22-006 Code Vt. R. 22-000-006-X - SPECIAL EDUCATION RULES (2360-2369)

Introduction.

INDIVIDUALS WITH DISABILITIES EDUCATION ACT 2004

The Individuals with Disabilities Education Act (IDEA), first enacted in 1975 and most recently revised in 2004, is a federal law governing how State provide accommodations, and services to support children and students with disabilities in their education.

IDEA is composed of four parts:

Part A - General Provisions

* Part B - Assistance for Education of All Children with Disabilities (ages three through 21)

* Part C - Infants and Toddlers with Disabilities (birth up to age three)

* Part D - National Activities to Improve Education of Children with Disabilities

These Rules relate specifically to Part C and Part B of IDEA and also provide reference to other pertinent federal and State Rules governing special education in Vermont. Major Rules Sections are organized based on chronology:

(1) General - Vermont Special Education Rules

(2) Part C - Rules governing services to children birth up to age three

(3) Part B - Rules governing services to students ages three through 21

(4) Supplemental Rules Pertinent to Special Education and Section 504 of the Rehabilitation Act of 1975

GENERAL PROVISIONS OF VERMONT'S SPECIAL EDUCATION RULES

2360 SPECIAL EDUCATION

2360.1 Statement of Purpose.

These rules are designed to ensure that:

(a) Eligible Vermont students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; in accordance with state and federal laws and regulations and in a cost-effective manner; and

(b) The rights of children with disabilities and their parents are protected.

2360.2 Free Appropriate Public Education (FAPE) (34 Code of Federal Regulations (C.F.R.) § 300.101 ).

These rules implement the Individuals with Disabilities Education Improvement Act (IDEA), as amended. These rules provide for the education of children and students between the ages of three through 21, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in Rule 4313. The Agency may use whatever State, local, federal, and private sources of support are available in the State to meet the requirements of this part. For example, if it is necessary to place a child with a disability in a residential facility, the State could use joint agreements between the agencies involved for sharing the cost of that placement. Nothing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability. Consistent with Rule 2363.1 the Agency shall ensure that there is no delay in implementing a child's IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.

2360.2.1 FAPE for children beginning at age three ( 34 C.F.R. § 300.101 )

An eligible child shall be entitled to a free appropriate public education beginning no later than the child's third birthday and continuing, unless otherwise provided herein, through 21 years of age. An individualized education program (IEP), rather than an individualized family service plan (IFSP/One Plan), shall be in effect for an eligible child by his or her third birthday. If a child's third birthday occurs during the summer, the child's IEP team shall determine the date when services under the IEP will begin.

2360.2.2 FAPE for students who have graduated ( 34 C.F.R. § 300.102(a)(3) )

A student who has graduated from high school with a regular high school diploma shall not be entitled to a FAPE. A student who has not yet graduated and whose entitlement to a FAPE ends because the upper age limit of eligibility is reached as described in Rule 2360.2, may be allowed to complete the remaining academic year with IEP team approval and approval from the Agency of Education.

2360.2.3 FAPE for students who have dropped out of school:

If a student drops out of school, that student may return at any time and request to be provided with a FAPE until the student graduates with a high school diploma or the student's entitlement to a FAPE ends because the upper age limit of eligibility is reached as described in Rule 2360.2.

2360.2.4 FAPE for children advancing from grade to grade ( 34 C.F.R. § 300.101(c) )

Each LEA shall provide a FAPE to any individual child with a disability, who is eligible for special education, even though the child has not failed or been retained in a course or grade and is advancing from grade to grade. The determination that a child advancing from grade to grade may be eligible for special education shall be made on an individual basis by the child's Evaluation Planning Team (EPT) or IEP team.

2360.2.5 FA P E for students who are incarcerated in adult correctional facilities:

(a) For a person between the ages of 18 through age 21:

(1) If a person in his or her last educational placement before incarceration had not been identified as a child with a disability who was eligible for special education and did not have an IEP in place, the Department of Corrections will not be mandated to provide a FAPE.

(i) The Department of Corrections shall make reasonable efforts to obtain and review whatever information is needed to determine that the incarcerated individual has not been identified as a child eligible for special education and did not have an IEP in his or her last educational placement prior to incarceration in an adult correctional facility.

(2) A person who is incarcerated shall be entitled to a FAPE if:

(i) The person was provided services through an IEP before incarceration;

(ii) The person had been provided services through an IEP, had left school, then was incarcerated; or

(iii) The person had not been provided services through an IEP, but had been identified as a child with a disability who was eligible for special education.

(3) The following requirements do not apply to incarcerated students aged 18 through 21 ( 34 C.F.R. § 300.324 ):

(i) The requirement to participate in state or district-wide assessment of student achievement programs; and

(ii) The IEP requirements for transition planning and transition services, if the inmate will reach the upper age limit for a FAPE before release from prison based on consideration of sentence and eligibility for early release.

(4) Modifications of IEP or placement.

(i) The IEP team may modify the student's IEP or placement if the Department of Corrections has demonstrated a bona fide security or other compelling interest that cannot otherwise be accommodated.

(ii) The LRE requirements of Rule 2364 do not apply to incarcerated students on IEPs.

(b) For incarcerated persons under the age of 18, the Department of Corrections shall ensure that at intake, a screening occurs to identify those who have a disability or who are suspected of having a disability and who are in need of special education. Those who are in need of special education shall be provided with an IEP and re-evaluations as prescribed under Rule 2362.

2360.2.6 Residential Placement ( 34 C.F.R. § 300.104 )

If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, shall be at no cost to the parents of the child.

2360.2.7 Assistive Technology ( 34 C.F.R. § 300.105 )

(a) Each LEA shall ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in Rule 2361.1, are made available to a student with a disability if required as a part of the student's:

(1) Special education services under Rule 2360.2.12;

(2) Related services under Rule 2360.2.16; or

(3) Supplementary aids and services under Rules 2361.1.

(b) 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 student's IEP team determines that the student needs access to those devices in those settings in order to receive FAPE ( 34 C.F.R. § 300.105(b) ).

(c) A plan to ensure that all instructional materials to be used are available in a usable alternative format which shall meet the National Instructional Materials Accessibility Standard (NIMAS); in accordance with Appendix C to part 300 of title 34 of the Code of Federal Regulations for each student with a disability in accordance with that student's IEP. Such material shall be delivered in a timely manner. A "timely manner" shall mean that schools will ensure that students with print disabilities have access to special instructional materials at the same time as students without print disabilities.

2360.2.8 Extended School Year Services ( 34 C.F.R. § 300.106 )

Each LEA shall ensure that Extended School Year Services (ESY) are available as necessary to provide FAPE consistent with Rule 2363.7 and at no cost to the parents of the child.

2360.2.9 Non-academic services ( 34 C.F.R. § 300.107 )

(a) Each LEA shall take steps including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP team to provide non-academic and extra-curricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

(b) Non-academic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the LEA, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the LEA and assistance in making outside employment available.

2360.2.10 Physical education ( 34 C.F.R. § 300.108 )

Each LEA shall:

(a) Provide physical education services, specially designed if necessary, that shall be made available to every child with a disability receiving FAPE unless the LEA enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

(b) Afford the opportunity to each eligible child to participate in the regular physical education program available to nondisabled children unless--

(1) The child is enrolled full time in a separate facility; or

(2) The child needs specially designed physical education as prescribed in the child's IEP.

(c) Special physical education. If specially designed physical education is prescribed in a child's IEP, the LEA responsible for the education of that child shall provide the services directly or make arrangements for those services to be provided through other public or private programs.

(d) Education in separate facilities. The LEA responsible for the education of an eligible child who is enrolled in a separate facility shall ensure that the child receives appropriate physical education services in compliance with this section.

2360.2.11 Program Options ( 34 C.F.R. § 300.110 )

Each LEA shall ensure that children receiving special education have available to them the variety of educational programs and services available to nondisabled children in the LEA, including art, music, industrial arts, consumer and homemaking education, and vocational education.

2360.2.12 Special Education Services ( 34 C.F.R. § 300.39 )

(a) Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and instruction in physical education. Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child's disability, and to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the State that apply to all children.

(b) Special education includes each of the following, if the services otherwise meets the requirements of subsection (a):

(1) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards;

(2) Travel training;

(3) Vocational education; and

(4) Co-teaching.

(c) Individual special education terms defined. The terms in this definition are defined as follows:

(1) At no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.

(2) Physical education means--

(i) The development of--

(A) Physical and motor fitness;

(B) Fundamental motor skills and patterns; and

(C) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports); and

(ii) Includes special physical education, adapted physical education, movement education, and motor development.

(3) Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to--

(i) Develop an awareness of the environment in which they live; and

(ii) Learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community).

(4) Vocational education or technical education means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career not requiring a baccalaureate or advanced degree.

(5) Co-teaching services is the delivery of special education services in the general education classroom provided jointly by the general education classroom teacher and a special education teacher.

(i) By selecting the co-teaching services model, the IEP team has determined that there is no compelling reason why the child's instruction cannot be provided jointly in the general education classroom. The general education classroom teacher shall be an active participant in IEP meetings.

(ii) The general education and special education teachers will review and document each child's progress towards course objectives and IEP goals.

(iii) Should a progress review at any grading period indicate that a child is in danger of failing a course or is not making satisfactory progress towards IEP goals, the IEP team shall meet immediately to:

(A) Determine continued co-teaching services or change of placement, and

(B) Revise the IEP as appropriate.

(iv) In order to offer co-teaching services, the LEA must complete a plan for implementation which includes continuous professional development and submit the plan to the Vermont Agency of Education for approval.

(d) To ensure successful post-secondary transition, transition services may be special education, if provided as specially designed instruction, or related services, if required to assist a student to benefit from special education.

(1) "Transition services" means a coordinated set of activities for a child with a disability that:

(i) Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability, and to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(ii) Is based on the individual student's needs, taking into account the student's strengths, preferences, and interests; and includes:

(A) Instruction;

(B) Related services;

(C) Community experiences;

(D) The development of employment and other post-school adult living objectives; and

(E) If appropriate, acquisition of daily living skills and functional vocational evaluation.

2360.2.13 Personnel Qualifications

(a) The Vermont Agency of Education has established and maintains qualifications to ensure that personnel necessary to carry out this part are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.

(b) Related services personnel and paraprofessionals: The qualifications under subsection (a) include qualifications for related services personnel and paraprofessionals that:

(1) Are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services;

(2) Ensure that related services personnel who deliver services in their discipline or profession meet the requirements of subsection(1) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(3) Allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this part to be used to assist in the provision of special education and related services to children with disabilities.

(c) Policy: In implementing this section, the Vermont Agency of Education has a policy that includes a requirement that responsible LEAs in the State take measurable steps to recruit, hire, train, and retain highly qualified personnel to provide special education and related services under this part to children with disabilities.

2360.2.14 Required Forms

The Secretary shall develop, make available, and publish a list of required and suggested special education forms for use by LEAs in implementing special education and related services. Responsible agencies shall use the special education forms, which the Secretary designates for required use. The forms provided by the Secretary shall not require more paperwork than is required by federal law and regulation.

2360.2.15 Use of Insurance ( 34 C.F.R. § 154. )

(a) Nothing in these regulations or the regulations implementing IDEA is intended to relieve an insurer, Medicaid, or other third party, from an otherwise valid obligation to provide or pay for services to a student who is eligible for special education. An LEA shall use funds from the State Medicaid reimbursement administrative special fund in accordance with 16 V.S.A. § 2959a(e).

(1) Children with disabilities who are covered by public insurance.

(i) An LEA may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under IDEA Part B, as permitted under the public benefits or insurance program, except as provided in paragraph (1)(ii) of this section.

(ii) With regard to services required to provide FAPE to an eligible child under IDEA Part B, the LEA:

(A) May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under these rules;

(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 IDEA Part B, but pursuant to subsection (4)(ii) below may pay the cost that the parent otherwise would be required to pay;

(C) May not use a child's benefits under a public benefits or insurance program if that use would

1) Decrease available lifetime coverage or any other insured benefit;

2) 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 child outside of the time the child is in school;

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

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

(D) Shall obtain informed written parental consent, consistent with Rule 2365.1.3 with notification to parents that the parents' refusal to allow access to their public benefits or insurance does not relieve the LEA of its responsibility to ensure that all required services are provided at no cost to the parents.

(2) Children with disabilities who are covered by private insurance.

(i) With regard to services required to provide FAPE to an eligible child under IDEA Part B, an LEA may access a parent's private insurance proceeds only if the parent provides informed written consent consistent with Rule 2365.1.3.

(ii) Each time the LEA proposes to access the parent's private insurance proceeds, the agency shall

(A) Obtain informed written parental consent consistent with (2)(i); and

(B) Inform the parents that their refusal to permit the LEA to access their private insurance does not relieve the LEA of its responsibility to ensure that all required services are provided at no cost to the parents.

(3) Use of Part B funds.

(i) If an LEA is unable to obtain parental consent to use the parent's private insurance, or public insurance when the parent would incur a cost for a specified service required under this part, to ensure FAPE the LEA may use its Part B funds to pay for the service.

(ii) To avoid financial cost to parents who otherwise would consent to use private insurance, or public insurance if the parent would incur a cost, the LEA may use its Part B funds to pay the cost that the parents otherwise would have to pay to use the parent's insurance (e.g., the deductible or co-pay amounts).

(4) Proceeds from public or private insurance.

(i) Proceeds from public or private insurance will not be treated as program income for purposes of 34 C.F.R. § 80.25, Education Agency General Administrative Regulations (EDGAR).

(ii) If an LEA spends reimbursements from federal funds (e.g., Medicaid) for services under IDEA Part B, those funds will not be considered "State or local" funds for purposes of the maintenance of effort provisions in 34 C.F.R. § 300.163 Maintenance of State Financial Support and § 300.203 Maintenance of Effort obligation for LEAs.

(5) Nothing in these rules should be construed to alter the requirements imposed on a State Medicaid agency, or any other agency administering a public insurance program by federal statute, regulations, or policy under title XIX, or title XXI of the Social Security Act, 42 U.S.C. § 1396 through § 1396.v and 42 U.S.C. § 1397aa through § 1397.jj, or any other public benefits or insurance program.

