation and parental consent, consistent with subrule 41.300(1), is obtained.
	41.310(3) Child less than school age or out of school. In the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age. This subrule also applies to school-age children who must be evaluated during school breaks.
281—41.311(256B,34CFR300) Specific documentation for the eligibility determination.
	41.311(1) Documentation required. For a child suspected of having a specific learning disability, the documentation of the determination that the child is an eligible individual, as required in 41.306(1)“b,” must contain a statement of:
	a. 	Whether the child has a specific learning disability;
	b. 	The basis for making the determination, including an assurance that the determination has been made in accordance with 41.306(3)“a”;
	c. 	The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child’s academic functioning;
	d. 	The educationally relevant medical findings, if any;
	e. 	The determination that:
	(1)	The child does not achieve adequately for the child’s age or to meet grade-level expectations or such grade-level standards the SEA may choose to adopt consistent with 41.309(1)“a”; and
	(2)	The child does not make sufficient progress for the child’s age or to meet grade-level expectations or such grade-level standards the SEA may choose to adopt consistent with 41.309(1)“b”(1); or the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to the child’s age or to meet grade-level expectations, such grade-level standards the SEA may choose to adopt, or intellectual development consistent with 41.309(1)“b”(2);
	f. 	The determination of the group concerning the effects of a visual, hearing, or motor disability; intellectual disability; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the child’s achievement level; and
	g. 	If the child has participated in a process that assesses the child’s response to scientific, research-based intervention:
	(1)	The instructional strategies used and the student-centered data collected; and
	(2)	The documentation that the child’s parents were notified about:
	1.	The state’s policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided;
	2.	Strategies for increasing the child’s rate of learning; and
	3.	The parents’ right to request an evaluation.
	41.311(2) Certification required. Each group member must certify in writing whether the report reflects the member’s conclusion. If it does not reflect the member’s conclusion, the group member must submit a separate statement presenting the member’s conclusions.
[ARC 9376B, IAB 2/23/11, effective 3/30/11]
281—41.312(256B,34CFR300) General education interventions. Each LEA, in conjunction with the AEA, shall attempt to resolve the presenting problem or behaviors of concern in the general education environment prior to conducting a full and individual evaluation. In circumstances when there is a suspicion that a child is an eligible individual under this chapter, the AEA or AEA in collaboration with the LEA shall conduct a full and individual initial evaluation. Documentation of the rationale for such action shall be included in the individual’s educational record.
	41.312(1) Notice to parents. Each LEA shall provide general notice to parents on an annual basis about the provision of general education interventions that occur as a part of the agency’s general program and that may occur at any time throughout the school year.
	41.312(2) Nature of general education interventions. General education interventions shall include consultation with special education support and instructional personnel. General education intervention activities shall be documented and shall include measurable and goal-directed attempts to resolve the presenting problem or behaviors of concern, communication with parents, collection of data related to the presenting problem or behaviors of concern, intervention design and implementation, and systematic progress monitoring to measure the effects of interventions.
	41.312(3) Referral for full and individual initial evaluation. If the referring problem or behaviors of concern are shown to be resistant to general education interventions or if interventions are demonstrated to be effective but require continued and substantial effort that may include the provision of special education and related services, the agency shall then conduct a full and individual initial evaluation.
	41.312(4) Parent may request evaluation at any time. The parent of a child receiving general education interventions may request that the agency conduct a full and individual initial evaluation at any time during the implementation of such interventions.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.313(256B,34CFR300) Systematic problem-solving process.
	41.313(1) Definition. When used by an AEA in its identification process, “systematic problem-solving” means a set of procedures that is used to examine the nature and severity of an educationally related problem. These procedures primarily focus on variables related to developing effective educationally related interventions.
	41.313(2) Parent participation in systematic problem-solving process. Active parent participation is an integral aspect of the process and is solicited throughout.
	41.313(3) Components. At a minimum, a systematic problem-solving process includes the following components.
	a. 	Description of problem. The presenting problem or behavior of concern shall be described in objective, measurable terms that focus on alterable characteristics of the individual and the environment. The individual and environment shall be examined through systematic data collection. The presenting problem or behaviors of concern shall be defined in a problem statement that describes the degree of discrepancy between the demands of the educational setting and the individual’s performance.
	b. 	Data collection and problem analysis. A systematic, data-based process for examining all that is known about the presenting problem or behaviors of concern shall be used to identify interventions that have a high likelihood of success. Data collected on the presenting problem or behaviors of concern shall be used to plan and monitor interventions. Data collected shall be relevant to the presenting problem or behaviors of concern and shall be collected in multiple settings using multiple sources of information and multiple data collection methods. Data collection procedures shall be individually tailored, valid, and reliable, and allow for frequent and repeated measurement of intervention effectiveness.
	c. 	Intervention design and implementation. Interventions shall be designed based on the preceding analysis, the defined problem, parent input, and professional judgments about the potential effectiveness of interventions. The interventions shall be described in an intervention plan that includes goals and strategies, a progress monitoring plan, a decision-making plan for summarizing and analyzing progress monitoring data, and responsible parties. Interventions shall be implemented as developed and modified on the basis of objective data and with the agreement of the responsible parties.
	d. 	Progress monitoring. Systematic progress monitoring shall be conducted which includes regular and frequent data collection, analysis of individual performance across time, and modification of interventions as frequently as necessary based on systematic progress monitoring data.
	e. 	Evaluation of intervention effects. The effectiveness of interventions shall be evaluated through a systematic procedure in which patterns of individual performance are analyzed and summarized. Decisions regarding the effectiveness of interventions focus on comparisons with initial levels of performance.
	41.313(4) Rule of construction. A systematic problem-solving process may be used for any child suspected of being an eligible individual, and nothing in this chapter nor in Part B of the Act shall be construed to limit the applicability of a systematic problem-solving process to children suspected of having a certain type of disability.
281—41.314(256B,34CFR300) Progress monitoring and data collection.
	41.314(1) Evidence of progress in general education instruction. Each public agency shall establish standards, consistent with those the department may establish, by which the adequacy of general education instruction, including the quality and quantity of data gathered, is assessed, and whether such data are sufficient in quantity and quality to make decisions under Part B of the Act and this chapter.
	41.314(2) Progress monitoring and determining eligibility. Each public agency shall engage in progress monitoring of each individual’s progress as the department may require during the process of evaluating whether a child is an eligible individual and shall record such progress in any manner that the department may permit or require. If the AEA or LEA serving an individual imposes additional requirements for the monitoring of progress of individuals during the process of evaluation, personnel serving that individual shall comply with those additional requirements. The team determining the child’s eligibility may increase the frequency with which the child’s progress is monitored.
	41.314(3) Progress monitoring and eligible individuals. Each public agency shall engage in progress monitoring of each eligible individual’s progress as the department may require, and shall record such progress in any manner that the department may permit or require. If the AEA or LEA serving an eligible individual imposes additional requirements for the monitoring of progress of eligible individuals, personnel serving that individual shall comply with those additional requirements. An IEP team may increase the frequency with which an eligible individual’s progress is monitored.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.315 to 41.319  Reserved.
281—41.320(256B,34CFR300) Definition of individualized education program.
