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, 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) Students with disabilities who have graduated from high school with a standard diploma, and who have not deferred receipt of the diploma, in accordance with Section 1003.4282(8)(c), F.S. A standard diploma does not include an alternative degree that is not fully aligned with the state’s academic standards, such as a certificate of completion or a general educational development credential (GED); and,

(b) Students aged eighteen (18) through twenty-one (21) who, in the last educational placement prior to their incarceration in an adult correctional facility:

1. Were not actually identified as being a child with a disability pursuant to Rules 6A-6.03011 through 6A-6.0361, 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, 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, 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, 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, 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 requirements. 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:

1. Providing critical information regarding the strengths of their student;

2. Expressing their concerns for enhancing the education of their student so that their student can receive FAPE;

3. Participating in discussions about the student’s need for special education and related services;

4. Participating in the determination of how the student will be involved and progress in the general curriculum, including participation in the statewide assessment program and in district-wide assessments;

5. Participating in the determination of what services the school district will provide to the student and in what setting; and,

6. Participating in the determination of which course of study leading towards a standard diploma the student will pursue, consistent with Section 1003.4282, F.S., to include a course of study leading to a Scholar or Industry Scholar designation in accordance with Section 1003.4285, F.S.

(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 Alternate Assessment and the provision of instruction in the state alternate academic achievement 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. Scheduling the meeting at a mutually agreed on time and place.

3. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. The notice must also include a statement informing the parents that they have the right to invite individuals with special knowledge or expertise about their student and that they may request that a Part C service coordinator or other representative of the Part C system be invited to attend the initial IEP Team meeting for a child previously receiving early intervention services under Part C of the IDEA.

a. No later than the first IEP to be in effect during the student’s seventh grade year or when the student attains the age of twelve (12), whichever occurs first, or younger if determined appropriate by the IEP Team, the notice must also indicate that a purpose of the meeting will be identifying transition services needs of the student and that the district will invite the student.

b. No later than the first IEP to be in effect when the student enters ninth grade or when the student, attains the age of fourteen (14), whichever occurs first, or when determined appropriate by the parent and the IEP team, the notice must also indicate that a purpose of the meeting will be consideration of the postsecondary and career goals and transition services for the student, that the district will invite the student, and identify any other agency that will be invited to send a representative to the meeting.

c. No later than the first IEP to be in effect at the beginning of the school year the student is expected to graduate, the notice must indicate that a purpose of the meeting will be the consideration for deferment and identifying if the student will defer the receipt of his or her diploma.

4. If a parent cannot attend in person, the school district shall use other methods to ensure parent participation, including individual or conference telephone calls or video conferencing.

5. A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as:

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 parents’ home or place of employment and the results of those visits.

6. The district shall take whatever action is necessary to ensure that the parents and the student, during the student’s seventh grade year or when the student attains the age of twelve (12), whichever occurs first, understand the proceedings at a meeting, which may include arranging for an interpreter for parents and students who are deaf or whose native language is a language other than English.

7. A meeting does not include informal or unscheduled conversations involving school district 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 school district personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

8. The district shall give the parents a copy of the IEP at no cost to the parents.

(c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include:

1. The parents of the student;

2. Not less than one (1) regular education teacher of the student, if the student is or may be participating in the regular education environment. The regular education teacher of a student with a disability, as a member of the IEP Team, must to the extent appropriate, participate in the development, review, and revision of the student’s IEP, including assisting in the determination of:

a. Appropriate positive behavioral interventions and supports and other strategies for the student; and,

b. Supplementary aids and services, classroom accommodations, modifications or supports for school personnel that will be provided for the student consistent with this rule.

3. Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student;

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

7. 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. 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. With 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. 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, 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. For the purpose of implementing the requirement of this rule, each school district will participate in transition planning conferences arranged by the state lead agency for the infants and toddlers with disabilities early intervention program.

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 will begin.

(f) IEP and meeting timelines. Timelines for IEPs for students with disabilities shall include the following:

1. An IEP, which has been reviewed, and if appropriate, revised periodically, but not less than annually, must be in effect at the beginning of each school year for each eligible student with a disability within its jurisdiction.