2360.2.16 Related Services ( 34 C.F.R. § 300.34 )

(a) The term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child who requires special education services to benefit from his or her special education.

(b) Exception. Except as provided in Rule 2360.2.18, related services do not include a medical device that is surgically implanted, the optimization of device functioning, maintenance of the device, or the replacement of that device.

(c) A child will not be designated as a child who is eligible for special education, if the child needs only a related service, but not special education services.

(d) Related services shall include, but are not limited to:

(1) Audiology that includes:

(i) Identification of children with hearing loss;

(ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

(iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation;

(iv) Creation and administration of programs for prevention of hearing loss;

(v) Counseling and guidance of children, parents, and teachers regarding hearing loss; and

(vi) Determination of children's needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.

(2) Counseling services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.

(3) Early identification and assessment of disabilities in children.

(4) Interpreting services, as used with respect to children who are deaf or hard of hearing, includes oral transliteration services, cued language transliteration services, sign language transliteration services, sign language interpreting services, transcription services, such as communication access real-time translation (CART), C-Print, and TypeWell, and special interpretive services for children who are deaf-blind.

(5) Medical services provided by a licensed physician to determine a child's medically related disability that results in the child's need for special education and related services.

(6) Occupational therapy is:

(i) Services provided by a qualified occupational therapist; and

(ii) Includes:

(A) Improving, developing, or restoring functions impaired or lost through illness, injury, or deprivation;

(B) Improving ability to perform tasks for independent functioning if functions are impaired or lost; and

(C) Preventing, through early intervention, initial or further impairment or loss of function.

(7) Orientation and mobility services are:

(i) Services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community; and

(ii) Travel training instruction, and teaching students the following, as appropriate:

(A) Spatial and environmental concepts and use of information received by the senses (such as sound, temperature, and vibrations) to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);

(B) The use of the long cane or a service animal to supplement visual travel skills or as a tool for safely negotiating the environment for students with no available travel vision;

(C) To understand and use remaining vision and distance low vision aids; and

(D) Other concepts, techniques, and tools.

(8) Parent counseling and training as follows:

(i) Assisting parents in understanding the special needs of their child;

(ii) Providing parents with information about child development; and

(iii) Helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP/One Plan.

(9) Physical therapy services provided by a qualified physical therapist.

(10) Psychological services as in:

(i) Administering psychological and educational tests, and other assessment procedures;

(ii) Interpreting assessment results;

(iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning;

(iv) Consulting with other staff members in planning school programs to meet the special educational needs of children as indicated by psychological tests, interviews, direct observation, and behavioral evaluations;

(v) Planning and managing a program of psychological services, including psychological counseling for children and parents; and

(vi) Assisting in developing positive behavioral intervention strategies.

(11) Recreation includes:

(i) Assessment of leisure function;

(ii) Therapeutic recreation services;

(iii) Recreation programs in schools and community agencies; and

(iv) Leisure education.

(12) Rehabilitation counseling services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to a student with a disability by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.

(13) School nurse services provided by a qualified school nurse, designed to enable a child with a disability to receive FAPE as described in the child's IEP.

(14) Social work services in schools include:

(i) Preparing a social or developmental history on a child with a disability;

(ii) Group and individual counseling with the child and family;

(iii) Working in partnership with parents and others on those problems in a child's living situation (home, school, and community) that affect the child's adjustment in school;

(iv) Mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program; and

(v) Assisting in developing positive behavioral intervention strategies.

(15) Transportation includes:

(i) Travel to and from school and between schools;

(ii) Travel in and around school buildings; and

(iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.

(16) Speech-language pathology services include:

(i) Provision of speech and language services for the habilitation or prevention of communicative impairments; and

(ii) Counseling and guidance of parents, children, and teachers regarding speech and language impairments.

(17) Transition services may be related services, if required to assist a child to benefit from special education.

2360.2.17 Individual Education Programs (IEP) ( 34 C.F.R. § 300.112 )

An IEP shall be developed, reviewed, and revised for each child with a disability consistent with Rule 2363.

2360.2.18 Routine checking of hearing aids and external components of surgically implanted medical devices ( 34 C.F.R. § 300.113 )

(a) Hearing Aids

(1) Each LEA shall ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.

(b) Surgically Implanted Devices

(1) Each LEA shall ensure that the external components of surgically implanted medical devices are functioning properly.

(2) LEAs are 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.

2360.3 Child Find ( 34 C.F.R. § 300.111 ).

(a) All children and students with disabilities, regardless of the severity of their disability, residing within the State, including children and students with disabilities who are homeless or are in State custody or are vulnerable adults, or are attending independent schools or enrolled in home study, and who are in need of special education and related services shall be identified, located and evaluated.

(b) LEAs are responsible for establishing and implementing a comprehensive Child Find system for children and students from birth through 21 years of age.

(1) Except for students who are parentally placed in independent elementary and secondary schools outside of the LEA of residence, the LEAs are responsible for ensuring Child Find for all students who reside within the LEA.

(2) For students ages five through 21 who are parentally placed in independent elementary and secondary schools outside their LEA of residence, the LEA where the independent school is located shall have Child Find responsibility.

(3) For children birth up to age three, the LEA may fulfill its Child Find responsibility by developing and maintaining a regional agreement with a Children's Integrated Services/Early Intervention (CIS/EI) program or other entities.

(c) Each LEA shall ensure that public notification is given before conducting any significant activity that is designed to identify, locate, and evaluate children and students ages birth through 21. In addition, the AOE shall provide a public notice in major newspapers to inform parents that the information gathered shall be treated confidentially.

(1) All notices shall be available in the native languages of the major population groups within the State; and

(2) The notices shall indicate that information obtained during "Child Find" shall remain confidential for all children and students as required in Rule 2365.2 "Confidentiality of Information and Student Records"; and

(3) The notices shall contain a description of the children or students about whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information; and

(4) The notices shall contain a summary of the policies and procedures that participating agencies shall follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

(5) The notices shall contain a description of the Family Educational Rights and Privacy Act of 1974 (34 C.F.R., Part 99) and implementing regulations.

(d) Each LEA shall annually inform the public regarding the availability of early intervention for children from birth up to age three and special education services for children or students ages three through 21, including:

(1) Children or students who are not enrolled in school;

(2) Children or students attending independent schools or who are enrolled in home study programs;

(3) Children or students who are suspected of having a disability even though they are advancing from grade to grade;

(4) Children or students who are highly mobile such as migrant children; and

(5) Children or students who are homeless or in State custody or who are vulnerable adults.

(e) In addition to posting notices in major newspapers, notification activities may also include the posting of notices on websites, fliers in various locations such as physicians' offices and health centers, radio or television announcements, and community outreach.

(f) Each LEA shall act as a primary referral source to identify, locate, and screen children who may be in need of early intervention services and refer identified children to regional CIS/EI programs. Children who are found to be typically developing based on screening results shall not be considered identified children requiring referral.

(1) For children birth up to age three, the Child Find system shall employ specific elements of public awareness, screening, and referral to regional CIS/EI programs.

(2) For children birth up to age three, the LEA shall act at as a primary referral source and notify regional CIS/EI programs of children who may be in need of a comprehensive multidisciplinary initial evaluation to determine eligibility for Part C services.

(3) For children birth up to age three, the Coordinator of the State's Part C CIS/EI program shall forward to the AOE an annual child count of children being served under Part C.

(g) Each LEA shall identify, locate, and evaluate all children and students, who may be eligible for special education and related services, ages three through 21 residing within the jurisdiction of the responsible agency.

(1) Annually each LEA shall submit to the AOE, in the specified electronic format, data requested regarding children and students ages three through 21 who have been found eligible for special education under the IDEA.

2360.4 Reserved.

PART C VERMONT RULES GOVERNING SERVICES TO CHILDREN BIRTH UP TO AGE THREE

Part C of the Individuals with Disabilities Education Act (IDEA) Serving Children from Birth Up to Age Three

2360.5 Part C Early Intervention Services.

In Vermont, Part C of IDEA is referred to as Children's Integrated Services/Early Intervention (CIS/EI) and is responsible for the provision of early intervention services for eligible children birth up to their third birthday. Part B of IDEA requires LEAs to provide FAPE to eligible children and students from their third birthday through 21 years of age, whereas Part C of IDEA does not require the provision of FAPE. The Agency of Education (AOE) and the Agency of Human Services (AHS) serve as co-lead agencies in Vermont for the implementation of early intervention services under Part C of IDEA.

2360.5.1 Part C and CIS/EI Definitions

(a) The following definitions apply to Vermont CIS/EI for use in implementing the State's early intervention program:

(1) Child means an individual under the age of six.

(2) CIS/EI, the acronym for Children's Integrated Services/Early Intervention (CIS/EI), provides services under Part C of IDEA and is a federally mandated system of early intervention services for children birth up to age three with developmental delays or medical conditions that may lead to developmental delays.

(3) Consent means:

(i) Parent(s) has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native language;

(ii) Parent(s) understands and agrees in writing to the carrying out of the activity for which the parent's consent is sought, and the consent form describes that activity and lists the early intervention records (if any) that will be released and to whom they will be released;

(iii) Parent(s) understands that the granting of consent is voluntary on the part of the parent, and may be revoked at any time; and

(iv) If a parent revokes consent, that revocation is not retroactive (i.e., it does not apply to an action that occurred before the consent was revoked).

(4) Day means calendar day, unless otherwise indicated.

(5) Developmental Delay is defined as an observable and measurable delay as determined by state approved diagnostic instruments, other appropriate measures including observations, medical records or other records deemed necessary and procedures, emphasizing the use of informed clinical opinion. The delay must be defined in one or more of the following areas: cognitive; communication; adaptive; physical, including vision and hearing; and social or emotional development.

(6) Essential Early Education (EEE) is IDEA Part B Early Childhood Special Education services for children ages three up to six. Special education and related services are provided by LEAs to ensure children receive age appropriate services within inclusive early childhood settings, including the child's home, to the extent possible.

(7) Evaluation of the Child and Assessment of the Child and Family:

(i) Evaluations are procedures used by qualified personnel to determine a child's initial and continuing eligibility under these Rules, consistent with the definition of child with a disability.

(ii) Initial Evaluation determines a child's initial eligibility for Part C services and must be completed within the 45-day timeline from date of referral.

(iii) Assessment is an ongoing process, by qualified personnel, to identify the child's unique strengths and needs and the early intervention services appropriate to meet those needs throughout the period of the child's eligibility.

(8) Early Intervention Records are records pertaining to a child receiving services that are required to be collected and maintained pursuant to IDEA Part C.

(9) Early Intervention Services are developmental services provided to a child with a disability that:

(i) Are provided under public supervision;

(ii) Are selected in collaboration with the parents;

(iii) Are provided at no cost, except where the system of payments policy includes fees;

(iv) Are designed to meet the developmental needs of a child with a disability and the needs of the family to assist appropriately in the child's development as identified in the following areas: physical, cognitive, communication, social, emotional, or adaptive development;

(v) Meet the standards of the State in which the early intervention services are provided, including the requirements of Part C of the IDEA;

(vi) Are provided by qualified personnel;

(vii) Are provided in natural environments to the maximum extent appropriate; and

(viii) Are provided in accordance with the IFSP/One Plan as defined in these Rules.

(10) Early Intervention Service Provider is referred to as "provider," in these rules and means an entity (whether public, private, or nonprofit) or an individual that provides services under Part C of the IDEA, whether or not the entity or individual receives federal funds under Part C of the IDEA.

(11) Educational Surrogate Parent is an individual appointed by the AOE to ensure the rights of the child and student are protected when:

(i) The parents of the child or student are not known or cannot be located after reasonable efforts;

(ii) The child or student is in state custody through the Department of Children and Families or has a public guardian appointed by a Vermont court ( 18 V.S.A. §§ 9301-9316 ); or

(iii) The child or student is an unaccompanied homeless youth as defined in § 725.(6) of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. § 11434a(6) ) ( 34 C.F.R. § 300.519(a)(4) )

(12) Individualized Family Service Plan (IFSP/One Plan) is a written plan for providing early intervention services to a child with a disability and the child's family that:

(i) Is based on evaluation and assessment results;

(ii) Includes content required as described in these rules;

(iii) Is implemented as soon as possible once parental consent for the early intervention services in the IFSP is obtained; and

(iv) Is developed in accordance with the IFSP procedures set forth in Rule 2360.5.6.

One Plan refers to Vermont's revised IFSP and meets all IDEA Part C requirements.

(13) Informed Clinical Opinion makes use of qualitative and quantitative information to assist in forming a determination regarding difficult-to-measure aspects of current developmental status and the potential need for early intervention. Qualified personnel must use informed clinical opinions when conducting an evaluation and assessment of the child in order to make a recommendation as to initial and continuing eligibility for services under Part C and as a basis for planning services to meet child and family needs.

(14) Method, Length, Frequency and Intensity, and Duration:

(i) Method means how a service is provided (i.e., whether the service is provided through consultation, family education, and/or direct service);

(ii) Length means the length of time the service is provided during each session of that service (such as an hour or other specified time period);

(iii) Frequency and intensity mean the number of days or sessions that a service will be provided, and whether the service is provided on an individual or group basis; and

(iv) Duration means projecting when a given service will no longer be needed (such as when the child is expected to achieve the results or outcomes in his or her IFSP/One Plan).

(15) Multidisciplinary is the involvement of two or more separate disciplines or professions with respect to:

(i) Evaluation of the child and assessments of the child and family may include one individual who is qualified in more than one discipline or profession; and

(ii) Multidisciplinary IFSP/One Plan Team must include the involvement of the parent and two or more individuals from separate disciplines or professions, one of whom must be the Service Coordinator.

(16) Native Language with respect to an individual who has limited English proficiency, means:

(i) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child; and

(ii) For evaluations and assessments conducted, the language normally used by the child, if determined developmentally appropriate for the child by qualified personnel conducting the evaluation or assessment.