	41.320(1) General. As used in this chapter, the term “individualized education program” or “IEP” means a written statement for each child with a disability that is developed, reviewed, and revised in a meeting in accordance with these rules, and that must include:
	a. 	A statement of the child’s present levels of academic achievement and functional performance, including:
	(1)	How the child’s disability affects the child’s involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled children); or
	(2)	For preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities;
	b. 	A statement of measurable annual goals, including academic and functional goals designed to meet:
	(1)	The child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and
	(2)	Each of the child’s other educational needs that result from the child’s disability;
	c. 	For children with disabilities who take alternate assessments aligned to alternate academic achievement standards, a description of benchmarks or short-term objectives;
	d. 	A description of:
	(1)	How the child’s progress toward meeting the annual goals described in 41.320(1)“b” will be measured; and
	(2)	When periodic reports on the progress the child is making toward meeting the annual goals, such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards, will be provided;
	e. 	A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child:
	(1)	To advance appropriately toward attaining the annual goals;
	(2)	To be involved in and make progress in the general education curriculum in accordance with 41.320(1)“a,” and to participate in extracurricular and other nonacademic activities; and
	(3)	To be educated and participate with other children with disabilities and nondisabled children in the activities described in this rule;
	f. 	An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in 41.320(1)“e”;
	g. 	A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on state and districtwide assessments consistent with Section 612(a)(16) of the Act; and, if the IEP team determines that the child must take an alternate assessment instead of a particular regular state or districtwide assessment of student achievement, a statement of why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child; and
	h. 	The projected date for the beginning of the services and modifications described in 41.320(1)“e” and the anticipated frequency, location, and duration of those services and modifications.
	41.320(2) Transition services. Beginning not later than the first IEP to be in effect when the child turns 14, or younger if determined appropriate by the IEP team, and updated annually, thereafter, the IEP must include:
	a. 	Appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and
	b. 	The transition services, including courses of study, needed to assist the child in reaching those goals.
	41.320(3) Transfer of rights at age of majority. Beginning not later than one year before the child reaches the age of majority under state law, the IEP must include a statement that the child has been informed of the child’s rights under Part B of the Act, if any, that will transfer to the child on reaching the age of majority under rule 281—41.520(256B,34CFR300).
	41.320(4) Construction. Nothing in this rule shall be construed to require:
	a. 	That additional information be included in a child’s IEP beyond what is explicitly required in Section 614 of the Act; or
	b. 	The IEP team to include information under one component of a child’s IEP that is already contained under another component of the child’s IEP.
	41.320(5) Special considerations. The IEP, or an associated document, must contain the answers to the questions contained in subrule 41.116(4).
	41.320(6) Prohibited practices. An IEP shall not include practices that are precluded by constitution, statute, this chapter, or any other applicable law.
	41.320(7) Clearing classrooms. An IEP or a behavioral intervention plan shall not include provisions for clearing all other students out of the regular classroom in order to calm the child requiring special education or the child for whom a behavioral intervention plan has been implemented except as provided in Iowa Code section 279.51A as enacted by 2020 Iowa Acts, Senate File 2360.
If a student whose behavior caused a classroom clearance has an IEP or a behavioral intervention plan, the classroom teacher shall call for and be included in a review and potential revision of the student’s IEP or behavioral intervention plan by the student’s IEP team. The AEA, in collaboration with the school district, may, when the parent or guardian meets with the IEP team during the review or reevaluation of the student’s IEP, inform the parent or guardian of individual or family counseling services available in the area. The public agencies must provide those services if those services are necessary for a FAPE.
[ARC 8387B, IAB 12/16/09, effective 1/20/10; ARC 5329C, IAB 12/16/20, effective 1/20/21]
281—41.321(256B,34CFR300) IEP team.
	41.321(1) General. The public agency must ensure that the IEP team for each child with a disability includes the following:
	a. 	The parents of the child;
	b. 	At least one regular education teacher of the child if the child is, or may be, participating in the regular education environment;
	c. 	At least one special education teacher of the child or, where appropriate, at least one special education provider of the child;
	d. 	A representative of the public agency who:
	(1)	Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
	(2)	Is knowledgeable about the general education curriculum; and
	(3)	Is knowledgeable about the availability of resources of the public agency.
	e. 	An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in 41.321(1)“b” to “f”;
	f. 	At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
	g. 	Whenever appropriate, the child with a disability.
	41.321(2) Transition services participants.
	a. 	In accordance with 41.321(1)“g,” the public agency must invite a child with a disability to attend the child’s IEP team meeting if a purpose of the meeting will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals under subrule 41.320(2).
	b. 	If the child does not attend the IEP team meeting, the public agency must take other steps to ensure that the child’s preferences and interests are considered.
	c. 	To the extent appropriate, with the consent of the parents or a child who has reached the age of majority, in implementing the requirements of 41.321(2)“a,” the public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.
	41.321(3) Determination of knowledge and special expertise. The determination of the knowledge or special expertise of any individual described in 41.321(1)“f” must be made by the party (parents or public agency) who invited the individual to be a member of the IEP team.
	41.321(4) Designating a public agency representative. A public agency may designate a public agency member of the IEP team to also serve as the agency representative, if the criteria in 41.321(1)“d” are satisfied.
	41.321(5) IEP team attendance.
	a. 	A member of the IEP team described in 41.321(1)“b” to “e” is not required to attend an IEP team meeting, in whole or in part, if the parent of a child with a disability and the public agency agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.
	b. 	A member of the IEP team described in 41.321(5)“a” may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if:
	(1)	The parent, in writing, and the public agency consent to the excusal; and
	(2)	The member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.
	41.321(6) Initial IEP team meeting for child under Part C. In the case of a child who was previously served under Part C of the Act, an invitation to the initial IEP team meeting must, at the request of the parent, be sent to the Part C service coordinator or other representatives of the Part C system to assist with the smooth transition of services.
281—41.322(256B,34CFR300) Parent participation.
	41.322(1) Public agency responsibility—general. Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including:
	a. 	Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
	b. 	Scheduling the meeting at a mutually agreed-upon time and place.
	41.322(2) Information provided to parents.
	a. 	The notice required under 41.322(1)“a” must:
	(1)	Indicate the purpose, time, and location of the meeting and who will be in attendance (name and position); and
	(2)	Inform the parents of the provisions in 41.321(1)“f” and 41.321(3) relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child and subrule 41.321(6) relating to the participation of the Part C service coordinator or other representatives of the Part C system at the initial IEP team meeting for a child previously served under Part C of the Act.
	b. 	For a child with a disability, beginning not later than the first IEP to be in effect when the child turns 14, or younger if determined appropriate by the IEP team, the notice also must:
	(1)	Indicate that a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the child, in accordance with subrule 41.320(2), and that the agency will invite the student; and
	(2)	Identify any other agency that will be invited to send a representative.
	41.322(3) Other methods to ensure parent participation. If neither parent can attend an IEP team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls, consistent with rule 281—41.328(256B,34CFR300) related to alternative means of meeting participation.
	41.322(4) Conducting an IEP team meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed-upon time and place, including:
	a. 	Detailed records of telephone calls made or attempted and the results of those calls;
	b. 	Copies of correspondence sent to the parents and any responses received; and
	c. 	Detailed records of visits made to the parent’s home or place of employment and the results of those visits.