2. An IEP must be developed within thirty (30) calendar days following the determination of a student’s eligibility for special education and related services and be in effect prior to the provision of these services.

3. Meetings shall be held to develop, review and revise the IEP. A meeting shall be held at least annually to review each IEP and, as appropriate, revise its provisions in accordance with all aspects of this rule.

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

1. The strengths of the student and the concerns of the parents for enhancing the education of their student;

2. The results of the initial or most recent evaluation or reevaluation of the student;

3. As appropriate, the results of the student’s performance on any general statewide or districtwide 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. 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. 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. In the case of a student who is blind or visually impaired, provision of instruction in braille and the use of braille 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 braille or the use of braille), that instruction in braille or the use of braille is not appropriate for the student;

9. The communication needs of the student;

10. 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. 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; and,

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

a. ESY services must be provided if a student’s IEP Team 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. School districts may not limit ESY to particular categories of disability or unilaterally limit the type, amount, or duration of those services.

13. 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, 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 and without disabilities 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 students without disabilities 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)(d)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 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(11), 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. A statement of how the student’s progress toward meeting the annual goals will be measured and when periodic reports on the progress the student 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;

8. During the student’s seventh grade year or when the student attains the age of twelve (12), whichever occurs first, in order to ensure quality transition planning and services, IEP Teams shall begin the process of identifying transition services needs of students with disabilities, to include the following:

a. The preparation needed for the student to graduate from high school with a standard diploma and a Scholar or Industry Scholar diploma designation as determined by the parent;

b. Consideration of the student’s need for instruction or the provision of information in the area of self-determination and self-advocacy to assist the student to be able to actively and effectively participate in IEP meetings and self-advocate, so that needed postsecondary and career goals may be identified. The plan must be operational and in place to begin implementation on the first day of the student’s first year in high school;

c. Provision of the information to the student and his or her parent of the school district’s high school-level transition services, career and technical education, and collegiate programs available to students with disabilities and how to access such programs; and

d. Information shall be provided on school-based transition programs and programs and series available through Florida’s Center for Students with Unique Abilities, the Florida Centers for Independent Living, the Division of Vocational Rehabilitation, the Agency for Persons with Disabilities, and the Division of Blind Services. Referral forms, links and technical support contacts for these services must be provided to students and parents at IEP meeting.

9. Beginning not later than the first IEP to be in effect when the student enters ninth grade or when the student attains the age of fourteen (14), or when determined appropriate by the parent and the IEP team, whichever occurs first, the IEP must be updated at least annually and must include the following:

a. A statement of intent to receive a standard high school diploma pursuant to Sections 1003.4282(1)-(8) or (9), F.S. This statement must be signed by the parent or guardian and must document the following

(I) If the student will pursue a Scholar or Industry Scholar designation in accordance with Section 1003.4285, F.S., as determined by the parent:

(II) Discussion of the process for a student with a disability who meets the requirements for a standard high school diploma to defer the receipt of such diploma pursuant to Section 1003.4285, F.S.

(III) Appropriate measurable postsecondary and career goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills and the transition services (including pre-employment transition services and courses of study) needed to assist the student in reaching those goals. Any changes to these goals; and,

(IV) If a participating agency responsible for transition services, other than the school district, fails to provide the transition services described in the IEP, the school district shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.

(V) A statement of the outcomes and the additional benefits expected by the parent and the IEP team at the time of the student’s graduation;

b. For the IEP in effect at the beginning of the school year the student is expected to graduate, this statement must also include the following:

(I) A signed statement by the parent, the guardian or the student, if the student has reached the age of majority and rights have transferred to the student, that he or she understands the process of deferment and identifying if the student will defer the receipt of his or her standard high school diploma.

10. Beginning at least one (1) year before the student’s eighteenth (18th) birthday, the age of majority, a statement that the student has been informed of his or her rights under Part B of the IDEA, if any, that will transfer from the parent to the student on reaching the age of majority, which is eighteen (18) years of age.

