The purpose of this amendment is to clarify responsibilities of the individual educational plan (IEP) team for students with disabilities.

 

DEPARTMENT OF EDUCATION

State Board of Education

RULE NO.:RULE TITLE:

6A-6.03028Provision of Free Appropriate Public Education (FAPE) and Development of Individual Educational Plans for Students with Disabilities

PURPOSE AND EFFECT: The purpose of this amendment is to clarify responsibilities of the individual educational plan (IEP) team for students with disabilities.

SUMMARY: The proposed rule updates language regarding revised IEP content and IEP team membership (when a student is a student with a disability and is also identified as gifted), deletes the phrase “to the extent appropriate” with regard to district’s obligation to invite an agency representative who may be responsible for providing or paying for transition services, and adds factors that an IEP team must consider when addressing a student’s need for extended school year services.

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), 1003.01(3)(a), (b), 1003.4282, 1003.55, 1003.57, 1003.571, 1003.5715, 1008.22 F.S.

LAW IMPLEMENTED: 1002.33, 1003.01(3)(a), (b), 1003.4203, 1003.4282, 1003.55, 1003.57, 1003.571, 1003.5715, 1003.5716, 1008.22 F.S.

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-6.03028 Provision of Free Appropriate Public Education (FAPE) and Development of Individual Educational Plans for Students with Disabilities.

(1) Entitlement to FAPE. All students with disabilities aged three (3) through twenty-one (21) residing in the state have the right to FAPE consistent with the requirements of Section 1003.571, F.S. and Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C. FAPE shall be made available to students with disabilities, including students who have been suspended or expelled, and any individual student with a disability who needs special education and related services, even though the student has not failed or been retained in a course or grade, and is advancing from grade to grade. The obligation to make FAPE available to all students with disabilities does not apply with respect to the following:

(a) through (b) No change.

1. Were not actually identified as being a child with a disability pursuant to Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C.; and,

2. Did not have an individual educational plan (IEP) in accordance with this rule.

(c) The exception in paragraph (b) of this section does not apply to students with disabilities, aged eighteen (18) through twenty-one (21), who:

1. Had been identified as a student with a disability under Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C., and had received services in accordance with an IEP, but who left school prior to their incarceration; or

2. Did not have an IEP in their last educational setting, but who had actually been identified as a student with a disability under Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C.

(2) Treatment of charter school students. Students with disabilities who attend public charter schools and their parents retain all rights under Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C. In carrying out Part B of the Individuals with Disabilities Education Act (IDEA) and Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C., with respect to charter schools that are public schools of the school district, the school district must serve students with disabilities attending those charter schools in the same manner as the district serves students 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 school district has a policy or practice of providing such services on the site to its other public schools and provide funds under Part B of the IDEA to those charter schools on the same basis as the school district provides funds to the school district’s other public schools, including proportional distribution based on relative enrollment of students with disabilities and at the same time as the school district distributes other Federal funds to its other public schools.

(3) IEP rRequirements. An IEP must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. For a student identified as gifted in accordance with Rule 6A-6.03019, F.A.C., and who is also identified as a student with a disability, as defined in paragraph 6A-6.03411(1)(f), F.A.C., the strengths, needs and services associated with a student’s giftedness must be addressed in the student’s IEP. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. For the purposes of this rule, the term parents also includes legal guardians.

(a) Role of parents. The role of parents in developing IEPs includes, but is not limited to:

1. through 6. No change.

(b) Parent participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following:

1. Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend. Any time an IEP meeting is convened for the purpose of reviewing or changing a student’s IEP as it relates to administration of the Florida Standards Alternate Assessment and the provision of instruction in the state standards access points curriculum, or placement of the student in an exceptional student education center, the school shall provide the notice to the parent at least ten (10) days prior to the meeting. The meeting may be convened prior to the tenth day if the parent consents upon receipt of the written notice; and,

2. through (c)3. No change.

4. At least one (1) teacher of the gifted, if the team is developing an IEP for a student who is also identified as gifted in accordance with Rule 6A-6.03019, F.A.C.