	41.322(5) Use of interpreters or other action, as appropriate. The public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.
	41.322(6) Parent copy of child’s IEP. The public agency must give the parent a copy of the child’s IEP at no cost to the parent.
	41.322(7) Rule of construction: “final” versus “draft” IEPs. An agency shall not present a completed and finalized IEP to parents before there has been a full discussion with the parents regarding the eligible individual’s need for special education and related services and the services the agency will provide to the individual. An agency may come prepared with evaluation findings, proposed statements of present levels of educational performance, proposed recommendations regarding annual goals or instructional objectives, and proposals concerning the nature of special education and related services to be provided. The agency shall inform the parents at the outset of the meeting that the proposals are only recommendations for review and discussion with the parents.
281—41.323(256B,34CFR300) When IEPs must be in effect.
	41.323(1) General. An IEP must be in effect before special education and related services are provided to eligible individuals. At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in rule 281—41.320(256B,34CFR300).
	41.323(2) Reserved.
	41.323(3) Initial IEPs; provision of services. Each public agency must ensure that:
	a. 	A meeting to develop an IEP for a child is conducted within 30 days of a determination that the child needs special education and related services; and
	b. 	As soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child’s IEP.
	41.323(4) Accessibility of child’s IEP to teachers and others. Each public agency must ensure that:
	a. 	The child’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and
	b. 	Each teacher and provider described in 41.323(4)“a” is informed of:
	(1)	His or her specific responsibilities related to implementing the child’s IEP; and
	(2)	The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
	41.323(5) IEPs for children who transfer public agencies in the same state. If a child with a disability who had an IEP that was in effect in a previous public agency in this state transfers to a new public agency in this state and enrolls in a new school within the same school year, the new public agency, in consultation with the parents, must provide FAPE to the child including services comparable to those described in the child’s IEP from the previous public agency until the new public agency either:
	a. 	Adopts the child’s IEP from the previous public agency; or
	b. 	Develops, adopts, and implements a new IEP that meets the applicable requirements in these rules.
	41.323(6) IEPs for children who transfer from another state. If a child with a disability who had an IEP that was in effect in a previous public agency in another state transfers to a public agency in this state and enrolls in a new school within the same school year, the receiving public agency, in consultation with the parents, must provide the child with FAPE, including services comparable to those described in the child’s IEP from the previous public agency, until the receiving public agency:
	a. 	Conducts an evaluation pursuant to these rules if determined to be necessary by the receiving public agency; and
	b. 	Develops, adopts, and implements a new IEP, if appropriate, that meets the applicable requirements in these rules.
	41.323(7) Transmittal of records. To facilitate the transition for a child described in subrules 41.323(5) and 41.323(6):
	a. 	The receiving public agency in which the child enrolls must take all reasonable steps to promptly obtain the child’s records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child, from the previous public agency in which the child was enrolled, pursuant to 34 CFR Section 99.31(a)(2); and
	b. 	The previous public agency in which the child was enrolled must take all reasonable steps to promptly respond to the request from the receiving public agency.
	41.323(8) Other. It is expected that an IEP of an eligible individual will be implemented immediately after an IEP team meeting. Exceptions to this would be when the meeting occurs during the summer or vacation period, unless the child requires services during that period, or where there are circumstances requiring a short delay (e.g., making transportation arrangements); however, there can be no undue delay in providing special education and related services to an eligible individual.
281—41.324(256B,34CFR300) Development, review, and revision of IEP.
	41.324(1) Development of IEP.
	a. 	General. In developing each child’s IEP, the IEP team must consider:
	(1)	The strengths of the child;
	(2)	The concerns of the parents for enhancing the education of their child;
	(3)	The results of the initial or most recent evaluation of the child; and
	(4)	The academic, developmental, and functional needs of the child.
	b. 	Consideration of special factors. The IEP team must:
	(1)	In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;
	(2)	In the case of a child with limited English proficiency, consider the language needs of the child as those needs relate to the child’s IEP;
	(3)	In the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media, including an evaluation of the child’s future needs for instruction in Braille or the use of Braille, that instruction in Braille or the use of Braille is not appropriate for the child;
	(4)	Consider the communication needs of the child and, in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode; and
	(5)	Consider whether the child needs assistive technology devices and services, including accessible instructional materials.
	c. 	Requirement with respect to regular education teacher. A regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in the development of the IEP of the child, including the determination of:
	(1)	Appropriate positive behavioral interventions and supports and other strategies for the child; and
	(2)	Supplementary aids and services, program modifications, and support for school personnel consistent with 41.320(1)“e.”
	d. 	Agreement.
	(1)	In making changes to a child’s IEP after the annual IEP team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP team meeting for the purposes of making those changes and instead may develop a written document to amend or modify the child’s current IEP.
	(2)	If changes are made to the child’s IEP in accordance with 41.324(1)“d”(1), the public agency must ensure that the child’s IEP team is informed of those changes.
	(3)	A public agency may only agree to make changes pursuant to 41.324(1)“d”(1) concerning resources the public agency has the authority to commit.
	e. 	Consolidation of IEP team meetings. To the extent possible, the public agency must encourage the consolidation of reevaluation meetings for the child and other IEP team meetings for the child.
	f. 	Amendments. Changes to the IEP may be made either by the entire IEP team at an IEP team meeting or as provided in 41.324(1)“d” by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent must be provided with a revised copy of the IEP with the amendments incorporated.
	41.324(2) Review and revision of IEPs.
	a. 	General. Each public agency must ensure that, subject to 41.324(2)“b” and “c,” the IEP team:
	(1)	Reviews the child’s IEP periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved; and
	(2)	Revises the IEP, as appropriate, to address the following:
	1.	Any lack of expected progress toward the annual goals described in 41.320(1)“b,” and in the general education curriculum, if appropriate;
	2.	The results of any reevaluation conducted under rule 281—41.303(256B,34CFR300);
	3.	Information about the child provided to or by the parents, as described in 41.305(1)“b”;
	4.	The child’s anticipated needs; or
	5.	Other matters.
	b. 	Consideration of special factors. In conducting a review of the child’s IEP, the IEP team must consider the special factors described in 41.324(1)“b.”
	c. 	Requirement with respect to regular education teacher. A regular education teacher of the child, as a member of the IEP team, must, consistent with 41.324(1)“c,” participate in the review and revision of the IEP of the child.
	41.324(3) Failure to meet transition objectives.
	a. 	Participating agency failure. If a participating agency, other than the public agency, fails to provide the transition services described in the IEP in accordance with subrule 41.320(2), the public agency must reconvene the IEP team to identify alternative strategies to meet the transition objectives for the child set out in the IEP.
	b. 	Construction. Nothing in this chapter relieves any participating agency, including a state vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to children with disabilities who meet the eligibility criteria of that agency.
	41.324(4) Children with disabilities in adult prisons.
	a. 	Requirements that do not apply. The following requirements do not apply to children with disabilities who are convicted as adults under state law and incarcerated in adult prisons:
	(1)	The requirements contained in Section 612(a)(16) of the Act and 41.320(1)“g” relating to participation of children with disabilities in general assessments.
	(2)	The requirements in subrule 41.320(2) relating to transition planning and transition services do not apply with respect to the children whose eligibility under Part B of the Act will end because of their age before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.
	b. 	Modifications of IEP or placement.
