(1) (a) The
determination that a child has a disability and is eligible for special education
services shall be made by a multidisciplinary team that shall include, at a minimum,
the parent of the child and professionally qualified personnel designated by the
responsible administrative unit or state-operated program. The composition of the
multidisciplinary team and the procedures to be used for determining a child's
eligibility for special education services shall be prescribed by rules promulgated
by the state board pursuant to this part 1.
(b) The development of an IEP for a child with a disability and determination
of educational placement shall be made by the child's IEP team, including but not
limited to the child's parent and qualified professional personnel designated by the
responsible administrative unit or state-operated program. The composition of the
IEP team and the procedures to be used for developing the child's IEP shall be
prescribed by rules promulgated by the state board pursuant to this part 1.
(2) (Deleted by amendment, L. 2006, p. 325, � 8, effective August 7, 2006.)
(3) (a) In the event of a dispute between the parents of a child with a
disability and an administrative unit or state-operated program, the parents or the
administrative unit or state-operated program shall have the same rights to an
impartial due process hearing as are provided in the IDEA and the federal
regulations, 34 CFR part 300, implementing the act. To request a due process
hearing, the parents of a child with a disability or the administrative unit or state-operated program shall simultaneously file complete copies of the due process
complaint with the opposing party and with the commissioner of education or his or
her designee to ensure the timely assignment of an impartial hearing officer.
(b) If a due process hearing is requested pursuant to paragraph (a) of this
subsection (3), the department shall provide the hearing in compliance with the
requirements and provisions of IDEA and the federal regulations, 34 CFR part 300,
implementing the act, including but not limited to the requirements governing due
process complaints, resolution meetings, impartial due process hearing procedures,
hearing rights, timelines, hearing decisions, and civil actions.
(c) The findings and decision made by the department shall be final. Any
party aggrieved by the department's findings and decision has the right to bring a
civil action pursuant to the provisions of IDEA and the federal regulations, 34 CFR
300.516 (a), implementing the act.
(4) Each child determined to have a disability by the multidisciplinary team
pursuant to paragraph (a) of subsection (1) of this section shall be provided with an
IEP developed by the child's IEP team pursuant to paragraph (b) of subsection (1) of
this section and shall be reviewed annually. The IEP for each child enrolled in a
school district or an institute charter school shall specify whether the child shall
achieve the content standards adopted by the district in which the child is enrolled
or by the state charter school institute or whether the child shall achieve
individualized standards which would indicate the child has met the requirements of
his or her IEP. For each child attending school in an approved facility school or
state-operated program, the IEP shall specify whether the child shall achieve state
or local content standards, or whether the child shall achieve individualized
standards which would indicate that the child has met the requirements of his or
her IEP. When a child with a disability is to be placed outside of the district of
residence, the receiving agency, institution, administrative unit, state-operated
program, or approved facility school providing the special education services shall
cooperate in the development of the IEP. The IEP shall be coordinated with all
individual plans required by other federal or state programs in order to provide for
maximum coordination of service to the child with a disability, which may include
the provision of appropriate special education services for the child with a
disability, by agreement or contract with public agencies, nonprofit organizations,
or approved facility schools. Any court of record, the department of human
services, or any other public agency authorized by law to place a child in a facility
shall notify in writing the child's administrative unit of residence, the administrative
unit in which the child will receive special education services, and the department
of such placement within fifteen calendar days after the placement. An
administrative unit of residence that disapproves of the placement shall do so in
writing pursuant to subsection (8) of this section.
(4.5) (a) In developing the IEP pursuant to subsection (4) of this section for a
child who is blind or visually impaired, in addition to any other requirements
established by the state board, the IEP team shall assess and determine which
literacy mode or modes would be most appropriate for the child's instruction. The
IEP for a child who is blind or visually impaired shall specify the following:
(I) How the selected literacy mode or modes will be implemented as the
child's primary or secondary mode for achieving literacy and why such mode or
modes have been selected;
(II) How the child's instruction in the selected literacy mode or modes will be
integrated into educational activities;
(III) The date on which the child's instruction in the selected mode or modes
shall commence, the amount of instructional time to be dedicated to each literacy
mode, and the service provider responsible for each area of instruction; and
(IV) The level of competency in the selected literacy mode or modes which
the child should achieve by the end of the period covered by the IEP.