5.4. A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. At the discretion of the school district, the student’s special education teacher may be designated to also serve as the representative of the school district if the teacher meets the requirements described in this paragraph;

6.5. An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., 4. or 5. or (3)(c)4. of this rule;

7.6. At the discretion of the parent or the school district, other individuals who have knowledge or special expertise regarding the student, including related services personnel as appropriate. The determination of the knowledge or special expertise of any such individual shall be made by the party who invited the individual to be a member of the IEP Team; and,

8.7. The student, if appropriate, and in all cases where a purpose of the meeting will be the identification of the student’s transition services needs or consideration of postsecondary goals for the student and the transition services needed to assist the student in reaching those goals. If the student does not attend the IEP meeting to identify transition services needs or consider postsecondary and career goals and transition services, the school district shall take other steps to ensure that the student’s preferences and interests are considered.

9.8. To the extent appropriate and Wwith the consent of the parents or a student who has reached the age of majority, the school district shall invite a representative of any participating agency that may be responsible for providing or paying for transition services. Parental consent or the consent of the student who has reached the age of majority must also be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.

10.9. In the case of a child who was previously served and received early intervention services under Part C of the IDEA, 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.

(d) IEP Team member excusal. A member of the IEP Team described in subparagraphs (3)(c)2. through (3)(c)6. of this rule or (3)(c)3. or (3)(c)4. or (3)(c)5. above, is not required to attend an IEP Team meeting, in whole or in part, if the parent of a student with a disability and the school district 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. Any such member of the IEP Team may also 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 the parent, in writing, and the school district consent to the excusal and the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.

(e) Transition of children with disabilities from the infants and toddlers early intervention program.

1. By the third (3rd) birthday of a child who has been participating in the early intervention program for infants and toddlers with disabilities, an IEP consistent with this rule or an individual family support plan (IFSP) consistent with Rule 6A-6.03029, F.A.C., must be developed and implemented.

2. No change.

3. If the child’s third (3rd) birthday occurs during the summer, the child’s IEP Team shall determine the date when services under the IEP or IFSP individual family support plan will begin.

(f) No change.

(g) Considerations in IEP development, review, and revision for students with disabilities. The IEP Tteam shall consider the following in IEP development, review, and revision:

1. through 2. No change.

3. As appropriate, the results of the student’s performance on any general statewide or districtwide district-wide assessment;

4. The academic, developmental, and functional needs of the student;

5. In the case of a student who has also been identified as a student who is gifted in accordance with Rule 6A-6.03019, F.A.C., the IEP shall address the gifted and disability related needs of the student.

6.5. In the case of a student whose behavior impedes the student’s learning or the learning of others, strategies, including the use of positive behavioral interventions, supports, and other strategies to address that behavior;

7.6. In the case of a student with limited English proficiency, the language needs of the student as those needs relate to the student’s IEP;

8.7. In the case of a student who is blind or visually impaired, provision of instruction in bBraille and the use of bBraille unless the IEP Team determines, after an evaluation of the student’s reading and writing skills, needs, including future needs, and appropriate reading and writing media (including an evaluation of the student’s future need for instruction in bBraille or the use of bBraille), that instruction in bBraille or the use of bBraille is not appropriate for the student;

9.8. The communication needs of the student;

10.9. In the case of a student who is deaf or hard-of-hearing or dual-sensory impaired, the Communication Plan form 313189, effective December 2014, is available at (http://www.flrules.org/Gateway/reference.asp?No=Ref-04776) or may be obtained from the Florida Department of Education, Bureau of Exceptional Education and Student Services, 325 West Gaines Street, Room 614, Tallahassee, FL 32399. The Communication Plan form is incorporated by reference and shall be used to address, the student’s language and communication needs;, opportunities for direct communications with peers and professional personnel in the student’s language and communication mode;, academic level;, and full range of needs, including opportunities for direct instruction in the student’s language and communication mode;

11.10. Whether the student requires assistive technology devices and services. On a case-by-case basis, the use of school-purchased assistive technology devices in a student’s home or in other settings is required if the IEP Team determines that the student needs access to those devices in order to receive a FAPE free appropriate public education; and,

12.11. At least annually, whether extended school year (ESY) services are necessary for the provision of a FAPE free appropriate public education to the student consistent with the following:

a. ESY Extended school year services (ESY) must be provided if a student’s IEP Tteam determines, on an individual basis, that the services are necessary for the provision of FAPE to the student.

b. When determining whether ESY services are necessary, the IEP Team must consider all of the following factors:

(I) Whether there is a likelihood that significant regression will occur in critical life skills related to the following areas:

(A) Academics or for prekindergarten children with disabilities, developmentally appropriate pre-academic skills;

(B) Communication;

(C) Independent functioning and self-sufficiency; and,

(D) Social or emotional development or behavior.