	(1)	Subject to 41.324(4)“b”(2), the IEP team of a child with a disability who is convicted as an adult under state law and incarcerated in an adult prison may modify the child’s IEP or placement if the state has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.
	(2)	The requirements in rules 281—41.320(256B,34CFR300) relating to IEPs and 281—41.114(256B,34CFR300) relating to LRE do not apply with respect to the modifications described in 41.324(4)“b”(1).
	41.324(5) Interim IEP. An IEP must be in effect before special education and related services are provided to an eligible individual. This does not preclude the development of an interim IEP which meets all the requirements of rule 281—41.320(256B,34CFR300) when the IEP team determines that it is necessary to temporarily provide special education and related services to an eligible individual as part of the evaluation process, before the IEP is finalized, to aid in determining the appropriate services for the individual. An interim IEP may also be developed when an eligible individual moves from one LEA to another and a copy of the current IEP is not available, or either the LEA or the parent believes that the current IEP is not appropriate or that additional information is needed before a final decision can be made regarding the specific special education and related services that are needed. IEP teams cannot use interim IEPs to circumvent the requirements of this division. It is essential that the temporary provision of service not become the final special education for the individual before the IEP is finalized. In order to ensure that this does not happen, IEP teams shall take the following actions:
	a. 	Specific conditions and timelines. Develop an interim IEP for the individual that sets out the specific conditions and timelines for the temporary service. An interim IEP shall not be in place for more than 30 school days.
	b. 	Parent agreement and involvement. Ensure that the parents agree to the interim service before it is carried out and that they are involved throughout the process of developing, reviewing, and revising the individual’s IEP.
	c. 	Complete evaluation and make judgments. Set a specific timeline for completing the evaluation and making judgments about the appropriate services for the individual.
	d. 	Conduct meeting. Conduct an IEP meeting at the end of the trial period in order to finalize the individual’s IEP.
	41.324(6) Rules of construction—instruction in Braille. For an eligible individual for whom instruction in Braille is determined to be appropriate, as provided in 41.324(1)“b”(3), that eligible individual is entitled to instruction in Braille reading and writing that is sufficient to enable the individual to communicate with the same level of proficiency as an individual of otherwise comparable ability at the same grade level. Braille reading and writing instruction may only be provided by a teacher licensed at the appropriate grade level to teach individuals with visual impairments.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.325(256B,34CFR300) Private school placements by public agencies.
	41.325(1) Developing IEPs.
	a. 	Before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency must initiate and conduct a meeting to develop an IEP for the child in accordance with these rules.
	b. 	The agency must ensure that a representative of the private school or facility attends the meeting. If the representative cannot attend, the agency must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls.
	41.325(2) Reviewing and revising IEPs.
	a. 	After a child with a disability enters a private school or facility, any meetings to review and revise the child’s IEP may be initiated and conducted by the private school or facility at the discretion of the public agency.
	b. 	If the private school or facility initiates and conducts these meetings, the public agency must ensure that the parents and an agency representative are involved in any decision about the child’s IEP and agree to any proposed changes in the IEP before those changes are implemented.
	41.325(3) Responsibility. Even if a private school or facility implements a child’s IEP, responsibility for compliance with this chapter remains with the public agency and the SEA.
281—41.326(256B,34CFR300) Other rules concerning IEPs.
	41.326(1) Children from birth to the age of three. A fully developed IFSP shall be considered to have met the requirements of an IEP for an eligible individual younger than the age of three.
	41.326(2) Support services only. An IEP that satisfies the requirements of this chapter shall be developed for eligible individuals who require only special education support services. The special education support service specialist with knowledge in the area of need shall have primary responsibility for recommending the need for support service, the type or model of service to be provided, and the amount of service to be provided; however, the determination that an individual is eligible for special education shall be based on these rules. Attendance at IEP meetings for students shall be determined in accordance with rule 281—41.325(256B,34CFR300).
281—41.327(256B,34CFR300) Educational placements. Consistent with subrule 41.501(3), each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of the child.
281—41.328(256B,34CFR300) Alternative means of meeting participation. When conducting IEP team meetings and placement meetings under this chapter and carrying out administrative matters under Section 615 of the Act, such as scheduling, exchange of witness lists, and status conferences, the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation, such as video conferences and conference calls.
281—41.329 to 41.399  Reserved.
DIVISION VI
ADDITIONAL RULES RELATED TO AEAs, LEAs, AND SPECIAL EDUCATION
281—41.400(256B,34CFR300) Shared responsibility.
	41.400(1) General. It is the responsibility of each eligible individual’s resident LEA to provide or make provision for appropriate special education and related services to meet the requirements of state and federal statutes and rules. This responsibility may be met by one or more of the following: by each LEA acting for itself, by action of two or more LEAs through the establishment and maintenance of joint programs, by the AEA, by contract for services from approved public or private agencies offering the appropriate special education and related services, or by any combination of these options. The AEA shall support and assist LEAs in meeting their responsibilities for providing appropriate special education and related services. The requirements of Part B of the Act and of this chapter are binding on each public agency that has direct or delegated authority to provide special education and related services regardless of whether that agency is receiving funds under Part B of the Act.
	41.400(2) Shared responsibility between general education and special education. General education and special education personnel share responsibility in providing appropriate educational programs for eligible individuals and in providing intervention and prevention services to individuals who are experiencing learning or adjustment problems.
281—41.401(256B,34CFR300) Licensure (certification). Special education personnel shall meet the board of educational examiners’ licensure (certification) and endorsement or recognition requirements for the position for which they are employed. In addition, personnel providing special education and related services who do not hold board of educational examiners’ licensure (certification) or other recognition required by its board, and who, by the nature of their work, are required to hold a professional or occupational license, certificate or permit in order to practice or perform the particular duties involved in this state shall be required to hold a license, certificate, or permit.
281—41.402(256B,273,34CFR300) Authorized personnel. An agency is authorized to employ the following types of special education personnel, as appropriate to the special education and related services provided.
	41.402(1) Director of special education. The director shall be responsible for the implementation of special education for eligible individuals pursuant to Iowa Code section 273.5 and these rules. The director’s powers and duties shall include:
	a. 	Properly identifying children requiring special education,
	b. 	Ensuring that each child requiring special education in the area receives an appropriate special education program or service,
	c. 	Assigning appropriate weights for each child requiring special education programs or services as provided in Iowa Code section 256B.9,
	d. 	Supervising special education support personnel,
	e. 	Providing each school district within the area served and the department with a special education weighted enrollment count, including the additional enrollment because of special education by the date specified in the Iowa Code,
	f. 	Submitting to the department special education instructional and support program plans and applications, subject to the criteria listed in Iowa Code chapters 256B and 273, for approval by the deadline specified in the Iowa Code,
	g. 	Coordinating the special education program within the area served, and
	h. 	Reporting any violation of the Act or this chapter to the department for appropriate action.
	41.402(2) Special education instructional personnel. Special education instructional personnel serve as teachers or instructional assistants at the preschool, elementary or secondary levels for eligible individuals.