(b) A child who is blind or visually impaired shall not be denied the
opportunity for instruction in braille solely because the child has some remaining
vision. Any child for whom instruction in braille is determined to be beneficial shall
receive such instruction as part of such child's IEP.
(c) If the IEP team determines that a child's IEP shall include instruction in
braille, such instruction shall be sufficient to enable the child to read and write
effectively and efficiently at a level commensurate with the child's sighted peers of
comparable physical and cognitive abilities and grade level.
(d) If the IEP team determines that a child's IEP shall include instruction in
braille, the child shall receive such instruction from a teacher who can demonstrate
competence in reading and writing braille according to standards to be established
by the state board.
(e) Nothing in this subsection (4.5) shall require an administrative unit, a
state-operated program, or an approved facility school to expend additional
resources or hire additional personnel to implement the provisions of this section.
(f) The department shall develop guidelines for caseload management for
instructors of children who are blind or visually impaired in the schools of the
administrative units. Such guidelines will evaluate how much instructional time
should be allotted for children who are blind or visually impaired, will reflect the
varying levels of severity of such children's needs, and will be renewed and updated
on a periodic basis to incorporate current research and practice.
(4.7) (a) In developing an IEP pursuant to subsection (4) of this section for a
child who is deaf or hard of hearing, in addition to any other requirements
established by the state board, the IEP team shall consider the related services and
program options that provide the child with an appropriate and equal opportunity
for communication access. The IEP team shall consider the child's specific
communication needs and, to the extent possible under paragraph (g) of this
subsection (4.7), address those needs as appropriate in the child's IEP. In
considering the child's needs, the IEP team shall expressly consider the following:
(I) The child's individual communication mode or language;
(II) The availability to the child of a sufficient number of age, cognitive, and
language peers of similar abilities;
(III) The availability to the child of deaf or hard-of-hearing adult models of
the child's communication mode or language;
(IV) The provision of appropriate, direct, and ongoing language access to
teachers of the deaf and hard of hearing and educational interpreters and other
specialists who are proficient in the child's primary communication mode or
language; and
(V) The provision of communication-accessible academic instruction, school
services, and extracurricular activities.
(b) To enable a parent to make informed decisions concerning which
educational options are best suited to the parent's child, all of the educational
options provided by the administrative unit, state-operated program, or approved
facility school and available to the child at the time the child's IEP is prepared shall
be explained to the parent.
(c) A child who is deaf or hard-of-hearing shall not be denied the opportunity
for instruction in a particular communication mode or language solely because:
(I) The child has some remaining hearing;
(II) The child's parents are not fluent in the communication mode or language
being taught; or
(III) The child has previous experience with some other communication mode
or language.
(d) Nothing in this subsection (4.7) shall preclude instruction in more than
one communication mode or language for any particular child. Any child for whom
instruction in a particular communication mode or language is determined to be
beneficial shall receive such instruction as part of the child's IEP.
(e) Notwithstanding the provisions of subparagraph (II) of paragraph (a) of
this subsection (4.7), nothing in this subsection (4.7) may be construed to require
that a specific number of peers be provided for a child who is deaf or hard of
hearing.
(f) Nothing in this subsection (4.7) shall abrogate parental choice among
public educational programs as provided in section 22-20-109 or article 30.5 or 36
of this title or as otherwise provided by law.
(g) Nothing in this subsection (4.7) shall require an administrative unit to
expend additional resources or hire additional personnel to implement the
provisions of this subsection (4.7).