(II) Whether the student is at a crucial stage in the development of a critical life skill or an emerging skill and a lapse in services would substantially jeopardize the student’s chances of learning that skill;

(III) Whether the nature or severity of the student’s disability is such that the student would be unlikely to benefit from their education without the provision of ESY services; and

(IV) Extenuating circumstances pertinent to the student’s current situation that indicate the likelihood that FAPE would not be provided without ESY services. Examples include the following: a student who had recently obtained paid supported employment and requires the services of a job coach in order to be successful; a student who requires ESY services in order to remain in his or her existing least restrictive environment (LRE) and prevent movement to a more restrictive setting; and a student whose frequent health-related absences have significantly impeded progress on goals related to critical life skills.

c.b. School districts may not limit ESY to particular categories of disability or unilaterally limit the type, amount, or duration of those services.

13.12. If, after consideration of the factors in paragraph (3)(g) of this rule, the IEP Team determines that a student needs a particular device or service, including an intervention, accommodation or other program modification, in order for the student to receive a FAPE free appropriate public education, the IEP must include a statement to that effect.

(h) Contents of the IEP. The IEP for each student with a disability must include:

1. A statement of the student’s present levels of academic achievement and functional performance, including how the student’s disability affects the student’s involvement and progress in the general curriculum, or for prekindergarten children, as appropriate, how the disability affects the student’s participation in appropriate activities.; For a student identified as gifted and who is also identified as a student with a disability, the statement of the student’s present levels of academic achievement must include the student’s strengths, interests and needs beyond the general curriculum that result from the student’s giftedness;

2. A statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general curriculum or for preschool children, as appropriate, to participate in appropriate activities and meeting each of the student’s other educational needs that result from the student’s disability.; For students also identified as gifted, the IEP must include a statement of measurable annual  goals that result from the student’s giftedness;

3. A description of benchmarks or short-term objectives for:

a. Students with disabilities who take alternate assessments aligned to alternate achievement standards; or

b. Any other student with a disability, at the discretion of the IEP Team.

4. 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 student, or on behalf of the student, and a statement of the classroom accommodations, modifications or supports for school personnel that will be provided for the student to advance appropriately toward attaining the annual goals; to be involved and progress in the general curriculum; to participate in extracurricular and other nonacademic activities; and to be educated and participate with other students with disabilities and nondisabled students in the activities described in this section. A parent must provide signed consent for a student to receive instructional accommodations that would not be permitted on the statewide assessments and must acknowledge in writing that he or she understands the implications of such accommodations. An explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in the activities described in subparagraph (3)(h)4., of this rule;

5. A statement of any individual appropriate accommodations in the administration of statewide standardized assessments as described in Section 1008.22(3), F.S., or district assessments of student achievement that are necessary in order to measure the academic achievement and functional performance of the student on the assessments. Accommodations that negate the validity of a statewide assessment are not allowable in accordance with Section 1008.22(3)(c)3., F.S. If the IEP Team determines that the student will take the Florida Standards Alternate Assessment instead of other statewide standardized assessments or an alternate district assessment of student achievement, the IEP must include a statement of why the student cannot can not participate in other statewide standardized assessments or district assessments and, if applicable, why the particular district alternate assessment selected is appropriate for the student. If a student does not participate in the statewide assessment program as a result of being granted an extraordinary exemption in accordance with the provisions of Section 1008.212, F.S., or a medically complex exemption in accordance with Section 1008.22(9), F.S., the district must notify the student’s parent and provide the parent with information regarding the implications of such nonparticipation in accordance with Section 1008.22(3), F.S.