	41.402(3) Special education support personnel. The following positions are those of special education support personnel who provide special education and related services as stated in each definition. These personnel work under the direction of the director and may provide identification, evaluation, remediation, consultation, systematic progress monitoring, continuing education and referral services in accordance with appropriate licensure (certification) and endorsement or approval, or statement of professional recognition. They may also engage in data collection, applied research and program evaluation.
“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 with deafness or hearing impairments.
“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.
“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.
“Others (other special education support personnel)” may be employed as approved by the department and board of educational examiners.
281—41.403(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.
“Para-educator” is a licensed educational assistant as defined in Iowa Code section 272.12.
“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 with visual impairment including blindness and performs other duties as assigned by the supervising teacher of individuals with visual impairments.
“Others” as approved by the department, such as educational assistants described in the Iowa Administrative Code at 281—subrule 12.4(9).
281—41.404(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.  and g.  Rescinded IAB 10/11/17, effective 11/15/17.
	h. 	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.  and e.  Rescinded IAB 10/11/17, effective 11/15/17.
	f. 	Procedures for providing continuing education opportunities.
	g. 	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.
	h. 	Procedures for ensuring procedural safeguards for children with disabilities and their parents.
	i. 	Procedures to ensure the participation of eligible individuals in districtwide assessment programs.
	41.404(3) Medication administration. Rescinded IAB 10/11/17, effective 11/15/17.
	41.404(4) Rule of construction. Any public agency is required to 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.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.405(256B) Special health services. Rescinded ARC 3387C, IAB 10/11/17, effective 11/15/17.
281—41.406(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 shall develop written policies pertinent to the provision of special education and related services and shall make such policies available to the department upon request. At a minimum, such policies shall include those identified in subrule 41.404(1).
	41.406(2) Procedures. Each LEA shall develop written procedures pertinent to the provision of special education and related services and shall make such procedures available to the department upon request. At a minimum, such procedures shall include those identified in subrule 41.404(2).
	41.406(3) Plans. Districtwide plans required by the department or federal programs and regulations shall 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.
281—41.407(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 shall develop written policies pertinent to the provision of special education and related services and shall make such policies available to the department upon request. At a minimum, such policies shall include those identified in 41.404(1)“a” to “g” 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 shall develop written procedures pertinent to the provision of special education and related services, and shall make such procedures available to the department upon request. At a minimum, such procedures shall 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 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. A written report describing the monitoring activities, findings, corrective action plans, follow-up activities, and timelines shall be developed and made available for review by the department upon request. Monitoring of compliance activities shall be as directed by the department.
	41.407(4) Educate and inform. The AEA shall 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 shall provide the department with a description of how the AEA identification process and LEA delivery systems for instructional services will be coordinated.
281—41.408(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, shall address the needs of eligible individuals aged 3 to 21, and shall 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 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 used to develop the system, including the composition of the group responsible for its development.
	(5)	A description of the process that will be used to evaluate the effectiveness of the system.
	(6)	A description of how the delivery system will meet the targets identified in the state’s performance plan, described in this chapter.
	(7)	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 shall 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 shall be selected by the director.
	(2)	The director shall verify that the delivery system is in compliance 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 shall 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 shall describe the comment received from the general public and how the comment was considered.
	(4)	The LEA board shall 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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.409(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.
281—41.410(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.
281—41.411(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.
281—41.412(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 Iowa Administrative Code 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 Iowa Administrative Code 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 Iowa Administrative Code 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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10; ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.413(256,256B,34CFR300) Additional rules relating to accredited nonpublic schools.
	41.413(1) State and local funds under Iowa Code section 256.12. 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 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).
281—41.414 to 41.499  Reserved.
DIVISION VII
PROCEDURAL SAFEGUARDS
281—41.500(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).
281—41.501(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 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 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 41.501(3)“a,” the public agency must use procedures consistent with the procedures described in 41.322(1) to 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.
281—41.502(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 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 41.502(5)“a,” a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
	c. 	Each AEA shall establish policy and procedures for implementing this rule.
281—41.503(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 41.503(3)“b”(1) and (2) have been met.
281—41.504(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 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 must 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 shall be given along with the procedural safeguards notice and shall not be given in place of the procedural safeguards notice.
281—41.505(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.
281—41.506(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 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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10; ARC 9376B, IAB 2/23/11, effective 3/30/11]
281—41.507(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.”
281—41.508(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 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 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 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.
281—41.509(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.
281—41.510(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 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 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.
281—41.511(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.
281—41.512(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 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 41.512(1)“d” and “e” provided at no cost to parents.
281—41.513(256B,34CFR300) Hearing decisions.
	41.513(1) Decision of administrative law judge on the provision of FAPE.
	a. 	Subject to 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 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.
281—41.514(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.
281—41.515(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.
281—41.516(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.
281—41.517(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 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 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 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.
281—41.518(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.
[ARC 9376B, IAB 2/23/11, effective 3/30/11]
281—41.519(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 41.519(4)“b”(1) and 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 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 shall 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 shall 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. The department shall provide assistance to, and shall monitor, surrogate parent programs.
281—41.520(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 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.
281—41.521 to 41.529  Reserved.
281—41.530(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 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 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 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 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.”
281—41.531(256B,34CFR300) Determination of setting. The child’s IEP team determines the interim alternative educational setting for services under 41.530(3), 41.530(4)“e,” and 41.530(7).
281—41.532(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 41.532(1) and 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 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 10 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 7 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).
281—41.533(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.
[ARC 9376B, IAB 2/23/11, effective 3/30/11]
281—41.534(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 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.
281—41.535(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).
281—41.536(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 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?
281—41.537(256B,34CFR300) State enforcement mechanisms. Notwithstanding 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.
281—41.538 to 41.599  Reserved.
DIVISION VIII
MONITORING, ENFORCEMENT, CONFIDENTIALITY, AND PROGRAM INFORMATION
281—41.600(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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.601(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.
281—41.602(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 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 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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.603(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 41.603(2)“a” or “b,” the state shall provide reasonable notice of its determination. For determinations made under 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).
281—41.604(256B,34CFR300) Enforcement.
	41.604(1) Needs assistance. If the state determines for two consecutive years that an LEA or AEA needs assistance under 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 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.
[ARC 9375B, IAB 2/23/11, effective 3/30/11]
281—41.605(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).
281—41.606(256B,34CFR300) Public attention. Any LEA or AEA that has received notice under 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).
281—41.607  Reserved.
281—41.608(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.
281—41.609(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.
281—41.610(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).
281—41.611(256B,34CFR300) Definitions. The following definitions apply to rules 281—41.611(256B,34CFR300) to 281—41.625(256B,34CFR300).
	41.611(1) Destruction. “Destruction” means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.
	41.611(2) Education records. “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)).
	41.611(3) Participating agency. “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.
281—41.612(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.
281—41.613(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, or any hearing pursuant to rule 281—41.507(256B,34CFR300) or rules 281—41.530(256B,34CFR300) to 281—41.532(256B,34CFR300), or 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.
281—41.614(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.
281—41.615(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.
281—41.616(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.
281—41.617(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.
281—41.618(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).
281—41.619(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.
281—41.620(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.
281—41.621(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.
281—41.622(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 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.
281—41.623(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.
281—41.624(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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.625(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.
281—41.626(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.
281—41.627 to 41.639  Reserved.
281—41.640(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.
281—41.641(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.”
281—41.642(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.
281—41.643(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.