Native language, when used with respect to an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, means the mode of communication that is normally used by the individual (such as sign language, Braille, or oral communication).

(17) Natural Environments are settings that are typical for a same aged child without a disability and may include the home or community settings.

(18) Parent means:

(i) A biological or adoptive parent of a child or student; when attempting to act as the parent and when more than one party is qualified to act as a parent, must be presumed to be the parent unless the biological or adoptive parent does not have legal authority to make educational or early intervention services decisions for the child or student;

(ii) A foster parent, or developmental home provider who has been appointed the educational surrogate parent by the Vermont Educational Surrogate Parent Program; or

(iii) A guardian generally authorized to act as the child's or student's parent, or authorized to make early intervention, education, health or developmental decisions for the child or student (but not the State if the child or student is a ward of the State);

(iv) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child or student lives, or an individual who is legally responsible for the child or student's welfare;

(v) An educational surrogate parent who has been appointed by the Agency of Education; or

(vi) If a judicial decree or order identifies a specific individual to act as the "parent" of a child or student or to make educational decisions on behalf of a child or student, then such individual shall be determined to be the "parent" for purposes of this section, except that the LEA that provides education or care for the child or student may not act as the parent.

(19) Personally Identifiable Information is information that includes:

(i) The name of the child, the child's parent, or other family member;

(ii) The address of the child;

(iii) A personal identifier, such as the child's or parent's social security number; or

(iv) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty, such as the child's date of birth or disability.

(20) Qualified Personnel are individuals who have met State approved or recognized certification, licensing, registration, or other comparable requirements that apply to the areas in which the individuals are conducting evaluations or assessments or providing early intervention services. Vermont State approved early interventionists shall hold at least a bachelor's degree in early childhood or a related field and meet any other current requirements.

(21) Screening is a process using State approved screening tools and appropriate methods implemented by qualified personnel and/or primary referral source to identify, at the earliest possible age, a child suspected of having a developmental delay and/or disability and in need of an initial evaluation.

(22) Service Coordination is a service provided by a Service Coordinator to assist a child and the child's family to receive early intervention services and parental rights. Each eligible child and the child's family must be provided with a Service Coordinator who is responsible for coordinating all services across agency lines and serving as the single point of contact in helping parents to obtain the services and assistance they need. Service coordination is an active, ongoing process that involves:

(i) Assisting parents of eligible children in gaining access to, and coordinating the provision of the early intervention services; and,

(ii) Coordinating other services identified in the IFSP/One Plan that are needed by, or being provided to, the child with a disability and their family.

Specific Service Coordination activities include:

(A) Conducting the family assessment, including interviewing the family;

(B) Collecting information on the child's development, including observations of the child;

(C) Assisting parents of eligible children in obtaining access to needed early intervention services and other services identified in the IFSP/One Plan, including making referrals to providers for needed services and scheduling appointments for eligible children and their families;

(D) Coordinating the provision of early intervention services and other services (such as educational, social, and medical services that are not provided for diagnostic or evaluative purposes) that the child needs or is being provided;

(E) Coordinating evaluations and assessments;

(F) Facilitating and participating in the development, review, and evaluation of IFSP/One Plans;

(G) Conducting referral and other activities to assist families in identifying available providers;

(H) Coordinating, facilitating, and monitoring the delivery of services to ensure that the services are provided in a timely manner;

(I) Conducting follow-up activities to determine that appropriate Part C services are being provided;

(J) Informing families of their parental rights, and related resources;

(K) Coordinating the funding sources for services; and

(L) Facilitating the development of a transition plan to EEE or, if appropriate, to other services.

(23) Specialized Instruction is defined as:

(i) The designing of learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction;

(ii) Curriculum and intervention planning, including the planned interaction of personnel, materials, time, and space that leads to achieving the outcomes in the IFSP/One Plan;

(iii) Providing families with information, skills, and support related to enhancing the development of the child; and

(iv) Working with the child to enhance the child's development.

(24) Ward of the State is a child who, as determined by the State where the child resides, is:

(i) A foster child, unless the child has a foster parent who meets the definition of a parent.

(ii) A ward of the State; or

(iii) In the custody of a public child welfare agency.

2360.5.2 Public Awareness and Child Find (C.F.R. §§ 303.300 - 303.303; § 303.311 )

(a) By way of the Vermont Part C Interagency Agreement for the provision of Early Intervention Services, the role and responsibilities of regional CIS/EI programs and LEAs shall be detailed and maintained in a regional agreement. LEAs shall act as a primary referral source and participating partner to ensure the provision of early intervention services under IDEA Part C. Each regional CIS/EI program shall serve as the central point of referral for children ages birth up to three years of age who may require early intervention services.

(1) Vermont's comprehensive Part C Child Find system includes policies and procedures that are coordinated with all other major efforts to locate and identify children by other State agencies responsible for administering the various health, social service programs, and education to ensure all children who may be eligible for services under Part C are identified, located, and evaluated including:

(i) Native American children residing on a reservation geographically located in the State;

(ii) Children who are homeless, in foster care, or wards of the State; and

(iii) Children who are the subject of a substantiated case of child abuse or neglect; or identified as directly affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug or alcohol exposure.

(2) Regional CIS/EI programs and LEAs shall engage in public awareness and Child Find activities to identify children and their families who may be in need of early intervention services. Regional CIS/EI programs shall prepare, describe, and disseminate materials and information for parents on the availability of early intervention services to all primary referral sources, especially hospitals and physicians.

(3) Vermont's comprehensive referral procedures ensure all children who may be eligible for early intervention services are referred as soon as possible, but in no case more than seven days after the child has been identified for referral. Primary referral sources include but are not limited to:

(i) Hospitals, including prenatal and postnatal care facilities;

(ii) Physicians;

(iii) Parents;

(iv) Childcare programs and early learning programs;

(v) Local Education Agencies (LEA) Child Find efforts that are coordinated between regional CIS/EI programs and LEAs so that:

(A) Each LEA shall act as a primary referral source to locate and screen children who may be suspected of having a developmental delay and/or disability and in need of an initial evaluation to determine eligibility for Part C services. Based on screening results, children who are found to be typically developing do not require a referral for an initial evaluation;

(B) LEAs may employ specific elements of screening;

(C) LEAs shall notify local CIS/EI programs of all children who may be in need of an initial comprehensive multidisciplinary evaluation for eligibility under Part C;

(vi) Public health facilities and social service agencies;

(vii) Other clinic and health care providers;

(viii) Public agencies and staff in the child welfare system including child protection agencies and foster care services and providers;

(ix) Homeless family shelters; and

(x) Domestic violence shelters and agencies.

(4) Specific referral procedures shall be followed for at-risk children who have been identified as the subject of a substantiated case of child abuse or neglect; or is identified as directly affected by illegal substance or alcohol abuse or withdrawal symptoms resulting from prenatal exposure. (C.F.R § 303.303 ).

2360.5.3 Screening (C.F.R. §§ 303.320, 303.421, 303.420 )

(a) As co-lead agencies, AOE and AHS have adopted procedures outlined in the Part C Interagency Agreement and are specified in regional CIS/EI and LEA agreements, to conduct screenings for children under the age of three suspected of having a disability and may be in need of early intervention services. For children with established diagnosed conditions set forth in § 2360.5.5 screening is not necessary because records establish that the child has a disability and is eligible for Part C services. For children undergoing the screening process, and based on regional agreements, the following must occur:

(1) Provide the parent notice of the intent to screen the child to identify whether the child is suspected of having a disability and include in that notice a description of the parent's right to request an initial evaluation at any time during the screening process;

(2) Parental consent is obtained prior to conducting screening; and

(3) Notice must be provided to the parent if the screening or other available information indicates the child is suspected of having a disability.

(b) The 45day timeline begins upon receipt of referral to the regional CIS/EI program. CIS/EI must appoint a service coordinator and contact the family within two working days of referral.

(c) CIS/EI will review and/or conduct a screening, and if warranted, an initial evaluation of the child and assessment of the child and family. The IFSP/One Plan meeting must be held within 45 days from the date the regional CIS/EI program receives the referral for the child.

(d) If the child is not suspected of having a disability, the CIS/EI provider must ensure that written notice of that determination is provided to the parent, and that the written notice describes the parent's right to request an evaluation.

(e) If the parent of the child requests and consents to an evaluation at any time during the screening process, evaluation of the child must be conducted, even if the CIS/EI provider has determined that the child is not suspected of having a disability.

(f) Screening procedures are activities that are jointly developed in regional agreements and carried out by the regional CIS/EI provider and/or LEA to identify, at the earliest possible age, a child suspected of having a disability and in need of early intervention services; and include the administration of State approved screening tools and methods by qualified personnel.

(g) Condition for Evaluation or Early Intervention Services: For every child under the age of three referred to the regional CIS/EI program or screened in accordance with this section, CIS/EI will:

(1) Provide an evaluation for any child suspected of having a disability or if the parent requests an evaluation even if the child is not suspected of having a disability, and/or

(2) Offer early intervention services to any child who meets the State definition of a child with a disability.

2360.5.4 Evaluation of the Child and Assessment of the Child and Family ( 34 C.F.R. § 303.321 )

(a) CIS/EI must ensure that, subject to obtaining written parental consent, each child under the age of three referred for evaluation or early intervention services and suspected of having a disability, receives:

(1) An eligibility determination based on a timely, comprehensive, multidisciplinary evaluation for initial and/or on-going eligibility and that no single procedure is used as the sole criterion for determining a child's eligibility; or

(2) An eligibility determination based on the child's medical and other records, if those records indicate that the child's level of functioning in one or more of the developmental areas constitutes an observable and measurable developmental delay, and as a result, the child is determined eligible as a child with a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay.

(b) Once the child's eligibility has been established through an initial evaluation of the child and/or through the use of medical or other records, the initial assessment of the child must be conducted by qualified personnel so that the child receives:

(1) A multidisciplinary assessment of the unique strengths and needs of the child and the identification of services appropriate to meet those needs;

(2) A voluntary family-directed assessment of the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of the child. The assessments of the child and family may occur simultaneously with the evaluation to determine initial and/or continuing eligibility and services appropriate to meet the child's needs.

(c) Requirements of Evaluations and Assessments:

(1) Evaluation means the procedures used by qualified personnel to determine a child's initial and continuing eligibility. An initial evaluation refers to the child's evaluation to determine his or her initial eligibility.

(2) Assessment means the ongoing procedures used by qualified personnel to identify the child's unique strengths and needs and the early intervention services appropriate to meet those needs throughout the period of the child's eligibility and includes the assessment of the child, and the assessment of the child's family. Initial assessment refers to the assessment of the child and the family assessment conducted prior to the child's first IFSP/One Plan meeting.

(3) All evaluations and assessments of the child and family must be conducted by qualified personnel in a nondiscriminatory manner and be selected and administered so as not to be racially or culturally discriminatory.

(4) All evaluations and assessments of a child and family must be conducted in the native language of the child and family members being assessed, unless it is clearly not feasible to do so.

(5) Qualified personnel must use informed clinical opinion when conducting an evaluation and assessment of the child. In addition, the regional CIS/EI programs must ensure that informed clinical opinion may be used as an independent basis to establish a child's eligibility under this part even when other instruments do not establish eligibility; however, in no event may informed clinical opinion be used to negate the results of evaluation instruments used to establish eligibility.

2360.5.4.1 Procedures for Evaluation of the Child

(a) An evaluation of the child must be conducted by qualified personnel in a nondiscriminatory manner, selected and administered so as not to be racially or culturally discriminatory in order to determine the child's initial or continuing eligibility. In conducting a multidisciplinary evaluation, no single procedure may be used as the sole criterion for determining a child's eligibility under this part.

(1) The evaluation of the child must include the following:

(i) Administering a State approved diagnostic instrument;

(ii) Documenting the child's history (including interviewing the parent);

(iii) Identifying the child's level of functioning in each of the developmental areas;

(iv) Gathering information from other sources such as family members, other caregivers, medical providers, social workers, and educators, if necessary, to understand the full scope of the child's unique strengths and needs; and

(v) Reviewing medical, educational, or other records.

2360.5.4.2 Procedures for Initial and Ongoing Assessment of the Child

An assessment of each child with a disability must be conducted by qualified personnel in order to identify the child's unique strengths and needs and the early intervention services appropriate to meet those needs. The assessment of the child must include the following:

(a) A review of the results of the evaluation conducted;

(b) Personal observations of the child; and

(c) An identification of the child's functional needs in each of the developmental areas.

2360.5.4.3 Procedures for Assessment of the Family

A family-directed assessment must be conducted by qualified personnel in order to identify the family's resources, priorities, and concerns and the supports and services necessary to enhance the family's capacity to meet the developmental needs of the family's child with a disability.

The family-directed assessment must:

(a) Be voluntary on the part of each family member participating in the assessment;

(b) Be based on information obtained through an assessment tool and also through a routines-based interview with those family members who elect to participate in the assessment; and

(c) Include the family's description of its resources, priorities, and concerns related to enhancing the child's development.

2360.5.5 Eligibility ( 34 C.F.R. § 303.21 )

(a) Child with a disability means a child under three years of age who needs early intervention services because:

(1) The child is experiencing an observable and measurable developmental delay, as measured by State approved diagnostic instruments and procedures, in one or more of the following areas:

(i) Cognitive development;

(ii) Physical development, including vision and hearing;

(iii) Communication development;

(iv) Social or emotional development;

(v) Adaptive development.

(2) The child has a diagnosed physical or mental condition that:

(i) Has a high probability of resulting in developmental delay; and

(ii) Includes conditions such as, but not limited to, chromosomal abnormalities; genetic or congenital disorders; sensory impairments; inborn errors of metabolism; disorders reflecting disturbance of the development of the nervous system; congenital infections; severe attachment disorders; disorders secondary to exposure to toxic substances, including fetal alcohol syndrome; and severe complications at birth.

(b) For the purposes of this part, 'developmental delay' is defined as a clearly observable and measurable delay in one or more developmental areas (as stated above) and the delayed development shall be at the level that the child's future success in home, school or community cannot be assured without the provision of early intervention services.