11. At least one (1) year before the student reaches the age of majority, provision of information and instruction to the student and his or her parent on self-determination and the legal rights and responsibilities regarding the educational decisions that transfer to the student upon attaining the age of eighteen (18). Pursuant to Section 1003.5716, F.S., the information must include the ways in which the student may provide informed consent to allow his or her parent to continue to participate in educational decisions, including:

a. Informed consent to grant permission to access confidential records protected under the Family Educational Rights and Privacy Act (FERPA) as provided in s. 1002.22, F.S.

b. Powers of attorney as provided in chapter 709, F.S.

c. Guardian advocacy as provided in s. 393.12, F.S.

d. Guardianship as provided in chapter 744, F.S.

e. Supported decisionmaking agreements as provided in s. 709.2209, F.S.

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

1. To the maximum extent appropriate, students with disabilities, including those in public or private institutions or other facilities, are educated with students who are not disabled;

2. Special classes, separate schooling or other removal of students with disabilities from the regular educational 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; and,

3. A continuum of alternative placements must be available to meet the needs of students with disabilities for special education and related services, including instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions and a school district must make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

4. In determining the educational placement of a student with a disability, including a preschool child with a disability, each school district must ensure that:

a. The placement decision.

(I) Is made by a group of persons, including the parents, and other persons knowledgeable about the student, the meaning of the evaluation data, and the placement options; and,

(II) Is made in conformity with the LRE provisions of this rule.

b. The student’s placement:

(I) Is determined at least annually;

(II) Is based on the student’s IEP; and,

(III) Is as close as possible to the student’s home.

c. Unless the IEP of a student with a disability requires some other arrangement, the student is educated in the school that he or she would attend if nondisabled;

d. In selecting the LRE, consideration is given to any potential harmful effect on the student or on the quality of services that he or she needs; and,

e. A student with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

5. In providing or arranging for the provision of nonacademic and extracurricular services and activities (including meals, recess periods, counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the school district and assistance in making outside employment available), each school district must ensure that each student with a disability participates with students who are not disabled to the maximum extent appropriate to the needs of the student. The school district must ensure that each student with a disability has the supplementary aids and services determined by the student’s IEP Team to be appropriate and necessary for the student to participate in nonacademic settings.

(j) Review and revision of the IEP. The school district shall ensure that the IEP Team:

1. Reviews the student’s IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved;

2. Revises the IEP as appropriate to address:

a. Any lack of expected progress toward the annual goals and in the general curriculum, if appropriate;

b. The results of any reevaluation conducted;

c. Information about the student provided to, or by, the parents;

d. The student’s anticipated needs or other matters; and,

e. Consideration of the factors described in paragraph (3)(g) of this rule; and,

3. Responds to the parent’s right to ask for revision of the student’s IEP; and,

4. Encourages the consolidation of reevaluation meetings for the student and other IEP Team meetings for the student, to the extent possible.

(k) Changes to the IEP. Generally, changes to the IEP must be made by the entire IEP Team at an IEP Team meeting and may be made by amending the IEP rather than by redrafting the entire IEP. However, in making changes to a student’s IEP after the annual IEP meeting for a school year, the parent and the school district may agree not to convene an IEP Team meeting for purposes of making those changes, and instead may develop a written document to amend or modify the student’s current IEP. If changes are made to the student’s IEP without a meeting, the school district must ensure that the student’s IEP Team is informed of those changes. Upon request, a parent must be provided with a revised copy of the IEP with the amendments incorporated. In addition, the following changes to the IEP and decisions made by the IEP team must be approved by the parent or the adult student if rights have transferred in accordance with subsection 6A-6.03311(8), F.A.C. Such changes are subject to an independent review by private instructional personnel who are hired, contracted, or selected by the parent pursuant to Section 1003.572, F.S., and include:

1. Changes to the postsecondary or career goals; and,

2. Changes to the graduation pathway specified in the student’s IEP and any waiver of statewide standardized assessment results made by the IEP team in accordance with the provisions of Section 1008.22(3)(d), F.S.

(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, 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) IEP implementation and accountability. The school district, or other state agency that provides special education either directly, by contract, or through other arrangements, is responsible for providing special education to students with disabilities in accordance with the students’ IEPs. However, it is not required that the school district, teacher, or other person be held accountable if a student does not achieve the growth projected in the annual goals and benchmarks or objectives. An IEP must be in effect before special education and related services are provided to an eligible student and must be implemented as soon as possible following the IEP meeting. In addition:

1. The student’s IEP shall be accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.

2. All teachers and providers shall be informed of their specific responsibilities related to implementing the student’s IEP and the specific accommodations, modifications, and supports that must be provided for the student in accordance with the IEP.