6. The projected date for the beginning of the special education, services, accommodations and modifications described in subparagraph (3)(h)4., of this rule and the anticipated frequency, location, and duration of those services;

7. No change.

8. Before attaining the age of fourteen (14), in order to ensure quality transition planning and services, IEP Tteams shall begin the process of identifying transition services needs of students with disabilities, to include the following:

a. A statement of intent to pursue a standard high school diploma pursuant to Sections 1003.4282(1)-(9), (11), F.S., or 1003.4282(11), F.S.,and a Scholar or Merit designation in accordance with Section 1003.4285, F.S., as determined by the parent;

b. through 11. No change.

(i) Least restrictive environment (LRE) and placement determinations. Placement determinations shall be made in accordance with the LRE least restrictive environment provisions of the IDEA, as follows:

1. through (k) No changes.

(l) Students with disabilities in adult prisons. The requirements of this rule relating to participation in general assessments do not apply to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons. In addition, the requirements relating to transition planning and services do not apply with respect to those students whose eligibility for services under Part B of the IDEA and Rules 6A-6.03011 through 6A-6.0361 -.0361, F.A.C., 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. The IEP Team of a student with a disability who is convicted as an adult under State law and incarcerated in an adult prison may modify the student’s IEP or placement if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated, and the requirements relating to IEP content and LRE do not apply with respect to such modifications made.

(m) No change.

(n) IEPs and meetings for students with disabilities placed in private schools or community facilities by the school district.

1. If a student with a disability is placed in a private school by the school district, in consultation with the student’s parents, the school district shall:

a. Ensure that the student has all of the rights of a student with a disability who is served by a school district.

b. Before the school district places the student, initiate and conduct a meeting to develop an IEP for the student, in accordance with this rule or for children ages three (3) through five (5), an IEP or an IFSP in accordance with Rules 6A-6.03011 through 6A-6.0361 .0361, FAC.; and,

c. through (o) No change.

(p) Procedures for routine checking of hearing aids and external components of surgically implanted medical devices. Each school district must ensure that hearing aids worn in school by students with hearing impairments, including deafness, are functioning properly and must ensure that the external components of surgically implanted medical devices are functioning properly. For a student with a surgically implanted medical device who is receiving special education and related services under Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C., a school district is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).

(q) Procedures for students with disabilities who are covered by public benefits or insurance. A school district may use the Medicaid or other public benefits or insurance programs in which a student participates to provide or pay for services required under Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C., as permitted under the public benefits or insurance program, except as provided herein.

1. through (IV) No change.

d. Prior to accessing the student’s or parent’s public benefits or insurance for the first time, and after providing notification to the student’s parent as described in sub-subparagraph e. of paragraph (3)(q)1.e. of this rule, the school district must obtain written, parental consent that specifies:

(I) through (III) No change.

(IV) That the parent understands and agrees that the school district may access the parent’s or student’s public benefits or insurance to pay for services required under Rules 6A-6.03011 through 6A-6.0361 .0361, F.A.C.

e. Prior to accessing a student’s or parent’s public benefits or insurance for the first time, and annually thereafter, the school district must provide written notification consistent with the requirements found in paragraphs 6A-6.03311(1)(a) and (b), F.A.C., to the student’s parents that includes:

(I) A statement of the parental consent provision in sub-subparagraph (3)(q)1.d. of this rule d. of this paragraph;

(II) A statement of the no cost provisions of subparagraph (3)(q)1. of this rule;

(III) through 3. No change.

(r) Access to iInstructional mMaterials. Each school district must take all reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials at the same time as other children receive instructional materials.

(s) through (t) No change.

Rulemaking Authority 1001.02(1), (2)(n), 1003.01(3)(a), (b), 1003.4282, 1003.55, 1003.57, 1003.571, 1003.5715, 1008.22 FS. Law Implemented 1002.33, 1003.01(3)(a), (b), 1003.4203, 1003.4282, 1003.55, 1003.57, 1003.571, 1003.5715, 1003.5716, 1008.22 FS. History–New 7-13-93, Amended 10-17-04, 12-22-08, 12-15-09, 3-25-14, 12-23-14,_______.

 

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 29, 2015

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