(c) Eligibility Determination

(1) A CIS/EI multidisciplinary team, including parents, shall determine a child's eligibility to receive early intervention services.

(2) The child's file or IFSP/One Plan shall clearly document participants involved and the evaluation and procedures used to inform the eligibility determination and provision of early intervention services.

(d) Intrastate and Interstate Transfer Eligibility

(1) A child determined eligible for early intervention services in one CIS/EI region who relocates to another CIS/EI region continues to be eligible for services without need for another evaluation or determination of eligibility.

(2) For a child who relocates to Vermont from another State and who has previously been found eligible to receive early intervention services in that State, the regional CIS/EI team shall review Part C eligibility requirements from the sending State as well as any records forwarded to the regional CIS/EI program in order to determine if the child may be eligible under Vermont's Part C eligibility requirements. If additional evaluations are warranted to determine the child's eligibility in Vermont, written parental consent must be obtained prior to any evaluations being conducted.

(e) Determination that a Child is Not Eligible

If, based on the initial evaluation, the regional CIS/EI team determines that a child is not eligible under this part, the regional CIS/EI team must provide the parent with prior written notice regarding this determination, and include in the notice information about the parent's right to dispute the eligibility determination through dispute resolution mechanisms under Rule 2365.

2360.5.6 Individualized Family Service Plan (IFSP)/One Plan ( 34 C.F.R. §§ 303.340-303.346 )

The regional CIS/EI programs shall ensure the development, review, and implementation of an IFSP/One Plan. The plan shall be developed by a multidisciplinary team, which includes the parent for each eligible child. Changes or revisions to the plan must be a team decision.

2360.5.6.1 IFSP/One Plan Meetings and Reviews

(a) For a child referred to and subsequently found eligible for the Part C program, a meeting to develop the initial IFSP/One Plan must be conducted within 45 days of receipt of the initial referral to Part C.

(b) On at least an annual basis, a meeting shall be conducted to evaluate and revise as appropriate, the IFSP/One Plan for the child and the child's family. The results of any current evaluation and other information available from the assessments of the child and family shall be used in determining the early intervention services that are needed and will be provided.

(c) A periodic review of the IFSP/One Plan for a child and the child's family shall occur at least every six months, or more frequently if needed, or requested by the family. The six month review need not take place at a formal meeting but may occur through other means that are acceptable to the parents and other participants. The purpose of the six-month review is to determine:

(1) Progress made toward achieving the outcomes identified in the IFSP/One Plan, and

(2) Whether modification or revision of the outcomes or services is needed.

(d) IFSP/One Plan meetings shall be:

(1) Held at least annually;

(2) Held in settings and at times that are accessible and convenient for families;

(3) Held in the native language of the family or other mode of communication used by the family, unless it is clearly not feasible to do so;

(4) Arranged with, and written notice provided to, the family and other participants early enough before the meeting date to ensure that they will be able to attend;

(5) Attended at minimum by:

(i) The parent(s) of the child; and

(ii) The service coordinator.

(6) Also attended by or otherwise include the participation of:

(i) Other family members, as requested by the family;

(ii) An advocate or person outside the family as requested by the family;

(iii) The person(s) directly involved in the evaluation and assessment process; and

(iv) As appropriate, the person(s) who will be providing services to the child and/or the family.

(7) Participation may include:

(i) Sharing information through a telephone call and making pertinent records available; and

(ii) Having a knowledgeable authorized representative attend the meeting.

2360.5.6.2 Contents of IFSP/One Plan

The contents of the IFSP/One Plan shall be fully explained to parents and shall include the following:

(a) A statement of the child's present levels of physical development (including vision, hearing, and health status), cognitive development, communication development, social or emotional development, and adaptive development based upon the information from that child's evaluation, assessments, and other relevant records.

(b) With the concurrence of the family, a statement of the family's resources, priorities, and concerns related to enhancing the development of the child as identified through the assessment of the family;

(c) A statement of the measurable results or measurable outcomes expected to be achieved for the child (including pre and early literacy and language skills, as developmentally appropriate for the child) and family; and the criteria, procedures, and timelines used to determine:

(1) The degree to which progress toward achieving the outcomes identified in the IFSP/One Plan is being made; and

(2) Whether modifications or revisions of the expected outcomes or services identified in the IFSP/One Plan are necessary.

(d) A statement of the specific early intervention services, based on peer reviewed research (to the extent practicable), that are necessary to meet the unique needs of the child and the family to achieve the results or outcomes, including the:

(1) Method of how a service is provided (i.e., whether the service is provided through consultation, family education, and/or direct service);

(2) Length of time the service is provided during each session of that service (such as an hour or other specified time period);

(3) Frequency and intensity (i.e., the number of days and/or sessions that a service will be provided and whether the service is provided on an individual or group basis); and

(4) Projection of the duration of a given service (such as when the child is expected to achieve desired outcomes as stated on his or her IFSP/One Plan).

(e) A statement that each early intervention service shall be provided in the natural environment, to the maximum extent appropriate for the child. If early intervention services cannot be provided within the natural environment for the child, the IFSP/One Plan team (which includes the parent and other team members) shall make a determination of the appropriate setting and include a justification for not providing services within the natural environment.

(f) The location of services (the actual place or places where a service will be provided);

(g) The payment arrangements, if any;

(h) Other services needed, but not required by Part C of the IDEA. To the extent appropriate, the IFSP/One Plan must:

(1) Identify medical and other services that the child or family needs or is receiving through other sources, but that are not required or funded by Part C of the IDEA; and

(2) If those services are not currently being provided, include a description of the steps the Service Coordinator or family may take to assist the child and family in securing those other services;

(i) The projected dates for initiation of each early intervention service, which shall be as soon as possible after the parent consents to that service, and not more than 30 days from receipt of written consent by CIS/EI;

(j) The anticipated duration of each early intervention service;

(k) The name of the Service Coordinator responsible for implementing the early intervention services identified in the child's IFSP/One Plan, including transition services, and coordination with other agencies and persons;

(l) The steps and services to be taken to support the transition of the child from regional CIS/EI services to Part B EEE services to the extent that those services are appropriate, or to other appropriate services (e.g., early childhood community-based settings and services, etc.). The steps for transition must include:

(1) Discussions with, and training of, parents, as appropriate, regarding future placements and other matters related to the child's transition;

(2) Procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting;

(3) Confirmation that Child Find information about the child has been transmitted to the LEA and the State CIS/EI office for transmission to the AOE;

(4) With written parental consent, transmission of other information about the child to the LEA, to ensure continuity of services, including a copy of the most recent evaluation and assessments of the child and family and the most recent IFSP/One Plan; and

(5) Identification of transition services and other activities that the IFSP/One Plan team determines are necessary to support the transition of the child.

2360.5.6.3 Interim IFSP/One Plan Provision of Services Before Evaluation and Assessment Completion ( 34 C.F.R. § 303.345 )

(a) Early intervention services for an eligible child and the child's family may begin before the completion of the initial evaluation and assessment if the following conditions are met:

(1) Informed, written parental consent is obtained;

(2) An interim IFSP/One Plan is developed that includes:

(i) The name of the Service Coordinator who will be responsible for implementing the interim IFSP/One Plan and coordinating with other agencies and persons; and

(ii) The early intervention services that have been determined to be needed immediately by the child and the child's family; and

(3) The initial evaluation and assessment and IFSP/One Plan meeting are completed within 45 days of referral.

2360.5.6.4 Responsibility and Accountability ( 34 C.F.R. § 303.346 )

Each participating agency that has a direct role in the provision of early intervention services is responsible for making a good faith effort to assist each eligible child in achieving the outcomes in the child's IFSP/One Plan. However, Part C of the IDEA does not require that any participating agency be held accountable if an eligible child does not achieve the growth projected in the child's IFSP/One Plan.

2360.5.7 Notifications of Transition at Age Three (C.F.R. § 303.209 )

AOE and AHS have developed policies and procedures that are also included in the Part C Interagency Agreement to ensure a smooth and effective transition for children with disabilities and their families who transition from Part C services to Part B services at age three.

(a) Regional CIS/EI Notification to LEA of Children Potentially Eligible for EEE at Age Three: Between six months and 90 days before the child's third birthday, the regional CIS/EI program will provide written notification (child's name, date of birth, and parent name, address, and telephone number) to the LEA where the child resides that the child on his/her third birthday will reach the age of eligibility for services under IDEA Part B and the IFSP/One Plan team has determined the child is 'potentially eligible' for EEE services.

(1) Potentially Eligible, for the purposes of transition at age three, is determined by the IFSP/One Plan team within six months of a child's third birthday. Evidence is based on on-going assessment measures and use of a State approved diagnostic instrument. A child shall be considered potentially eligible for EEE services if the child demonstrates at least a 25% delay in one or more of the following developmental domains:

(i) Speech and language development (receptive and/or expressive communication; including articulation, fluency, and/or voice);

(ii) Adaptive development;

(iii) Social or emotional development;

(iv) Physical development including gross or fine motor skills; and/or

(v) Cognitive skills such as perception, memory, processing, and reasoning.

(b) Regional CIS/EI Notification to Part C State Office: Between six months and 90 days before the child's third birthday, the regional CIS/EI program will provide written notification (child's name, date of birth, and parent name, address, and telephone number) to the Part C State office only for children who are receiving Part C services and who may be potentially eligible for services under Part B.

(c) Part C State Notification: Between six months and not fewer than 90 days before the child's third birthday, the Part C State office will provide written notification (child's name, date of birth, and parent name, address, and telephone number) to the AOE for children who are receiving Part C services and who are considered potentially eligible for services under Part B. The Part C State office will report this information monthly to the AOE.

2360.5.8 Late Referral Procedures

(a) If the regional CIS/EI program determines that a child is eligible for early intervention services more than 45 days but fewer than 90 days before that child's third birthday the regional CIS/EI must provide transition notification to the LEA where the child resides as soon as possible.

(b) If the regional CIS/EI program determines that a child is eligible for early intervention services more than 45 days but fewer than 90 days before that child's third birthday the regional CIS/EI must provide transition notification as soon as possible to the Part C State office after determining eligibility.

(c) The Part C State office will provide written notification as soon as possible to the AOE for all children determined eligible for early intervention services more than 45 days but fewer than 90 days before their third birthday.

(d) If a child is referred to the regional CIS/EI program fewer than 45 days before their third birthday, the regional CIS/EI program is not required to conduct an initial evaluation, assessment, or initial IFSP meeting. If that child may be potentially eligible for Part B services, the regional CIS/EI, with parental consent, must refer the child to the LEA where the child resides.

(e) If a child is referred to the regional CIS/EI program fewer than 45 days before his/her third birthday and may be potentially eligible for Part B services, the regional CIS/EI program must notify, with parental consent, the Part C State office, LEA, and AOE as soon as possible.

(f) With parental consent, the Part C State office will provide written notification as soon as possible to the AOE for all children referred fewer than 45 days before their third birthday and who may be potentially eligible for Part B services.

2360.5.9 Transition Conference (C.F.R. § 303.209 )

(a) The AOE and AHS shall ensure that regional CIS/EI and LEA representatives participate in transition planning conferences for those children who are considered potentially eligible for Part B EEE services at age three.

(1) With family approval, the regional CIS/EI shall conduct a transition conference for a child with disabilities who is receiving Part C services and who will be exiting the Part C program not fewer than 90 days, and at the discretion of all parties not more than nine months, before the child's third birthday to discuss any services the child may receive under Part B EEE services.

(2) Prior to or at the transition conference, families will be provided information about parental rights and procedural safeguards for Part B.

(3) If a child is not potentially eligible for Part B EEE services, with the family's approval, the regional CIS/EI program shall make reasonable efforts to convene a conference with the family and community-based providers to discuss other appropriate services that the child may receive.

(4) The transition conference must include the regional CIS/EI IFSP/One Plan providers, the family of the child, and an LEA representative.

(5) The transition conference or meeting to develop the transition plan must meet the IFSP/One Plan meeting requirements and that the transition conference and the IFSP/One Plan meeting may be combined.

(b) Procedures for Transition Plan:

AOE and AHS shall ensure that regional CIS/EI and LEA representatives participate in transition planning conferences for children who may be potentially eligible for Part B EEE services. The family's service coordinator is responsible for initiating and scheduling the transition planning conference.

(1) The IFSP/One Plan team, inclusive of the family, shall develop the transition plan and include steps and services to be taken to support the smooth transition of the child from Part C to Part B.

(2) The IFSP/One Plan team shall develop a transition plan, as part of a child's IFSP/One Plan, not fewer than 90 days, but at the discretion of all parties up to nine months, prior to the third birthday for all children exiting Part C. The transition plan shall include the following steps and services:

(i) A review of program options for the child for the period from the child's third birthday through the remainder of the school year;

(ii) Discussion with and training of parents, as appropriate, regarding future options and other matters related to the child's transition;

(iii) Procedures to prepare the child for changes in service delivery, including steps to help the child adjust to and function in a new setting; and

(iv) Identification of transition services and other activities that the IFSP/One Plan Team determines are necessary to support the transition of the child.

2360.5.10 Eligibility for EEE Services at Age Three

(a) In order to ensure a seamless and effective transition for children with disabilities who receive Part C services and are potentially eligible for Part B services, the AOE will ensure that the LEA provides each child entering Part B EEE services from Part C services an Individualized Education Plan (IEP) developed and implemented by the child's third birthday. The IEP shall include all required components as listed in Rule 2363.7.

(b) If a child's birthday occurs during the summer, the child's IEP team shall develop the IEP prior to the end of the current school year in order to have the IEP in effect at the beginning of the new school year. If it is necessary for the child to receive uninterrupted services over the summer months, the IEP team shall determine the date when services begin.