281—41.644(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).
281—41.645(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.
281—41.646(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 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.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.647(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.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.648 to 41.699  Reserved.
DIVISION IX
ALLOCATIONS BY THE SECRETARY TO THE STATE
281—41.700 to 41.703  Reserved.
281—41.704(256B,34CFR300) State-level activities. The state may engage in such activities permitted by 34 CFR Section 300.704, including the establishment of an LEA high-cost fund under 34 CFR Section 300.704(c).
281—41.705(256B,34CFR300) Subgrants to AEAs. The state shall make subgrants to AEAs in a manner consistent with 34 CFR Section 300.705.
281—41.706 to 41.799  Reserved.
DIVISION X
PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES
281—41.800(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.
281—41.801 and 41.802  Reserved.
281—41.803(256B,34CFR300) Definition of state. As used in this division, “state” means each of the 50 states, the District of Columbia, and the Commonwealth of Puerto Rico.
281—41.804(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.
281—41.805  Reserved.
281—41.806(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.
281—41.807 to 41.811  Reserved.
281—41.812(256B,34CFR300) Reservation for state activities. The state may reserve amounts consistent with 34 CFR Section 300.812 for administration and other state-level activities.
281—41.813(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.
281—41.814(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.
281—41.815(256B,34CFR300) Subgrants to AEAs. The state shall make subgrants to AEAs consistent with 34 CFR Section 300.815.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.816(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.
281—41.817(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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.818(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.
281—41.819 to 41.899  Reserved.
DIVISION XI
ADDITIONAL RULES CONCERNING FINANCE AND PUBLIC ACCOUNTABILITY
281—41.900(256B,282) Scope. In addition to other rules in this chapter, rules 281—41.901(256B,282) to 281—41.908(256B,282) concern finance and accountability for special education and related services.
281—41.901(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.
281—41.902(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.
281—41.903(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 shall 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.
281—41.904(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.
281—41.905(256B,273) Additional special education. Additional special education made available through the provisions of Iowa Code section 273.3 shall be furnished in a manner consistent with these rules.
281—41.906(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, shall be funded through procedures as provided for special education support services. Approved extended school year instructional programs shall be funded through procedures as provided for special education instructional programs.
281—41.907(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 which 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 41.907(5) and 41.907(6). 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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10]
281—41.908(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 shall be construed to create a right of action against any individual.
281—41.909 to 41.999  Reserved.
DIVISION XII
PRACTICE BEFORE MEDIATORS AND ADMINISTRATIVE LAW JUDGES
281—41.1000(17A,256B,290) Applicability. In addition to rules in Division VII, this division applies to matters under this chapter brought before administrative law judges or mediators.
281—41.1001(17A,256B,290) Definitions. As used in this chapter:
	41.1001(1) Administrative law judge. “Administrative law judge” means an individual designated by the director of education from the list of approved administrative law judges to hear the presentation of evidence and, if appropriate, oral arguments in the hearing.
	41.1001(2) Appeal. In Iowa practice and for purposes of these rules, an “appeal” is synonymous with a “due process complaint.”
	41.1001(3) Appellant. “Appellant” means a party that files a due process complaint under this chapter.
	41.1001(4) Appellee. “Appellee” means a party that opposes the due process complaint filed by the appellant.
	41.1001(5) Party. “Party” means the appellant, appellee and third parties named or admitted as a party.
281—41.1002(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 the requirements of 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 shall identify the student, LEA and AEA and set forth the facts, the issues of concern, or the reasons for the conference. The letter shall 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 shall contact all pertinent parties to determine whether participation is desired. A checklist shall be sent by the department to the LEA or AEA to receive information about the student.
	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 LEA or the AEA shall submit the checklist to the department and shall provide a copy to the parent within ten business days after receiving the request.
	e. 	The student’s complete school record shall be made available for review by the parent prior to the conference, if requested in writing at least ten calendar days before the conference.
	f. 	The individual’s complete school record shall 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.
	g. 	A mediator provided by the department shall preside over the conference.
	h. 	If an agreement is reached, a document meeting the requirements of 41.506(2)“f” shall be executed.
	i. 	If agreement is not reached at the conference, all parties shall 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.
[ARC 8387B, IAB 12/16/09, effective 1/20/10; ARC 9376B, IAB 2/23/11, effective 3/30/11; ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.1003(17A,256B) Procedures concerning due process complaints.
	41.1003(1) AEA as a party. The appropriate AEA serving the individual shall be deemed to be a party with the LEA whether or not specifically named by the parent or agency filing the appeal.
	41.1003(2) Individual served by contract with another agency. In instances where the individual is served through a contract with another agency, the school district of residence of the individual shall be deemed a party.
	41.1003(3) Notice. The director of education or designee shall, within five business days after the receipt of the appeal, notify the proper officials with the LEA and the AEA of the filing of the due process complaint. The department-assigned administrative law judge may then request that the LEA and AEA transmit all records relevant to the due process complaint. The officials shall, within 20 business days after receipt of the request from the administrative law judge, file with the administrative law judge all records relevant to the decision appealed.
	41.1003(4) Free or low-cost legal services. The department shall 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 initiates a hearing.
	41.1003(5) Written notice. The director of education or designee shall provide notice in writing delivered by fax, personal service as in civil actions, or by certified mail, return receipt requested, to all parties at least ten calendar days prior to the hearing unless the ten-day period is waived by both parties. Such notice shall include the time and the place where the matter of appeal shall be heard. A copy of the appeal hearing rules shall be included with the notice.
	41.1003(6) Mediation conference. The department shall contact the parties to determine whether they wish to participate in a mediation conference under rule 281—41.506(256B,34CFR300). Discussions that occur during the mediation process 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 in mediation. Prior to the start of the mediation, the parties to the mediation conference and the mediator will be required to sign an Agreement to Mediate form containing a confidentiality provision.
	41.1003(7) Dismissal. The appellant may make a request for dismissal by the administrative law judge at any time. A request or motion to dismiss made by the appellee shall be granted upon a determination by the administrative law judge that any of the following circumstances apply:
	a. 	The appeal relates to an issue that does not reasonably fall under any of the appealable issues of identification, evaluation, placement, or the provision of a free appropriate public education.
	b. 	The issue(s) raised is moot.
	c. 	The individual does not have standing to file a due process complaint under Part B of the Act and this chapter.
	d. 	The relief sought by the appellant is beyond the scope and authority of the administrative law judge to provide.
	e. 	Circumstances are such that no case or controversy exists between the parties.
	f. 	An appeal may be dismissed administratively when an appeal has been in continued status for more than one school year. Prior to an administrative dismissal, the administrative law judge shall notify the appellant at the last known address and give the appellant an opportunity to give good cause as to why an extended continuance shall be granted. An administrative dismissal issued by the administrative law judge shall be without prejudice to the appellant.
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.1004(17A,256B) Participants in the hearing.
	41.1004(1) Conducting hearing. The administrative law judge shall conduct the hearing.
	a. 	Any person serving or designated to serve as an administrative law judge is subject to disqualification for bias, prejudice, interest, or any other cause for which a judge is or may be disqualified.
	b. 	Any party may timely request the disqualification of an administrative law judge after receipt of notice indicating that the person will preside or upon discovering facts establishing grounds for disqualification whichever is later.
	c. 	A person whose disqualification is requested shall determine whether to grant the request, stating facts and reasons for the determination.
	d. 	If another administrative law judge is required because the appointed administrative law judge is disqualified or becomes unavailable for any other reason, the director of education shall appoint a substitute administrative law judge from the list of other qualified administrative law judges.
