The purpose is to include a statement that the procedural safeguards of Rule 6A-6.03311, F.A.C., apply for students who are identified as gifted and as having a disability.

 

DEPARTMENT OF EDUCATION

State Board of Education

RULE NO.:RULE TITLE:

6A-6.03313Procedural Safeguards for Exceptional Students Who Are Gifted

PURPOSE AND EFFECT: The purpose is to include a statement that the procedural safeguards of Rule 6A-6.03311, F.A.C., apply for students who are identified as gifted and as having a disability.

SUMMARY: The proposed changes remove obsolete language and align terms with other recently revised State Board of Education rules.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: 1) no requirement for SERC was triggered under s. 120.541(1), F.S., and 2) based on past experiences with rules that affect individual students and their families in an educational setting and have no impact on small businesses, the adverse impact or regulatory cost, if any, do not exceed nor would be expected to exceed any one of the economic analysis criteria set forth in s. 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 1001.02(1), (2)(n), 1001.02(1), (2)(n), 1003.01(3)(a), (b), 1003.57(5) FS.

LAW IMPLEMENTED: 1001.03(8), 1001.42(4)(l), 1003.01(3)(a), (b), 1003.57(1) FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: December 4, 2015, 9:30 a.m.

PLACE: Conference call (The call in information will be posted on the Department’s website no later than 14 days prior to the meeting at http://www.fldoe.org/policy/state-board-of-edu/meetings/).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Mary Jane Tappen, Executive Vice Chancellor, K-12 Public Schools, 325 West Gaines St., Tallahassee, FL 32399, [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

6A-6.03313 Procedural Safeguards for Exceptional Students Who Are Gifted.

Providing parents with information regarding their rights under this rule is critical to ensuring that they have the opportunity to be partners in the decisions regarding their children. It is also critical that local school boards provide information about these rights to appropriate district and school personnel so that the needs of the student can be identified and appropriately met. For gifted students with disabilities, the procedural safeguards and due process procedures found in Rule 6A-6.03311, F.A.C., apply. For the purposes of this rule, the term parent(s) also includes legal guardian(s). The school board’s policy and procedures for procedural safeguards described in this rule shall be set forth in accordance with Rule 6A-6.03411, F.A.C., and shall include adequate provisions for the following:

(1) Prior notice. The school district shall provide parents with prior written notice a reasonable time before any proposal or refusal to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student.

(a) through (b) No change.

(c) The notice to the parents shall include:

1. No change.

2. A description of each evaluation procedure, test, record, or report the district used as a basis for the proposed or refused action;

3. through 4. No change.

(2) Content and pProvision of the pProcedural sSafeguards to pParents.

(a) through (b) No change.

(3) Informed parental consent.

(a) through (d) No change.

(e) Except for formal, individual evaluation and the initial provision of services to the student, consent may not be required as a condition of any other benefit to the parent or child. Any proposal or refusal to initiate or change the identification, evaluation, or educational placement or the provision of a FAPE free appropriate public education to the student after the initial placement is not subject to parental consent but is subject to prior notice as defined by subsection (1) of this rule.

(f) No change.

(4) Parents’ opportunity to examine records and participate in meetings.

(a) No change.

(b) The right to inspect and review education records under this rule includes the right to have a representative of the parent inspect and review the records including all records related to the identification, evaluation, and educational placement of the child and the provision of a FAPE free appropriate public education to the child.

(c) No change.

(5) Evaluations obtained at private expense. If the parent obtains an independent evaluation at private expense which meets the requirements of subsection 6A-6.0331(3)(e)(4), F.A.C., the results of the evaluation must be considered by the school district in any decision made with the respect to the determination of eligibility for exceptional student education services.

(a) No change.

(b) If an administrative law judge (ALJ) requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense, as defined in paragraph 6A-6.03411(7)(c), F.A.C.

(6) State cComplaint pProcedures. The Department of Education shall provide parents and other interested persons the opportunity to resolve allegations that a school district has violated state requirements regarding the education of students who are gifted through the establishment of state complaint procedures.

(a) through (b) No change.