(c) A child shall be eligible for EEE services at age three, if the child received consistent (e.g., one 60 minute intervention session per week) specialized instruction, developmental therapy services, or speech and language services through an IFSP/One Plan and the child:

(1) Demonstrates a 25% developmental delay, as measured by ongoing assessment and use of a State approved diagnostic instrument, administered by qualified professionals, in one or more of the following developmental domains:

(i) Speech and language development (receptive and/or expressive communication; including articulation, fluency, and/or voice);

(ii) Adaptive development;

(iii) Social or emotional development;

(iv) Physical development, including gross or fine motor skills; and/or

(v) Cognitive skills such as perception, memory, processing, and reasoning; or

(2) The child has a medical condition which may result in significant delays by the child's sixth birthday, and the school-based Evaluation Planning Team (EPT) has determined that the child is in need of Part B EEE services.

(d) For the purposes of this section, "medical condition" means a condition diagnosed by a licensed physician such as but not limited to autism, cerebral palsy, Down syndrome, attention deficit disorder with hyperactivity that may result in significant delays by the child's sixth birthday.

(e) If the child previously received Part C services, a meeting notice of the initial IEP meeting will be sent to the CIS/EI Part C service coordinator, or other CIS/EI service representative at the request of the parent.

(f) For all children who transition from CIS/EI Part C services to Part B EEE services, the IEP team must consider the IFSP/One Plan content when developing the initial IEP (including the natural environments statement).

2360.5.10.1 Part C Records Forwarded to LEA:

Within 90 days of the child's third birthday and with parental consent, copies of the following IFSP/One Plan records shall be sent to the LEA where the child resides:

(a) A signed consent from the parent to release identifying information to the LEA;

(b) Evaluation and procedures used to determine child's potential eligibility for Part B EEE services;

(c) IFSP/One Plans;

(d) Pertinent ongoing assessment reports and contact notes.

2360.5.10.2 Consent for Part B Placement and the Initial Provision of Part B Services

For children who transition to Part B EEE services, the parent shall be asked to sign consent for:

(a) Their child's placement under Part B for the period of time between the age of three and the date the initial evaluation under Part B is completed.

(1) The initial consent for evaluation and placement under Part B shall occur when the child's initial evaluation under Part C expires after three years or sooner if requested by the parent or LEA.

(b) Consent for the initial provision of IEP services.

2360.6 Records.

(a) Children's Integrated Services/Early Intervention (CIS/EI) records shall be the property of the co-lead agencies, the AOE and AHS. The child's record at the CIS/EI Program shall be the central record for children referred for early intervention services. Records at the CIS/EI Program shall contain the following:

(1) Record of Access;

(2) Consents for Release of Information;

(3) Consent for Evaluation;

(4) Documentation that parental rights have been given in writing and explained;

(5) Evaluation reports or summaries used to determine eligibility;

(6) Eligibility form;

(7) Written notice of IFSP/One Plan meetings;

(8) All of the child's IFSPs/One Plans;

(9) Information related to IFSP/One Plan reviews; and

(10) Information related to transition planning.

(b) Additional components of the child's record (e.g., summary reports, on-going assessment, evaluation summary, etc.) may be maintained by service providers and copies must be provided to regional CIS/EI Program as part of the child's permanent record.

2360.7 Procedural Safeguards.

If a parent disagrees with the decisions made by the IFSP/One Plan team the parent may pursue any of the dispute resolution options set forth in Rule 2365.

PART B VERMONT RULES GOVERNING SERVICES TO CHILDREN AGES THREE THROUGH 21

Part B of the Individuals with Disabilities Education Act (IDEA) Serving Children and Students Ages Three through 21

2361 PART B -- SERVING CHILDREN/STUDENTS AGES THREE THROUGH 21:

IDEA Part B in Vermont is categorized into two distinct age groups. Children ages three through age five are served through Essential Early Education/Early Childhood Special Education (EEE/ECSE). The second age group, ages six through 21 are students served through the LEA where the student resides.

2361.1 Part B Definitions.

The following definitions shall apply to terminology used throughout Part B of these rules:

(a) Accommodations. Accommodations mean those evaluation procedures, curricula, materials or programmatic adaptations, behavior management interventions, and supplemental aids and services that are necessary for an eligible student to benefit from his or her general education or to participate in non-academic or extra-curricular activities.

(b) Adaptive behavior skills. Adaptive behavior skills are the skills essential to independent functioning, personal responsibility, and social responsibility.

(c) Assistive Technology device. Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term does not include a medical device that is surgically implanted, or the replacement of such device.

(d) Assistive technology service. Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes:

(1) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;

(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;

(3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(5) Training or technical assistance for a child with a disability and/or, if appropriate, that child's family; and

(6) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, and/or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.

(e) Basic skills. Basic skills are those skills enumerated in Rule 2362.

(f) Child. Child means an individual under the age of six and may include an infant or toddler ages birth to three with a disability

(g) Child in state custody. A "child in state custody" means a child placed in custody pursuant to Chapters 49 and 55 of Title 33. A "child in state custody" shall be afforded all rights and protections as a "ward of the State" as provided in 20 U.S.C. § 1401(36).

(h) Child with a disability. In this document, "child with a disability" is a child who has been found eligible for special education and related services consistent with the process found in Rules 2361 and 2362.

(i) Consent. Consent means that:

(1) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication;

(2) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

(3) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

(4) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).

(j) Core curriculum. Core curriculum means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, geography, and physical education which have instructional approaches that are based on scientifically validated research supporting the curriculum's effectiveness and demonstrate a high probability of success for a majority of students.

(k) Day. Whenever a limit of "days" appears within these regulations, the following definitions shall apply:

(1) "Day" is defined as a calendar day, unless stated to be "business day" or "school day".

(2) "Business day" means weekdays, excluding federal and State holidays, unless the latter are specifically included.

(3) "School day" means any day, including partial days, when children attend school for instructional purposes. The term school day has the same meaning for all children in school, including children with and without disabilities.

(l) Educational Surrogate Parent is an individual appointed by the AOE to ensure the rights of the child and student are protected when:

(1) The parents of the child or student are not known or cannot be located after reasonable efforts;

(2) The child or student is in state custody through the Department of Children and Families or has a public guardian appointed by a Vermont court ( 18 V.S.A. §§ 9301-9316 ); or

(3) The child or student is an unaccompanied homeless youth as defined in § 725.(6) of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. § 11434a(6) ) ( 34 C.F.R. § 300.519(a)(4) )

(m) Eligibility. See Rule 2360.5.5 for children under three years of age. See Rule 2361 for children ages three through five. See Rule 2362 for children and students ages six through 21.

(n) Evaluation. Evaluation means procedures used in accordance with Rule 2362 with the following exception: The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.

(o) Evaluation Planning Team (EPT).-Evaluation Planning Team means a group of individuals including the parent that is responsible for developing an evaluation plan and reviewing the results to determine if a student is or continues to be eligible for special education and related services. The membership requirements are the same as those outlined for the IEP team in Rule 2363.3.

(p) Extended School Year Services (ESY). The term extended school year services means special education and related services that are provided to a child with a disability beyond the normal school year of the LEA in accordance with the child's IEP and State standards and at no cost to the parents of the child.

(q) Functional Performance. Functional performance is the acquisition of essential and critical skills needed for children with disabilities to learn specific daily living, personal, social, and employment skills, or the skills needed to increase performance and independence at work, in school, in the home, in the community, for leisure time, and for postsecondary and other lifelong learning opportunities.

(r) Free Appropriate Public Education (FAPE). A FAPE means special education and related services that:

(1) Are provided at public expense, under public supervision and direction, and without charge to the parent or student;

(2) Meet the standards of the State, including the requirements of Part B of the IDEA and include preschool, elementary school, or secondary school education; and

(3) Are provided in conformity with an individualized education program (IEP) that meets the requirements of Rule 2363.

(s) Highly Qualified Special Education Teachers. Highly Qualified Special Education Teachers shall meet one of the following:

(1) Requirements for special education teachers teaching core academic subjects. For any public elementary or secondary school special education teacher teaching core academic subjects, the term highly qualified means that the special education teacher shall carry an endorsement appropriate to the assignment and shall meet the content knowledge requirements for the highest grade level of the students who receive primary instruction from the teacher.

(2) Requirements for special education teachers in general.

(i) When used with respect to any public elementary school or secondary school special education teacher, highly qualified requires that:

(A) The teacher has obtained full State certification as a special education teacher (including certification obtained through alternative routes to certification), and holds a license to teach in the State as a special education teacher;

(B) The teacher does not have provisional special education certification or licensure; and

(C) The teacher holds at least a bachelor's degree.

(ii) A teacher will be considered to meet the standard in paragraph (2)(i) of this section if that teacher is participating in an alternative route to special education certification program under which:

(A) The teacher:

1) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;

2) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;

3) Assumes functions as a teacher only for a specified period of time not to exceed three years; and

4) Demonstrates satisfactory progress toward full certification as prescribed by the State of Vermont.

(t) Homeless children. Homeless children means individuals who lack a fixed, regular, and adequate nighttime residence; and includes:

(1) Children and youth who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;

(2) Children and youth who have a primary night-time residence that is a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings;

(3) Children and youth who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and

(4) Migratory children who qualify as homeless because the children are living in circumstances described in sections (1) through (3).

(u) Individualized Education Program. Individualized Education Program or IEP means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with Rule 2363.

(v) Individualized Education Program Team. Individualized education program team or IEP team means a group of individuals described in Rule 2363 that is responsible for developing, reviewing, or revising an IEP for a child with a disability.

(w) Limited English Proficient. Limited English Proficient means an individual, aged three through 21, who is enrolled or preparing to enroll in an elementary school or secondary school; and who meets one of the following criteria:

(1) Who was not born in the United State or whose native language is a language other than English; or

(2) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and

(i) Who comes from an environment where a language other than English has had a significant impact on the individual's level of English language proficiency; or

(ii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and

(iii) Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual:

(A) The ability to meet the proficient level of achievement on State assessments;

(B) The ability to successfully achieve in classrooms where the language of instruction is English; or

(C) The opportunity to participate fully in society.

(x) Local Education Agency. Local Education Agency (LEA) means the supervisory union unless there is a unanimous vote at a supervisory union meeting that the supervisory union will only coordinate special education services on behalf of member districts in which case the LEA is the local school district ( 16 V.S.A. § 261a(6) ).

(y) Local Education Agency Plan (LEAP). The Vermont Agency of Education has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal. Each LEA assures its commitment to that goal by submitting its LEAP consistent with SBE Rule 1311.

(z) Meeting. A meeting is a session held for the development or review of a child's evaluation plan, eligibility determination, or an IEP. A meeting does not include informal or unscheduled conversations involving school personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities in which school personnel might engage to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

(aa) Native language. Native language, when used with respect to an individual who is limited English proficient, means the following:

(1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in subsection (aa)(2).

(2) In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.

(3) For an individual with deafness or blindness, or for an individual with no written language, the mode of communication normally used by the individual (such as sign language, Braille, or oral communication).

(bb) Parent means:

(1) A biological or adoptive parent of a child or student; when attempting to act as the parent and when more than one party is qualified to act as a parent, must be presumed to be the parent unless the biological or adoptive parent does not have legal authority to make educational or early intervention services decisions for the child or student;

(2) A foster parent, or developmental home provider who has been appointed the educational surrogate parent by the Vermont Educational Surrogate Parent Program; or

(3) A guardian generally authorized to act as the child's or student's parent, or authorized to make early intervention, education, health, or developmental decisions for the child or student (but not the State if the child or student is a ward of the State);

(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child or student lives, or an individual who is legally responsible for the child's or student's welfare;

(5) An educational surrogate parent who has been appointed by the Agency of Education; or

(6) If a judicial decree or order identifies a specific individual to act as the "parent" of a child or student or to make educational decisions on behalf of a child or student, then such individual shall be determined to be the "parent" for purposes of this section, except that the LEA that provides education or care for the child or student may not act as the parent.

(cc) Personally identifiable. Personally identifiable means information that contains:

(1) The name of the child, the child's parent, or other family member;

(2) The address of the child;

(3) A personal identifier, such as the child's social security number or student number; or

(4) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.

(dd) Print disability. Print disability means a condition related to blindness, visual impairment, specific learning disability, or other physical condition in which the student needs an alternative or specialized format (i.e. Braille, large print, audio, digital text, etc.), in order to access and gain information from conventional printed instructional materials.

(ee) Related services. Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability to benefit from special education and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation, transportation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students as described in Rule 2360.2.16.

(ff) Scientifically based research. Scientifically based research means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and includes research that:

(1) Employs systematic, empirical methods that draw on observation or experiment;

(2) Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;

(3) Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;

(4) Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random-assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls;

(5) Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and

(6) Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.

(gg) Services plan. Services plan means a written statement that describes the special education and related services the LEA will provide to a parentally-placed child, grades K-12, with a disability enrolled in an independent school or in a registered home school, who has been designated to receive services, including the location of the services and any transportation necessary, and is developed and implemented in accordance with Rule 2367.

(hh) Special education services. As defined in Rule 2360.2.12.

(ii) Student. For the purpose of this document, the term "student" shall refer to individuals ages six through 21 years of age, inclusive.

(jj) Supplementary aids and services. Supplementary aids and services means aids, services, and other supports that are provided in general education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in the least restrictive environment.

(kk) Universal design. The term "universal design", as provided in the Assistive Technology Act of 2004, means a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly accessible (without requiring assistive technologies) and products and services that are interoperable with assistive technologies.

(ll) Vulnerable adult in State custody. For purposes of these rules, "vulnerable adult in State custody" is a student who is 18 through 21 years of age and for whom guardianship authority to make educational decisions on behalf of the student has been granted by a court to the Commissioner of the Department of Disabilities, Aging and Independent Living pursuant to Chapter 215 of Title 18. A vulnerable adult in State custody meets the definition of, and shall be afforded, all rights and protections as a "ward of the State" pursuant to 20 U.S.C. § 1401(36).

(mm) Ward of the State. All rights and protections as a "ward of the State" pursuant to 20 U.S.C. § 1401(36) shall be afforded to a "child in State custody" or a "vulnerable adult in State custody" as those terms are defined in this section.

2361.2 Essential Early Education (EEE) Eligibility of Children Age Three Years Through Five.

Essential Early Education (EEE) is IDEA Part B Early Childhood Special Education (ECSE) services for children ages three through five, inclusive. Special education and related services are provided by LEAs to ensure children receive age appropriate services within inclusive early childhood settings, including the child's home, to the extent possible.