	41.1004(2) Counsel. Any party to a hearing has a right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of individuals with disabilities.
	41.1004(3) Opportunity to be heard—appellant. The appellant or representative shall have the opportunity to be heard.
	41.1004(4) Opportunity to be heard—appellee. The appellee or representative shall have the opportunity to be heard.
	41.1004(5) Opportunity to be heard—director. The director or designee shall have the opportunity to be heard.
	41.1004(6) Opportunity to be heard—third party. A person or representative who was neither the appellant nor appellee, but was a party in the original proceeding, may be heard at the discretion of the administrative law judge.
281—41.1005(17A,256B) Convening the hearing.
	41.1005(1) Announcements and inquiries by administrative law judge. At the established time, the administrative law judge shall announce the name and nature of the case and inquire whether the respective parties or their representatives are present.
	41.1005(2) Proceeding with the hearing. When it is determined that parties or their representatives are present, or that absent parties have been properly notified, the hearing may proceed. When any absent party has been properly notified, the means of notification shall be entered into the record. When notice to an absent party has been sent by certified mail, return receipt requested, the return receipt shall be placed in the record. If the notice was in another manner, sufficient details of the time and manner of notice shall be entered into the record. If it is not determined whether absent parties have been properly notified, the proceedings may be recessed at the discretion of the administrative law judge.
	41.1005(3) Types of hearing. The administrative law judge shall establish with the parties that the hearing shall be conducted as one of three types:
	a. 	A hearing based on the stipulated record.
	b. 	An evidentiary hearing.
	c. 	A mixed evidentiary and stipulated record hearing.
	41.1005(4) Evidentiary hearing scheduled. An evidentiary hearing shall be held unless both parties agree to a hearing based upon the stipulated record or a mixed evidentiary and stipulated record hearing.
	41.1005(5) Educational record part of hearing. The educational record submitted to the department by the educational agency shall, subject to timely objection by the parties, become part of the record of the hearing.
281—41.1006(17A,256B) Stipulated record hearing.
	41.1006(1) Record hearing is nonevidentiary. A hearing based on the stipulated record is nonevidentiary in nature. No witnesses shall be heard nor evidence received. The controversy shall be decided on the basis of the record certified by the proper official and the arguments presented on behalf of the respective parties. The parties shall be so reminded by the administrative law judge at the outset of the proceeding.
	41.1006(2) Materials to illustrate an argument. Materials such as charts and maps may be used to illustrate an argument, but may not be used as new evidence to prove a point in controversy.
	41.1006(3) One spokesperson per party. Unless the administrative law judge determines otherwise, each party shall have one spokesperson.
	41.1006(4) Arguments and rebuttal. The appellant shall present argument first. The appellee then presents argument and rebuttal of the appellant’s argument. A third party, at the discretion of the administrative law judge, may be allowed to make remarks. The appellant may then rebut the preceding arguments but may not introduce new arguments.
	41.1006(5) Time to present argument. Appellant and appellee shall have equal time to present their arguments and the appellant’s total time shall not be increased by the right of rebuttal. The administrative law judge shall set the time limit for argument.
	41.1006(6) Written briefs. Any party may submit written briefs. Written briefs by a person who is not a party may be accepted at the discretion of the administrative law judge. A brief shall provide legal authority for an argument, but shall not be considered as evidence. Copies of written briefs shall be delivered to all parties and, if desired, each party may submit reply briefs at the conclusion of the hearing or at a mutually agreeable time. A final decision shall be reached and a copy of the decision shall be mailed to the parties not later than 45 calendar days after the receipt of the request for the hearing unless the administrative law judge granted an extension of time beyond the 45 calendar days. The time for filing briefs may extend the time for final decision.
281—41.1007(17A,256B) Evidentiary hearing.
	41.1007(1) Testimony and other evidence. An evidentiary hearing provides for the testimony of witnesses, introduction of records, documents, exhibits or objects.
	41.1007(2) Appellant statement. The appellant may begin by giving a short opening statement of a general nature, which may include the basis for the appeal, the type and nature of the evidence to be introduced and the conclusions the appellant believes the evidence shall substantiate.
	41.1007(3) Appellee statement. The appellee may present an opening statement of a general nature and may discuss the type and nature of evidence to be introduced and the conclusions the appellee believes the evidence shall substantiate.
	41.1007(4) Third-party statement. With the permission of the administrative law judge, a third party may make an opening statement of a general nature.
	41.1007(5) Witness testimony and other evidence. The appellant may then call witnesses and present other evidence.
	41.1007(6) Witness under oath. Each witness shall be administered an oath by the administrative law judge. The oath may be in the following form: “I do solemnly swear or affirm that the testimony or evidence which I am about to give in the proceeding now in hearing shall be the truth, the whole truth and nothing but the truth.”
	41.1007(7) Cross-examination by appellee. The appellee may cross-examine all witnesses and may examine and question all other evidence.
	41.1007(8) Witness testimony and other evidence. Upon conclusion of the presentation of evidence by the appellant, the appellee may call witnesses and present other evidence. The appellant may cross-examine all witnesses and may examine and question all other evidence.
	41.1007(9) Questions by administrative law judge. The administrative law judge may address questions to each witness at the conclusion of questioning by the appellant and the appellee. Said questioning shall be solely to clarify the record or witness testimony and shall be limited to the issues identified by the parties.
	41.1007(10) Rebuttal witnesses and additional evidence. At the conclusion of the initial presentation of evidence and at the discretion of the administrative law judge, either party may be permitted to present rebuttal witnesses and additional evidence of matters previously placed in evidence. No new matters of evidence may be raised during this period of rebuttal.
	41.1007(11) Appellant final argument. The appellant may make a final argument, not to exceed a length of time established by the administrative law judge, in which the evidence presented may be reviewed, the conclusions which the appellant believes most logically follow from the evidence may be outlined and a recommendation of action may be made to the administrative law judge.
	41.1007(12) Appellee final argument. The appellee may make a final argument for a period of time not to exceed that granted to the appellant in which the evidence presented may be reviewed, the conclusions which the appellee believes most logically follow from the evidence may be outlined and a recommendation of action may be made to the administrative law judge.
	41.1007(13) Third-party final argument. At the discretion of the administrative law judge, a third party directly involved in the original proceeding may make a final argument.
	41.1007(14) Rebuttal of final argument. At the discretion of the administrative law judge, either side may be given an opportunity to rebut the other’s final argument. No new arguments may be raised during rebuttal.
	41.1007(15) Written briefs. Any party may submit written briefs. Written briefs by a person who is not a party may be accepted at the discretion of the administrative law judge. A brief shall provide legal authority for an argument, but shall not be considered as evidence. Copies of written briefs shall be delivered to all parties and, if desired, each party may submit reply briefs at the conclusion of the hearing or at a mutually agreeable time. A final decision shall be reached and a copy of the decision shall be mailed to the parties within the time period provided by 41.515(1), unless the administrative law judge granted an extension of time or continuance pursuant to 41.515(3). The time for filing briefs may be a ground to extend the time for final decision.