(c) Relationship to due process hearings.

1. No change.

2. If an issue is raised in a complaint filed under this subsection that has previously been decided in a due process hearing involving the same parties, the ALJ’s administrative law judge’s decision is binding and the Department of Education shall inform the complainant to that effect.

3. No change.

(7) Due process hearings. Due process hearings shall be available to parents of students who are gifted and to school districts to resolve matters related to the identification, evaluation, or educational placement of the student or the provision of a FAPE free appropriate public education.

(a) No change.

(b) A hearing shall be conducted by an ALJ administrative law judge from the Division of Administrative Hearings, Department of Management Services, on behalf of the Department of Education.

(c) An administrative law judge (ALJ) shall use subsection (7) of this rule for any such hearings and shall conduct such hearings in accordance with the Uniform Rules for Administrative Proceedings, Chapter 28-106, F.A.C., as deemed appropriate by the ALJ including, but not limited to: the authority of a party to request a pre-hearing conference, the authority of the ALJ to issue subpoenas to compel the attendance of witnesses and the production of records, and the authority of the ALJ to issue summary rulings in absence of a disputed issue of material fact.

(d) No change.

2. If the ALJ administrative law judge agrees with the parent and finds that a change of placement is appropriate, that placement becomes the agreed-upon placement during the pendency of the appeal.

(e) Hearing rights for all parties.

1. Any party to a hearing conducted pursuant to subsection (7) of this rule has the right to:

a. To Bbe represented by counsel or to be represented by a qualified representative under the qualifications and standards set forth in Rules 28-106.106 and 28-106.107, F.A.C., or to be accompanied and advised by individuals with special knowledge or training with respect to the problems of students who are gifted, or any combination of the above;

b. To Ppresent evidence, and to confront, cross-examine, and compel the attendance of witnesses;

c. To Pprohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five (5) business days before the hearing;

d. To Oobtain written, or at the option of the parents, electronic, verbatim record of the hearing at no cost to the parents; and,

e. To Oobtain written, or at the option of the parents, electronic findings of fact and decisions at no cost to the parents.

2. Additional disclosure of information.

a. No change.

b. An ALJ administrative law judge may bar any party that fails to comply with subparagraph (7)(e)2. of this rule from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

(f) No change.

(g) Duties and responsibilities of the superintendent or designee shall include:

1. No change.

2. Immediately forwarding to the Division of Administrative Hearings in accordance with the Division’s procedures, by facsimile transmission of the parent’s request for a hearing upon its receipt;

3. through 4. No change.

5. Complying with the ALJ’s administrative law judge’s rulings regarding requests for and exchanges of evidence,; discovery,; the filing of motions and, scheduling, so as to meet the requirements of this rule, and the deadlines established herein.

6. through 7. No change.

(h) Duties and responsibilities of the Department of Education shall include:

1. Maintaining a list of persons who serve as ALJ’s administrative law judge’s including a statement of the qualifications of each of these persons; and,

2. through (i) No change.

(j) Civil action. A decision made in a hearing conducted under subsection (7) of this rule shall be final, unless, within thirty (30) days, a party aggrieved by the decision brings a civil action in state circuit court without regard to the amount in controversy, as provided in Section 1003.57(5), F.S. The state circuit court shall: receive the records of the administrative proceedings; hear, as appropriate, additional evidence at the request of a party; and, basing its decision on the preponderance of the evidence, shall grant the relief it determines appropriate. In the alternative, any party aggrieved by the ALJ’s administrative law judge’s decision shall have the right to request an impartial review by the appropriate district court of appeal as provided by Sections 120.68 and 1003.57(5), F.S.

Rulemaking Authority 1001.02(1), (2)(n), 1003.01(3)(a), (b), 1003.57(1)(5) FS. Law Implemented 1001.03(8), 1001.42(4)(l), 1003.01(3)(a), (b), 1003.57(1)(5) FS. History–New 9-20-04, Amended______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Hershel Lyons, Chancellor, K-12 Public Schools

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Pam Stewart, Commissioner, Department of Education

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 30, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 4, 2015