(a) A child under age three may be eligible for placement in Part B under IDEA on or up 90 days prior to their third birthday if the LEA determines the child meets criteria set forth in Part C Rule 2360.5.10.

(1) If the child is eligible for Part B, an IEP must be developed by the child's third birthday.

(2) Given parental consent under Rule 2363.8, a child shall receive ECSE services from the period of time between initiation of services up to their three-year evaluation date. The three-year evaluation date is three years from the date of initial eligibility determination under Part C CIS/EI as written in the child's One Plan.

(3) Before the three-year evaluation date is due, the LEA shall conduct and complete an initial comprehensive evaluation under Part B using ECSE eligibility criteria.

(b) A child age three years through five years shall be eligible for EEE services if the child meets at least one of the following:

(1) After the Evaluation Planning Team (EPT) reviews the results of the comprehensive evaluation and concludes that the child has a disability caused by a developmental delay and the child is in need of early childhood special education services; or

(2) The child has a medical condition which may result in significant delays, and the child is in need of early childhood special education services; or

(3) For a child enrolled in kindergarten, the EPT may consider using eligibility criteria for children ages six through 21 (school age) pursuant to Rule 2362, including the determination of a disability, adverse effect on educational performance, and need for special education.

(c) For the purposes of this section, "medical condition" means a condition diagnosed by a licensed physician such as, but not limited to, autism, cerebral palsy, Down Syndrome, or attention deficit disorder with hyperactivity that may result in significant delays by the child's sixth birthday.

(d) For the purposes of this section, "developmental delay" is determined through a comprehensive evaluation as measured by at least two appropriate assessment measures, one of which must be a standardized diagnostic instrument. Other measures may include, but are not limited to, observation of a child's function across daily routines and settings, interview with teachers, family, and/or caregivers, review of ongoing assessment, and, if warranted, a functional behavior assessment. To meet developmental delay criteria a child must demonstrate at least one of the following:

(1) A 40% delay in one or more developmental domains; or

(2) A 25% delay in two or more developmental domains; or

(3) A 2.0 standard deviation at, or below the mean (2nd percentile) in one or more developmental domains; or

(4) A 1.5 standard deviation at, or below the mean (7th percentile) in two or more developmental domains.

(e) Developmental Domains are defined as:

(1) Speech and language development including receptive and/or expressive communication, articulation, fluency, and/or voice;

(2) Adaptive development (self-help skills);

(3) Social or emotional development;

(4) Physical development including gross or fine motor skills; or

(5) Cognitive skills such as perception, memory, processing, and reasoning.

(f) The administration of any assessments shall be in compliance with the evaluation requirements set forth in Rule 2362.2.1.

(g) The percentage delay in a child's performance on a norm referenced assessment may be measured by dividing the child's age equivalent score in months by the child's actual age in months, and then multiplying the quotient by 100. The result is then subtracted from 100 to determine the child's percentage of delay.

(h) If the EPT has determined the child eligible to receive special education and related services an IEP shall be written within 30 days of the eligibility determination.

(i) The content of the child's IEP shall be as set forth in Rule 2363.7. For a preschool age child, the IEP shall address how the child's disability affects his/her access to and participation in age appropriate activities.

2361.3 Educational Placement in the Least Restrictive Environment (LRE) ( 34 C.F.R. § 300.115 ).

(a) At all times, a child's LRE placement must be based on their unique abilities and needs, and must provide the opportunity for a meaningful educational benefit. In determining the educational placement of a preschool child with a disability, each LEA shall provide a full continuum of placement options and ensure that:

(1) Placement decisions (provision of early childhood special education and related services) shall be made by the IEP team in conformity with the provisions regarding placement in the least restrictive environment set forth in Rule 2364, and

(2) The child's educational placement shall be:

(i) Determined at least annually;

(ii) Based on the child's IEP;

(iii) In as close proximity as possible to the child's home; and

(iv) Based on consideration of community-based early care and education settings, such as public or private Universal Prekindergarten Education (UPK) classrooms, private childcare, Head Start or as appropriate for the child, within the home.

(A) A child may receive ECSE services in a State-approved public or private prequalified UPK program. The LEA may, but is not required to, provide ECSE services outside of the LEA, even if the child is enrolled in an out-of-district UPK program.

(B) All public and private UPK programs shall adhere to applicable federal and state laws including, but not limited to, IDEA Part B; Section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act (ADA); Title VII of the Civil Rights Act of 1964; Vermont's Act 166 of 2014; SBE Rule Series 2600; and the Vermont Agency of Human Services (AHS), Child Development Division (CDD) licensing regulations.

(C) For children who are enrolled in public or private UPK programs and receive ECSE services, the UPK program shall allow access to ECSE service providers and permit announced and unannounced visits by representatives of AOE, AHS, and school district staff.

2361.4 Transition for Children Moving into Kindergarten.

(a) In order to ensure a smooth transition to kindergarten, the IEP team shall:

(1) Meet three to six months prior to the child's entrance into kindergarten to ensure that the child's IEP is ready to be implemented at the beginning of the school year. The child's re-evaluation date is determined three years from the child's evaluation date as stated on the child's current IEP.

(2) Include in the meeting the parents of the child with a disability, a kindergarten teacher in the school the child will be attending, and a special education teacher or other school representative from the LEA who is:

(i) Knowledgeable about the LEA's resources;

(ii) Qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities; and

(iii) Knowledgeable about the general education curriculum.

(iv) Other individuals with knowledge or special expertise regarding the child may be included in the meeting.

2361.5 IEP Content.

The content of the child's IEP shall be as set forth in Rule 2363.7. For a preschool age child, the IEP shall address how the child's disability affects their access to and active participation in age appropriate activities within the LRE. The IEP present levels of performance, goals, and objectives shall align with the following early childhood outcome areas:

(a) Positive Social and Emotional Skills and Relationships;

(b) Acquisition and Use and Knowledge and Skills; and

(c) Taking Appropriate Action to Meet Needs.

2362 ELIGIBILITY FOR CHILDREN AGES SIX YEARS THROUGH 21 ( 34 C.F.R. § 300.306 )

(a) A child shall be eligible for special education if:

(1) He or she has one or more of the disabilities described in Rule 2362.1;

(2) Except for the disability categories of Deaf-Blindness and Specific Learning Disability, the disability results in an adverse effect on the child's educational performance in one or more of the basic skill areas as described in subsection (g), below; and

(3) The student needs special education services to access and benefit from his or her educational program and this support cannot be provided through the educational support system, standard instructional conditions or supplementary aids and services provided in the school.

(b) The three criteria listed in subsection (a) above shall also be applied at the time the student receives a re-evaluation to determine eligibility.

(c) A formal evaluation process, documented in a report as required by Rule 2362.2.6, shall be used to determine whether the above criteria are met.

(d) Adverse Effect.

(1) In this section, "adverse effect" and to "adversely affect" are used interchangeably and mean to have a negative impact on the basic skills areas. This impact does not need to be substantial, significant, or marked. It is more than a minor or transient hindrance, evidenced by findings and observations based on data sources and objective assessments with replicable results. An adverse effect on educational performance does not include a developmentally appropriate characteristic of age/grade peers in the general population.

(2) The EPT must identify areas of adverse effect due to disability in the basic skills areas using a range of diagnostic and performance data appropriate to the student where the disability category requires a finding of adverse effect. The EPT and IEP team will consider academic and nonacademic aspects of the child's functioning.

(3) The documentation of adverse effect on educational performance must also substantiate that the educational deficiencies persist or will persist over time in spite of specific alternative strategies that are provided within the general education setting. The EPT should document evidence that scientific, research-based interventions have been implemented with fidelity. The EPT will consider these efforts and their impact when determining adverse educational performance.

(e) A child may not be determined to be eligible under these rules if the determinant factor for that eligibility decision is lack of instruction in reading, including the essential components of reading instruction (phonemic awareness, phonics, fluency including oral reading skills, vocabulary development, reading comprehension strategies), or math, or limited English proficiency; and the child does not otherwise meet the eligibility criteria of these rules.

(f) If a child has a disability that results in an adverse effect on his or her educational performance in one or more of the basic skills, the EPT shall, in the following order:

(1) Consider the interventions, services, and accommodations the student may need, and

(2) Determine and provide justification that the student requires specially designed instruction that cannot be provided within the school's standard instructional conditions, or provided through the school's educational support system.

(g) Basic skill areas--

(1) Unless otherwise specified in the disability category in these rules, basic skill areas are:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;

(iv) Basic reading skills;

(v) Reading comprehension;

(vi) Mathematics calculation;

(vii) Mathematics reasoning;

(viii) Motor skills; and

(ix) Functional skills.

(2) For an individual with a sensory impairment, one or more comparable basic skills shall be considered to serve as an appropriate substitute for one or more of the above basic skills, for example, Braille skills for basic reading skills.

(3) The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.

(4) "Functional skills" means the acquisition of essential and critical skills needed for a child with disabilities to learn specific daily living, personal, social, and employment skills or the skills needed to increase performance and independence at work, in school, in the home, in the community, for leisure time, and for post-secondary and other life-long opportunities.

2362.1 Categories of Disability ( 34 C.F.R. § 300.8 ).

The existence of one or more of the following categories of disability shall be established according to the criteria set forth below.

(a) Autism Spectrum Disorder

(1) Is a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three. Included in the spectrum are: autism, pervasive developmental disorder - not otherwise specified, Rett's Disorder, Asperger's Disorder, and childhood disintegrative disorder.

(2) Other characteristics often associated with autism spectrum disorder are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. Characteristics vary from mild to severe as well as in the number of symptoms present. Autism spectrum disorder does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in Rule 2362.1.

(3) A child who manifests the characteristics of autism spectrum disorder after age three could be identified as having autism spectrum disorder if the criteria in subsections (1) and (2) are satisfied.

(4) The EPT shall obtain an opinion of a licensed psychologist and/or medical physician who has training and experience in understanding autism spectrum disorders and other developmental disorders as to the existence of an autism spectrum disorder and its effect on the student's ability to function and whether there is an adverse effect on the child's educational performance.

(b) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

(c) Emotional disturbance means a condition including schizophrenia, exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance.

(1) Characteristics of an emotional disturbance:

(i) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(iii) Inappropriate types of behavior or feelings under normal circumstances.

(iv) A general pervasive mood of unhappiness or depression.

(v) A tendency to develop physical symptoms or fears associated with personal or school problems.

(2) A student who is socially maladjusted shall not be considered to be emotionally disturbed unless, he or she also meets the definition of emotional disturbance as set forth in subsection (1). A social maladjustment is a persistent pattern of violating societal norms, such as multiple acts of truancy, or substance or sex abuse, and is marked by struggle with authority, low frustration threshold, impulsivity, or manipulative behaviors. A social maladjustment unaccompanied by an emotional disturbance is often indicated by some or all of the following:

(i) Unhappiness or depression that is not pervasive;

(ii) Problem behaviors that are goal-directed, self-serving, and manipulative;

(iii) Actions that are based on perceived self-interest even though others may consider the behavior to be self-defeating;

(iv) General social conventions and behavioral standards are understood, but are not accepted;

(v) Negative counter-cultural standards or peers are accepted and followed;

(vi) Problem behaviors have escalated during pre-adolescence or adolescence;

(vii) Inappropriate behaviors are displayed in selected settings or situations (e.g., only at home, in school or in selected classes), while other behavior is appropriately controlled; and/or

(viii) Problem behaviors are frequently the result of encouragement by a peer group, are intentional, and the student understands the consequences of such behaviors.

(3) The EPT shall obtain an opinion of a licensed psychologist or psychiatrist as to the existence of an emotional disturbance and its effect on the student's ability to function, based on the above criteria.

(4) Upon determination of the existence of an emotional disturbance disability, the parent shall be informed of the availability of interagency coordination of services, as defined by 33 V.S.A. § 4301 et seq.

(d) Hearing Loss means deafness or hard of hearing as determined by an audiologist, otologist, or otolaryngologist, and demonstrated by a 25 decibel HL threshold (ANSI, 69) or worse for one or more of the frequencies 250-8000HZ, in one or both ears, with or without amplification.

(e) Intellectual disability means a delay in learning of sufficient magnitude to cause a student's performance to fall at or below -1.5 standard deviations from the mean of a test of intellectual ability, existing concurrently with deficits in adaptive behavior.

(f) Multiple disabilities means concomitant impairments (such as intellectual disability-blindness or intellectual disability-orthopedic impairment) the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.

(g) Orthopedic impairment includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). The EPT shall obtain an opinion from a licensed physician as to the existence of the orthopedic impairment and its effect on the student's ability to function.

(h) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that:

(1) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, nonverbal learning disability, and Tourette syndrome; and adversely affects a child's educational performance.

(2) In order to determine the existence of another health impairment and its effect on the student's ability to function, the EPT shall obtain an opinion from a person:

(i) Whose professional licensure authorizes him or her to offer an opinion on the existence of the specific condition suspected to be another health impairment and its effect on the student's ability to function, and

(ii) Who has specific training and experience in diagnosing and recommending treatment for the specific condition suspected.

(i) Specific Learning Disability

(1) The term "specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.

(2) Disorders include conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(3) The term "specific learning disability" does not include a learning problem that is primarily the result of: visual, hearing, or motor disabilities; intellectual disability; emotional disturbance; or environmental, cultural, or economic disadvantage.

(j) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment that adversely affects a student's educational performance and shall be demonstrated by significant deficits in listening comprehension or oral expression. The EPT shall obtain an opinion from a licensed speech-language pathologist as to the existence of a speech or language impairment and its effect on the student's ability to function. The determination of a speech or language impairment shall be based on the following criteria:

(1) Listening comprehension. A significant deficit in listening comprehension exists when a student demonstrates at least 2.0 standard deviations below the test mean on at least one composite score and other measures of auditory processing or comprehension of connected speech. Auditory processing or comprehension include:

(i) phonology,

(ii) morphology,

(iii) syntax,

(iv) semantics, or

(v) pragmatics.