281—41.1008(17A,256B) Mixed evidentiary and stipulated record hearing.
	41.1008(1) Written evidence of portions of record may be used. A written presentation of the facts or portions of the certified record that are not contested by the parties may be placed into the hearing record by any party, unless there is timely objection by the other party. No party may later contest such evidence or introduce evidence contrary to that matter which has been stipulated.
	41.1008(2) Conducted as evidentiary hearing. All oral arguments, testimony by witnesses and written briefs may refer to evidence contained in the material as any other evidentiary material entered at the hearing. The hearing is conducted as an evidentiary hearing pursuant to rule 281—41.1007(17A,256B).
281—41.1009(17A,256B) Witnesses.
	41.1009(1) Subpoenas. The director of education shall have 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 shall 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 shall be subject to cross-examination. An individual whose testimony has been submitted in written form, if available, shall 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.
281—41.1010(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 shall 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 shall 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 shall 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 shall be notified at the earliest practicable time, either before or during the hearing or by reference in preliminary reports, and shall be 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 shall be made upon consideration of the whole record or such portions that are supported by and in accordance with reliable, probative and substantial evidence.
281—41.1011(17A,256B) Communications.
	41.1011(1) Restrictions on communications—administrative law judge. The administrative law judge shall 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 shall 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 shall 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 the rules regarding ex parte communications: 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.
281—41.1012(17A,256B) Record.
	41.1012(1) Open hearing. Parents involved in hearings shall be given the right to open the hearing to the public. The hearing shall be recorded by mechanized means or by certified court reporters. Any party to a hearing or an appeal has the right to obtain a written or, at the option of the parents, electronic, verbatim record of the hearing and obtain written or, at the option of the parents, electronic findings of fact and decisions. The record of the hearing and the findings of fact and decisions described in this rule must be provided at no cost to parents.
	41.1012(2) Transcripts. All recordings or notes by certified court reporters of oral proceedings or the transcripts thereof shall be maintained and preserved by the department for at least five years from the date of decision.
	41.1012(3) Hearing record. The record of a hearing shall be maintained and preserved by the department for at least five years from the date of the decision. The record under this division shall include 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.
281—41.1013(17A,256B) Decision and review.
	41.1013(1) Decision. The administrative law judge, after due consideration of the record and the arguments presented, shall make a decision on the appeal.
	41.1013(2) Basis of decision. The decision shall be based on the laws of the United States and the state of Iowa and the rules and policies of the department.
	41.1013(3) Time of decision. The administrative law judge’s decision shall be reached and mailed to the parties within the time period specified in 41.515(1), unless an extension of time or continuance has been granted pursuant to 41.515(3).
	41.1013(4) Impartial decision maker. No individual who participates in the making of any decision shall have advocated in connection with the hearing, the specific controversy underlying the case or other pending factually related matters, nor shall any individual who participates in the making of any decision be subject to the authority, direction or discretion of any person who has advocated in connection with the hearing, the specific controversy underlying the hearing or a pending related matter involving the same parties.
281—41.1014(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).
[ARC 3387C, IAB 10/11/17, effective 11/15/17]
281—41.1015(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 shall determine whether such grounds exist and, if so, shall appoint a new mediator.
281—41.1016(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 but not limited to clerical errors, errors in grammar or spelling, and errors in the form of legal citation. Any such correction shall be made within 90 days of the date of the order or decision, shall relate back to the date of the order or decision, and shall not extend any applicable statute of limitations.
281—41.1017 to 41.1099  Reserved.
DIVISION XIII
ADDITIONAL RULES NECESSARY TO IMPLEMENT AND APPLY THIS CHAPTER
281—41.1100(256B,34CFR300) References to Code of Federal Regulations. All references in this chapter to regulations found at Part 300 of Title 34 of the Code of Federal Regulations (34 CFR Part 300) are to those final regulations published in the Federal Register on August 14, 2006 (71 Fed. Reg. 46540). All references to any other regulation found elsewhere in Title 34 of the Code of Federal Regulations shall be to the volume published on July 1, 2006.
281—41.1101(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 shall remain valid.
These 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.
[Filed 12/13/66; amended 10/31/74]
[Filed 5/23/77, Notice 3/23/77—published 6/15/77, effective 7/20/77]
[Filed 7/28/81, Notice 4/29/81—published 8/19/81, effective 9/23/81]
[Filed 10/7/83, Notice 8/31/83—published 10/26/83, effective 11/30/83]
[Filed emergency 8/10/84—published 8/29/84, effective 8/10/84]
[Filed 3/4/85, Notice 10/10/84—published 3/27/85, effective 6/1/85]1
[Filed emergency 7/11/85—published 7/31/85, effective 7/11/85]
[Filed 7/15/88, Notice 6/1/88—published 8/10/88, effective 9/14/88]
[Filed 8/19/88, Notice 6/29/88—published 9/7/88, effective 10/12/88]
[Filed 4/13/90, Notice 2/7/90—published 5/2/90, effective 6/6/90]
[Filed emergency 9/14/90—published 10/3/90, effective 9/14/90]
[Filed 6/5/92, Notice 2/5/92—published 6/24/92, effective 7/29/92]
[Filed 6/11/93, Notice 3/31/93—published 7/7/93, effective 8/11/93]2
[Filed 5/12/95, Notice 3/29/95—published 6/7/95, effective 7/12/95]
[Filed 10/11/96, Notice 8/28/96—published 11/6/96, effective 12/11/96]
[Filed 12/10/99, Notice 10/6/99—published 12/29/99, effective 2/2/00]
[Filed 3/31/06, Notice 2/1/06—published 4/26/06, effective 5/31/06]
[Filed 9/13/07, Notice 6/6/07—published 10/10/07, effective 11/14/07]
[Filed ARC 8387B (Notice ARC 8050B, IAB 8/26/09), IAB 12/16/09, effective 1/20/10]
[Filed ARC 9375B (Notice ARC 9147B, IAB 10/6/10), IAB 2/23/11, effective 3/30/11]
[Filed ARC 9376B (Notice ARC 9269B, IAB 12/15/10), IAB 2/23/11, effective 3/30/11]
[Filed ARC 0814C (Notice ARC 0693C, IAB 4/17/13), IAB 6/26/13, effective 7/31/13]
[Filed ARC 3387C (Notice ARC 3088C, IAB 6/7/17), IAB 10/11/17, effective 11/15/17]
[Filed ARC 3766C (Notice ARC 3614C, IAB 2/14/18), IAB 4/25/18, effective 5/30/18]
[Filed ARC 5329C (Notice ARC 5151C, IAB 8/26/20), IAB 12/16/20, effective 1/20/21]
1	Effective date of Chapter 12 delayed 70 days by the Administrative Rules Review Committee. Delay lifted by Committee on 7/8/85.
2	Effective date of 41.2(3); 41.3(256B), definitions of “Autism,” “Head injury,” “Transition services,” “Behaviorally disordered,” paragraph “1,” “Special education support programs and services”; 41.4(1); 41.18(2)“d”; 41.33(4); 41.33(6) delayed 70 days by the Administrative Rules Review Committee at its meeting held August 3, 1993; delay lifted by this Committee on 9/15/93.