3. The school district must make a good faith effort to assist the student to achieve the goals and objectives or benchmarks listed on the IEP.

4. Nothing in this section limits a parent’s right to ask for revisions of the child’s IEP or to invoke due process procedures.

(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, FAC.; and,

c. Ensure the attendance of a representative of the private school at the meeting. If the representative cannot attend, the school district shall use other methods to ensure participation by the private school, including individual or conference telephone calls.

2. After a student with a disability enters a private school or facility, any meetings to review and revise the student’s IEP may be initiated and conducted by the private school or facility at the discretion of the school district but the school district must ensure that the parents and a school district representative are involved in decisions about the IEP and agree to proposed changes in the IEP before those changes are implemented by the private school.

3. Even if a private school or facility implements a student’s IEP, responsibility for compliance with these rules remains with the school district.

4. Subparagraphs (3)(n)1. through 3. of this rule, apply only to students who are or have been placed in or referred to a private school or facility by a school district as a means of providing FAPE.

(o) If placement in a public or private residential program is necessary to provide special education to a student with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the student.

(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, 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, F.A.C., as permitted under the public benefits or insurance program, except as provided herein.

1. With regard to services required to provide FAPE to an eligible student under the IDEA, the school district:

a. May not require parents to sign up for or enroll in public insurance programs in order for their student to receive FAPE under Part B of the IDEA;

b. May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to the IDEA, but pursuant to subparagraph (3)(q)3. of this rule, may pay the cost that the parent otherwise would be required to pay;

c. May not use a student’s benefits under a public insurance program if that use would:

(I) Decrease available lifetime coverage or any other insured benefit;

(II) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the student outside of the time the student is in school;

(III) Increase premiums or lead to the discontinuation of benefits or insurance; or

(IV) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and,

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 (3)(q)1.e. of this rule, the school district must obtain written, parental consent that specifies:

(I) The personally identifiable information that may be disclosed such as records or information about the services that may be provided to the student;

(II) The purpose of disclosure, such as for purpose of billing for services;

(III) The agency to which the disclosure may be made; and,

(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, 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;

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

(III) A statement that the parents have the right to withdraw their consent to disclose their child’s personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance at any time; and,

(IV) A statement that the withdrawal of consent or refusal to provide consent to disclose personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.

2. With regard to students with disabilities who are covered by private insurance, a school district may access a parent’s private insurance proceeds to provide services required under the IDEA only if the parent provides written informed consent. Each time the school district proposes to access the parent's private insurance proceeds, the agency must obtain parental consent and inform the parents that their refusal to permit the school district to access their private insurance does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.

3. Use of Part B funds if parent does not give consent. If a school district 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 to ensure FAPE, the school district may use its IDEA Part B funds to pay for the service. 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 school district may use its IDEA 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 co-pay amounts).

(r) Access to instructional materials. 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) Physical education. Physical education services, specially designed if necessary, must be made available to every student with a disability receiving FAPE, unless the school district enrolls students without disabilities and does not provide physical education to students without disabilities in the same grades. Each student with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled students unless the student is enrolled full time in a separate facility or the student needs specially designed physical education, as prescribed in the student’s IEP. If specially designed physical education is prescribed in a student’s IEP, the school district responsible for the education of that student must provide the services directly or make arrangements for those services to be provided through other public or private programs. The school district responsible for the education of a student with a disability who is enrolled in a separate facility must ensure that the student receives appropriate physical education services in compliance with this section.

(t) Program options. Each school district must take steps to ensure that its students with disabilities have available to them the variety of educational programs and services available to students without disabilities in the area served by the school district, including art, music, industrial arts, consumer and homemaking education, and career technical education.

Rulemaking Authority 1001.02(1), (2)(n), 1003.011003.4203, 1003.4282, 1003.55, 1003.57, 1003.571, 1003.5715, 1008.22 FS. Law Implemented 1002.33, 1003.01, 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, 1-7-16, 5-3-22, 9-26-23, 2-20-24, 8-27-24.