(2) Oral Expression. For purposes of determination of a speech and language impairment, a significant deficit in oral expression exists when a child demonstrates one or more of the following conditions:

(i) Voice. A significant deficit in voice exists when both of the following are present:

(A) Documentation by an otolaryngologist that treatment is indicated for a vocal pathology or speech related medical condition, and

(B) Abnormal vocal characteristics in pitch, quality, nasality, volume, or breath support, which persist for at least one month.

(ii) Fluency. A significant deficit in fluency exists when the student exhibits one or more of the following behaviors:

(A) Part word repetitions or sound prolongations occur on at least 5% of the words spoken in two or more speech samples, or

(B) Sound or silent prolongations exceed one second in two or more speech samples, or

(C) Secondary symptoms or signs of tension or struggle during speech which are so severe as to interfere with the flow of communication.

(iii) Articulation. A significant deficit in articulation attributed to an organic or functional disorder exists when a student is unable to articulate two or more of the unrelated phonemes in connected speech, set forth below, and it is not attributed to dialect or second language difficulties.

Age	Phonemes
6.0 - 6.11	m, n, h, w, p, b, t, d, k, g, f, v (y), (ch), (th) as in the word "mother", (sh), and "j" as in jump
7.0 - 7.11	(th) as in the word "thin", l
8.0 and above	s, z, r, (zh) as in "measure", ng and consonant blends with s, l, and r

(iv) Oral Discourse. A significant deficit exists when a student demonstrates a deficit of at least 2.0 standard deviations below the test mean on at least one composite score and other measures of oral discourse. Oral discourse includes:

(A) phonology,

(B) morphology,

(C) syntax,

(D) semantics, or

(E) pragmatics

(k) Traumatic brain injury means an injury to the brain caused by an external physical force or by an internal occurrence such as a stroke or aneurysm, resulting in total or partial functional disability or psychosocial impairment, or both. The EPT shall obtain an opinion of a licensed physician as to the existence of a traumatic brain injury and its effect on the student's ability to function, as defined by the following criteria:

(1) The condition includes open or closed head injuries resulting in impairments in one or more areas, including cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech.

(2) The condition does not include brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma.

(l) Visual impairment including blindness means an impairment in vision as evaluated by an optometrist or ophthalmologist.

(1) This term includes, but is not limited, to the following:

(i) partial sight and blindness;

(ii) a visual acuity of 20/70 or less in the better eye;

(iii) reduced visual field to 20 degrees;

(iv) a diagnosis of cortical visual impairment;

(v) a diagnosis of a degenerative condition that is likely to result in a significant loss of vision; or

(vi) other vision conditions that may adversely affect a child's educational performance, such as convergence insufficiency disorder.

(2) For the purposes of this disability, mobility and orientation shall also be considered to be special education services.

2362.2 Procedures for Evaluation and Determination of Eligibility-Definition and Purpose.

(a) For purposes of this section, "evaluations" are defined as observations, tests, and other diagnostic measures, individually selected and administered to determine the existence of a disability, the effect the disability has on the child's educational and functional performance, and the need for specialized services and for an appropriate program. An evaluation is a compilation of information that is designed to assist:

(1) The EPT in determining eligibility for special education;

(2) The IEP team in developing the student's IEP including special education services, and as required, related services, transition services, assistive technology, and supplementary aids and services; and

(3) The IEP team in determining an appropriate placement in the least restrictive environment.

(b) The EPT membership for a student/child suspected of having a specific learning disability shall also include the following people:

(1) The student/child's general education teacher, or

(2) If the student/child does not have a general education teacher, a general education teacher qualified to teach a student/child of his or her age; or

(3) For a student/child of less than school age, an individual qualified to teach a student/child of his or her age; and

(4) At least one person qualified to conduct individual diagnostic examinations of students/children, such as a school psychologist, speech and language pathologist, special education teacher, or remedial reading teacher.

(c) Where the EPT cannot achieve consensus, as a member of the EPT, the LEA representative shall make the final decision.

(d) The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services. ( 34 C.F.R. § 300.302 ).

2362.2.1 Initial Evaluations ( 34 C.F.R. § 300.301 )

Either a parent of a child, or an LEA, or the AOE, or other State agency, may initiate a request for an initial evaluation to determine if a child or student is eligible for special education and related services. Implementation of Response to Intervention (RTI), Multitiered System of Supports (MTSS) or other strategies for academic and behavioral support shall not cause the evaluation of a child or student suspected of having a disability to be delayed or denied.

(a) Each LEA shall conduct a comprehensive and individual initial evaluation before the initial provision of special education and related services to a student with a disability under these rules.

(b) Upon receipt of a request for an evaluation, the school district shall, within 15 calendar days, either:

(1) Request parent consent to initiate the evaluation;

(2) Convene an EPT meeting; or

(3) Provide written reasons for denial of the request.

(c) The initial evaluation shall be completed and the report issued within 60 days from either:

(1) The date parental consent has been received by the LEA; or

(2) The date on the LEA's notice, which informs parents that it will be reviewing existing data as the sole basis for the initial evaluation.

(d) If completion of the initial evaluation will be delayed for a period exceeding 60 days as specified in subsections (1) and (2) above, the parent shall be given written notice of the delay and a schedule of evaluation activities. Such notice shall be sent to a parent before the expiration of the 60-day period. A notice of delay shall only be used for exceptional circumstances related to the student and/or family, which shall be documented.

(e) Consent shall be obtained before individual tests can be administered to students who receive special education services unless the assessment is being administered as an alternate assessment to district-wide or statewide assessments.

(f) The 60-day time limit for the completion of an initial eligibility evaluation identified in subsection (c) shall not apply to an LEA if the parent of a student repeatedly fails or refuses to make a student available for the evaluation or if:

(1) A student moves to a new LEA before the eligibility evaluation in the old LEA has been completed;

(2) The new LEA is making sufficient progress to ensure a prompt completion of the evaluation; and

(3) The parent and new LEA have agreed to the specific time when the evaluation will be completed.

2362.2.2 Evaluation Planning Team (EPT) - Membership

(a) Evaluations shall be arranged for, or conducted by an EPT with assistance, where appropriate, from other professionals (e.g., medical, psychological, etc.)

(b) The EPT membership shall include:

(1) An LEA representative who:

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children and students with disabilities;

(ii) Is knowledgeable about the general curriculum;

(iii) Is knowledgeable about the availability of resources of the LEA;

(iv) An LEA representative may designate any LEA personnel member of the EPT to also serve as the LEA representative, if the criteria in subsections (i)-(iii) are satisfied.

(2) At least one special education teacher of the student/child, or if appropriate, at least one special education service provider for the student/child;

(3) At least one general education teacher of the student/child, to the extent appropriate, if the student/child is, or may be, participating in the general education environment; The student when his or her post-secondary transition needs or services will be considered and other agencies likely to be responsible for providing or paying for transition services;

(4) At the discretion of the parent or the school district, other individuals who, in the opinion of the parents or school district have knowledge or special expertise regarding the student/child, including related services personnel, as appropriate;

(5) An individual who can interpret the instructional implication of evaluation results, who also may be a member of the team as described in sections (1), (2), (3), and (4) above;

(6) The parent(s), guardian, or educational surrogate parent of the student/child who shall be given meaningful opportunity to contribute information to the development of an evaluation plan; and

(7) If appropriate, the student/child.

(c) The EPT membership for a student/child suspected of having a specific learning disability shall also include the following people:

(1) The student/child's general education teacher, or

(2) If the student/child does not have a general education teacher, a general education teacher qualified to teach a student/child of his or her age; or

(3) For a student/child of less than school age, an individual qualified to teach a student/child of his or her age; and

(4) At least one person qualified to conduct individual diagnostic examinations of students/children, such as a school psychologist, speech and language pathologist, special education teacher, or remedial reading teacher.

(d) Where the EPT cannot achieve consensus, as a member of the EPT, the LEA representative shall make the final decision.

2362.2.3 Re-Evaluation Requirements ( 34 C.F.R. § 300.303 )

(a) The LEA shall ensure that a reevaluation of each child with a disability is conducted:

(1) If the LEA determines that the educational or related service needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(2) If the child's parent or teacher requests a reevaluation.

(b) A reevaluation conducted under sub-section (a):

(1) May occur not more than once a year, unless the parent and the LEA agree otherwise; and

(2) Shall occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary.

2362.2.4 Evaluation Procedures ( 34 C.F.R. § 300.304 )

(a) The LEA shall provide notice to the parents of a child with a disability in accordance with 2365.1.1 that describes any evaluation procedures the LEA proposes to conduct.

(b) In conducting the evaluation, the LEA shall:

(1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent that may assist in determining:

(i) Whether the child is eligible for special education services; and

(ii) The content of the child's IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities);

(2) Not use any single measure or assessment as the sole criterion for determining special education eligibility and for determining an appropriate educational program for the child; and

(3) Assess all student characteristics and other factors that may have a significant influence on eligibility, services to be offered or accommodations to be made, including, but not limited to:

(i) Physical characteristics:

(A) Vision;

(B) Hearing;

(C) Health;

(D) Medical; and

(E) Nutrition.

(ii) Social, behavioral, or emotional characteristics:

(A) Self-esteem;

(B) Self-control; and

(C) Interaction with peers and adults.

(iii) Adaptive behavior across settings:

(A) Independence skills;

(B) Coping skills; and

(C) Self-care skills.

(iv) Relevant life circumstances:

(A) Family;

(B) Community; and

(C) Environmental factors.

(v) Speech characteristics:

(A) Articulation;

(B) Fluency; and

(C) Voice.

(vi) Language and communication skills.

(vii) Intellectual or cognitive characteristics:

(A) Learning abilities;

(B) Learning styles; and

(C) Reasoning.

(viii) Areas of concern in the basic skills areas:

(A) Oral expression;

(B) Listening comprehension;

(C) Written expression;

(D) Basic reading skills;

(E) Reading comprehension;

(F) Mathematics calculation;

(G) Mathematics reasoning; and

(H) Motor skills.

(ix) Vocational needs.

(x) Skills in the learning environment.

(xi) Assistive technology needs related to devices and services.

(xii) The EPT shall assess the student's current level of performance in all curriculum areas with respect to which special education, related services and supplementary aids and services may be required.

(4) Ensure that assessments and other evaluation materials used to assess a child are:

(i) Selected and administered so as not to be discriminatory on a racial or cultural basis;

(ii) Provided and administered in the child's native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to provide or administer;

(iii) Used for the purposes for which the assessments or measures are valid and reliable;

(iv) Administered by trained and knowledgeable personnel;

(v) Administered in accordance with any instructions provided by the producer of the assessments;

(vi) Those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient; and

(vii) Selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).

(5) Ensure that assessments of children with disabilities who transfer from one LEA to another LEA in the same academic year are coordinated with such children's prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

(6) Ensure that the evaluation is sufficiently comprehensive to identify all of the child's special education and related service needs, whether or not commonly linked to the disability category in which the child has been found eligible.

(7) Ensure that assessment tools and strategies provide relevant information to directly assist the IEP team in determining that the educational needs of the child are provided.

(c) As part of an initial evaluation (if appropriate) and as part of any reevaluation under this part, the EPT and other qualified professionals, as appropriate, shall:

(1) Review existing evaluation data on the child, including:

(i) Evaluations and information provided by the parents of the child;

(ii) Current classroom-based, local, or State assessments, and classroom-based observations; and

(iii) Observations by teachers and related services providers; and

(2) On the basis of that review, and input from the student's parents, identify what additional data, if any, are needed to determine:

(i) Whether the student is or continues to be eligible for special education and related services;

(ii) The present levels of academic achievement and related developmental needs of the student; and

(iii) Whether any additions or modifications to the special education and related services are needed to enable the student to meet the measurable annual goals set out in the IEP of the student and to participate, as appropriate, in the general education curriculum.

(d) The EPT may conduct its review without a meeting.

(i) If a parent requests that the EPT review data through a formal meeting, then a formal meeting with required notices shall be held.

(ii) A formal meeting shall be required whenever the initial eligibility of the child will be determined. When a satisfactory agreement on such time or place cannot be reached, the LEA shall use other, mutually agreed upon methods, to ensure parent participation, including individual or conference telephone calls, or video conferencing.

(e) The LEA shall administer such assessments and other evaluation measures as may be needed to produce the data identified under subsection(c).

(f) If the EPT determines that no additional data are needed to determine whether the child continues to be eligible for special education and related services, the LEA shall notify the child's parents of:

(1) That determination and the reasons for the determination; and

(2) The right of the parents to request additional testing to determine eligibility.

(i) The LEA is not required to conduct additional testing unless requested to do so by the child's parents.

(g) The LEA shall evaluate a child before determining that the child is no longer eligible for special education and related services, unless the termination of a child's eligibility is due to graduation from secondary school with a regular diploma, or due to reaching the age of 22.

(1) Under these circumstances, the LEA shall provide the child with a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals.

(2) The LEA shall send a notice to the student and his/her parent(s) that a change of placement is scheduled to occur and give the reasons why.

(h) Prior to conducting an initial or re-evaluation for eligibility purposes, the EPT shall complete a written evaluation plan which lists the areas to be assessed, the procedures to be used in carrying out the evaluation, and personnel by title responsible for performing the evaluations. All EPT members shall have the opportunity to provide input in the development of the written evaluation plan.

2362.2.5 Additional Procedures for Identifying Children With Specific Learning Disabilities ( 34 C.F.R. § 300.307-300.311 )

(a) In making the determination that a student has a specific learning disability the LEA shall decide whether to use a model based on whether the student responds to scientific, research-based intervention or to use a model based on other alternative research based procedures for determining whether a child has a specific learning disability.

(1) Eligibility determinations for a student who is determined to have a specific learning disability shall not be required to include an assessment of adverse effect as outlined in Rule 2362.

(2) When using a model based on whether the student responds to scientific, research-based intervention, the EPT shall document use of the following:

(i) High-quality instruction and scientific research-based tiered interventions aligned with individual student need;

(ii) Frequent monitoring of student progress to make results-based academic decisions; and

(iii) Use of student response data to evaluate the effectiveness of interventions.