(4.8) In developing an IEP pursuant to subsection (4) of this section for a
child who is an English language learner, in addition to any other requirements
established by the state board, the IEP shall consider the related services and
program options that provide the child with an appropriate and equal opportunity
for communication access. Communication access must include access to effective
communication pursuant to Title II of the federal Americans with Disabilities Act of
1990, 42 U.S.C. sec. 12131 et seq., as amended. The IEP team shall consider the
child's specific communication needs and, to the extent possible, address those
needs as appropriate in the child's IEP. In considering the child's needs, the IEP
team may translate or contract with a translation service provider to translate any
IEP draft documents into the dominant language spoken in the home of the child's
parent, guardian, or legal custodian. Upon request of the child's parent, guardian, or
legal custodian, the IEP team shall translate or contract with a translation service
provider to translate the final IEP document into a written translation or an oral
recording in the dominant language spoken in the home of the child's parent,
guardian, or legal custodian. The IEP team shall verbally inform the child's parent,
guardian, or legal custodian of the right to request translation services.
(5) In formulating recommendations for the least restrictive environment for
a child with a disability, the IEP team shall:
(a) Determine, utilizing guidelines recommended by the department, whether
the nature or severity of the child's disability is such that education in general
education classes with the use of supplementary aids and services cannot be
achieved satisfactorily or, when provided with supplementary aids and services, the
nature or severity of the child's disability is so disruptive that the education of other
children in such classes would be significantly impaired;
(b) Work cooperatively with the department of human services, when
applicable; and
(c) Be guided by the legislative declaration contained in section 22-20-102.
(5.5) The administrative unit or state-operated program shall consider the
cost to the administrative unit or state-operated program when choosing between
two or more appropriate educational placements.
(6) (Deleted by amendment, L. 2011, (HB 11-1077), ch. 30, p. 78, � 7, effective
August 10, 2011.)
(7) (a) If an out-of-district placement by an administrative unit appears to be
necessary, it is the responsibility of the child's IEP team of the administrative unit of
residence to determine whether the child requires a more restrictive setting based
on the unique needs of the child. It is the responsibility of the special education
director of the administrative unit of residence to place the child in the least
restrictive environment consistent with the educational placement decision of the
IEP team.
(b) If it becomes necessary for a court or public agency to place a child in a
public placement:
(I) Prior to such public placement, the court or public agency shall work
cooperatively with the affected administrative unit or units, as defined by rules
promulgated by the state board pursuant to this article, to ensure that appropriate
special education services are available for the child;
(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (b),
the court or public agency may make the public placement without first
cooperating with the affected administrative unit or units if an emergency public
placement is required for the child.
(c) In no event shall the public agency place a child in an administrative unit
or approved facility school that is unable to ensure the provision of special
education services that are appropriate for the child. The costs of educating the
child shall be the responsibility of the school district of residence, and the school
district shall pay tuition costs in accordance with section 22-20-109.
(8) Notwithstanding the provisions of paragraph (c) of subsection (7) of this
section, if a court or public agency makes a public placement but fails to comply
with the notification requirements of subsection (4) of this section, the court or
public agency shall be responsible for the tuition costs for the child until such time
as the required notification is made. If a child's administrative unit of residence
does not provide written notice of disapproval of a placement in a facility by a court
or a public agency within fifteen calendar days after the notification made pursuant
to subsection (4) of this section, the placement shall be deemed to be approved. An
administrative unit of residence may disapprove a placement in a facility by a court
or public agency only on the basis of the unavailability of appropriate special
education services in the administrative unit in which the child will be placed. If the
administrative unit of residence disapproves the placement in the facility, it shall
ensure that the child receives a free appropriate public education until an
appropriate placement can be determined. If the administrative unit of residence
disapproves the placement in the facility, the disapproval shall be subject to appeal
as provided for in subsection (3) of this section.
(9) If a teacher of a child with a disability determines that the child's
presence in a general education classroom is so disruptive that other children's
learning in the class is significantly impaired, the teacher may utilize the district's
or the state charter school institute's regular in-school disciplinary procedure
unless it would be inconsistent with the child's IEP or with the IDEA's student
discipline protections for children with disabilities. Alternatively, the teacher may
request a review of the child's IEP, behavior plan, or both to consider changes in
services or educational placement. In making any such determination for
educational placement or a plan of discipline for the child, the IEP team shall apply
the rules promulgated by the state board regarding IEP reviews and school
discipline procedures and protections for children with disabilities as specified by
the IDEA and its implementing regulations.
(10) (Deleted by amendment, L. 2006, p. 325, � 8, effective August 7, 2006.)