(b) The determination of whether a student has a specific learning disability shall be made by the student's parents and a team of qualified professionals, which shall include:

(1) The child's general education teacher; or

(i) If the child does not have a general education teacher, a classroom teacher qualified to teach a child of his or her age; or

(2) For a child of less than school age, an individual licensed by the Vermont Agency of Education to teach a student of his or her age; and

(3) At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, special education teacher, or remedial reading teacher.

(c) The EPT may determine that a student has a specific learning disability if:

(1) When provided with learning experiences and instruction appropriate for the student's age or State-approved grade-level standards, the student does not achieve adequately in one or more of the following areas:

(i) Oral expression.

(ii) Listening comprehension.

(iii) Written expression.

(iv) Basic reading skill.

(v) Reading fluency skills.

(vi) Reading comprehension.

(vii) Mathematics calculation.

(viii) Mathematics problem solving.

(2) The student does not make sufficient progress to meet age or State-approved grade level standards in one or more of the areas identified in (c)(1) when using a model based on whether the student responds to scientific, research-based intervention.

(3) The EPT determines that its findings under paragraphs (c)(1) and (2) of this subsection are not primarily the result of:

(i) A visual, hearing, or motor disability;

(ii) Intellectual disability;

(iii) Emotional disturbance;

(iv) Cultural factors;

(v) Environmental or economic disadvantage; or

(vi) Limited English proficiency.

(d) To ensure that underachievement in a student suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the EPT shall consider, as part of the evaluation, the following:

(1) Data that demonstrate that prior to, or as a part of, the referral process, the student was provided appropriate instruction in general education settings, delivered by qualified personnel; and

(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student's parents.

(e) The LEA shall promptly request parental consent to evaluate the student to determine if the student needs special education and related services, and shall adhere to the timeframes described in Rule 2362.2.1 unless extended by mutual written agreement of the student's parents and other members of the EPT if:

(1) Prior to a referral, a student has not made adequate progress after an appropriate period of time when provided scientifically research-based instruction/intervention; and

(2) Whenever a student is referred for an evaluation.

(f) At least one member of the child's EPT, other than the child's current teacher, who is trained in observation, shall observe the child, and the learning environment, including the general classroom setting, to document academic performance and behavior in the areas of difficulty.

(1) Students who are enrolled in a program of home study or who receive instruction delivered in a home, hospital, preschool, childcare setting, or other out of school setting shall be observed in instructional environments appropriate for children of that age, by trained personnel who are not the teacher. This observation shall be reported in writing to the EPT.

(2) If, after reasonable efforts have been made, it is not possible to conduct a classroom observation due to chronic truancy or other extenuating circumstances, there shall be documentation of efforts made to observe the student in an instructional environment.

2362.2.6 Evaluation and Planning Team Report

(a) When all necessary information is collected, the EPT shall prepare a written report that documents whether the child is eligible. When a student is found eligible, the report shall be available for use by the IEP team in program planning. The report shall include the following and shall be provided to the parent by the EPT:

(1) A conclusion supported by a rationale as to whether or not the student is eligible for special education based on the following:

(i) The presence or absence of a disability;

(ii) If there is a disability, whether it has an adverse effect on educational performance in one or more of the basic skill areas; and

(iii) Whether the student needs special education services to benefit from his or her educational program and that this support cannot be provided through the educational support system, standard instructional conditions, or supplementary aids and services provided in the school.

(2) The evaluation procedures used, including:

(i) A description of any modifications or changes made from the evaluation procedures specified in the evaluation plan; or

(ii) Changes which were necessary in test administration as described in Rule 2362.2.4;

(3) A summary of all educationally relevant information collected during the evaluation, including educational, medical, and psychological information and a summary of other factors considered;

(4) Recommendations as to the need for accommodations in curriculum, assessments, material, or programmatic adaptation, behavior management interventions, and supplemental aids and services;

(5) The initials of all team members indicating agreement or disagreement with the eligibility conclusion. A group member who does not agree with the conclusion shall submit a separate statement presenting his or her conclusions and this statement shall become part of the Evaluation Plan and Report; and

(6) The written report of an observation of the student, if an observation has been conducted.

(b) For a student suspected of having a specific learning disability, the evaluation report shall include documentation of:

(1) Whether the student has a specific learning disability;

(2) The basis for making the determination, including an assurance that the determination has been made in accordance with Rules 2362.2.3 and 2362.2.4.

(3) The relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student's academic functioning;

(4) Any educationally relevant medical findings;

(5) Whether:

(i) The student does not achieve adequately for the student's age or to meet Vermont grade-level standards in one or more of the basic skill areas, when provided with learning experiences and instruction appropriate for the student's age or grade level expectations; and

(ii) The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, Vermont standards and grade level expectations or intellectual development consistent with the characteristics of a specific learning disability.

(6) The determination of the EPT concerning the effects of visual, hearing, or motor disability; intellectual disability; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the student's achievement level; and

(7) If the student has participated in a process that assesses the student's response to scientific, research-based intervention:

(i) The instructional strategies used and the student-centered data collected; and

(ii) The documentation that the student's parents were notified about:

(A) The amount and nature of student performance data that would be collected and the general education services that would be provided;

(B) Strategies for increasing the student's rate of learning; and

(C) The parent's right to request an evaluation.

2362.2.7 Students Who Are Determined to Have a Disability, But Are Not Eligible for Special Education

(a) When an EPT determines that a student has a disability, but is not eligible for special education, it shall recommend accommodations, as needed, in such areas as assessment procedures, curriculum, material or programmatic adaptations, behavior management interventions, and supplemental aids and services. These recommendations shall be included in the written Evaluation Plan and Report. The Evaluation Plan and Report for such a student shall be referred to the student's building administrator who shall arrange for a Section 504 team to consider whether:

(1) The student's disability and needs will require a Section 504 Plan or

(2) The student's needs can be met within the school's standard instructional conditions and through its educational support system.

(b) If the EPT determines that the student has a disability, but is not eligible for special education, it may proceed to operate as a Section 504 team to determine whether the child is eligible for reasonable accommodations under Section 504.

2362.2.8 Independent Educational Evaluation ( 34 C.F.R. § 300.502 )

An "independent educational evaluation" means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question.

(a) Upon completion of a LEA evaluation, a parent may request an independent educational evaluation at public expense if he or she disagrees with the evaluation obtained by the LEA. Except as provided in this rule, the LEA shall either pay the full cost of the requested evaluation, or ensure that the evaluation is otherwise provided at no cost to the parent.

(b) A parent is entitled to only one independent educational evaluation at public expense for each evaluation performed by the LEA with which the parent disagrees.

(c) If a parent requests an independent educational evaluation, the LEA shall, without unnecessary delay, either:

(1) Initiate a hearing to show that its evaluation is appropriate; or

(2) Ensure that an independent educational evaluation is provided at no cost to the parent.

(d) An LEA shall provide to a parent who requests an independent educational evaluation, information about where such an evaluation may be obtained.

(e) Any LEA criteria, under which an independent evaluation may be obtained, including the location of the evaluation and the qualification of the examiner, shall be the same as the criteria that the LEA uses when it initiates an evaluation. Criteria established by an LEA under this section shall not interfere with the parent's right to an independent educational evaluation.

(f) Except as provided in (c) above, timelines or conditions related to obtaining an independent educational evaluation may not be imposed by the LEA.

(g) An LEA may pursue mediation or a due process hearing to demonstrate that an independent educational evaluation obtained by a parent does not meet LEA criteria.

(h) If the LEA initiates a hearing and the final decision is that the district's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at the LEA's expense.

(i) If a parent requests an independent educational evaluation, the LEA may ask for the parent's reason why he or she objects to the district's evaluation. However, an explanation by the parent may not be required, and the LEA may not unreasonably delay either providing the independent educational evaluation at no cost to the parent or initiating a due process hearing to defend the district's evaluation.

(j) If the parent obtains an independent educational evaluation at private expense, the results of the evaluation:

(1) Shall be considered by the LEA's EPT, if the evaluation meets the district's criteria, whenever it makes any decision with respect to the provision of FAPE to the child; and

(2) May be presented as evidence at a hearing regarding the child.

(k) If a hearing officer requests an independent educational evaluation as part of a hearing, the LEA is responsible for ensuring that the independent evaluation is completed at no cost to the parent.

2363 INDIVIDUALIZED EDUCATION PROGRAMS (IEP) ( 34 C.F.R. § 300.320 )

The term "Individualized Education Program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this rule and includes:

(a) A description of all special education services, related services, and supplementary aids and services that the child will need to be able to derive benefit from his or her educational program;

(b) A description of the special education program; and

(c) Accommodations and/or modifications necessary for the child to progress in the general education curriculum.

2363.1 Timelines ( 34 C.F.R. § 300.323 ).

An IEP shall be:

(a) Developed within 30 days of an initial determination that the child is eligible for special education and related services;

(b) Revised, as appropriate, to address the results of any re-evaluation for special education and related services;

(c) In effect before special education and related services are provided to the child;

(d) In effect at the beginning of each school year unless the child has been determined to be eligible within 30 days prior to the first day of school, in which case subparagraph (a) above applies; and

(e) Implemented as soon as possible following the IEP meeting.

2363.2 Responsibility of LEAs for IEPs.

Except as otherwise provided by these rules, each LEA shall ensure that an IEP is developed and implemented by the responsible LEA for each eligible child residing and attending public school in that district.

2363.3 IEP Team ( 34 C.F.R. § 300.321 ).

(a) The LEA shall ensure that the IEP team for each eligible child includes:

(1) A local education agency representative (LEA Representative) who:

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) Is knowledgeable about the general curriculum;

(iii) Is knowledgeable about the availability of resources of the LEA;

(iv) An LEA representative may designate any LEA personnel member of the IEP team to also serve as the LEA representative, if the criteria in subsections (i)-(iii) are satisfied; and

(2) Not fewer than one special education teacher of the child, or if appropriate, not fewer than one special education service provider for the child;

(3) Not fewer than one general education teacher of the child, to the extent appropriate, if the child is, or may be, participating in the general education environment. The teacher shall, to the extent appropriate, participate in the development of the IEP of the child including the determination of appropriate positive behavioral interventions and strategies, supplementary aids and services, program modifications, and supports for school personnel that will be provided to allow the child an opportunity for participation and progress in the general curriculum and the attainment of annual IEP goals;

(4) At the discretion of the parent or the LEA, other individuals who, in the opinion of the parents or LEA, have knowledge or special expertise regarding the child, including related services personnel, as appropriate;

(5) An individual who can interpret the instructional implications of evaluation results, who also may be a member of the team as described in sections (1), (2), (3), and (4) above;

(6) The parent(s), guardian, or educational surrogate parent of the child;

(7) If appropriate, the child;

(8) In the case of a child with a specific learning disability, at least one person qualified to conduct individualized diagnostic examinations of children, such as a school psychologist, speech-language pathologist, special education teacher, or remedial reading teacher; and

(9) In the case of a child previously served under the Children's Integrated Services/Early Intervention (CIS/EI), at the request of the parent, the Part C service coordinator or other representatives of the Part C system may be invited to assist in the smooth transition of special education services. Parents shall be notified of their right to request such an invitation.

(b) Additional participants when the transition services of the student will be discussed.

(1) Not later than the IEP to be in effect when a student is age 16 (or younger, if determined appropriate by the IEP team), the LEA shall continue inviting the student to attend his/her IEP meetings to discuss transition services.

(2) If the student does not attend the IEP meeting when invited, the LEA shall take other steps to ensure that the student's preferences and interests are considered.

(3) In implementing the requirements with respect to transition services, the LEA also shall invite a representative of any other agency that is likely to be responsible for providing or paying for such services.

(4) If an agency invited to send a representative to a meeting does not do so, the LEA shall take other steps to obtain participation of the other agency in the planning of any transition services.

(c) IEP Team attendance

(1) A member of the IEP team is not required to attend an IEP meeting, in whole or in part, if the parent of the child and the local educational agency agree, in writing, that the attendance of such member is not necessary because the member's area of curriculum or related services is not being modified or discussed in the meeting.

(2) A member of the IEP team may be excused from attending an IEP meeting, in whole or in part, when the parent and local education agency agree, in writing, that a team member may be excused from the IEP meeting in which the member's area of curriculum or related services is being discussed. This agreement requires that the excused member submit, in writing to the parent and IEP team, their input into the IEP development prior to the IEP meeting.

(d) Decisions by the IEP team

If the team cannot reach consensus, the LEA Representative shall determine the contents of the IEP pursuant to Rule 2363.7 and shall notify the parents of their rights to revoke consent pursuant to Rule 2363.8, seek mediation, file an administrative complaint or request a due process hearing.

2363.4 Parent Participation in IEP Meeting ( 34 C.F.R. § 300.322 ).

(a) Each LEA shall take steps to ensure that one or both parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including:

(1) Notifying the parents of the meeting early enough that they will have an opportunity to attend; and

(2) Scheduling the meeting at a mutually agreed upon time and place.

(i) The LEA shall schedule meetings with parents at a mutually agreed upon time and place. When a satisfactory agreement on such time or place cannot be reached, the district shall use other, mutually agreed upon methods to ensure parent participation, including individual or conference telephone calls, or video conferencing.

(ii) When the district is unable to arrange the parents' participation, the district shall convene the IEP meeting to meet its obligation to provide appropriate services to the child as set forth in rule 2363.2 of this section.

(b) A meeting may be conducted without a parent in attendance, if the LEA is unable to convince the parent to attend. Under these circumstances, the LEA shall maintain a record of at least three attempts to arrange a mutually agreed upon time and place, such as:

(1) Detailed records of telephone calls made or attempted and the results of those calls;

(2) Copies of correspondence sent to the parents and any responses received; and

(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.

(c) The LEA shall take whatever action is necessary to ensure that the parent understands the proceedings at the IEP meeting, including arranging for an interpreter for a parent who is deaf or whose native language is other than English.

(d) When the student reaches age 17, the LEA shall notify the parent and the student that at age 18, the student, unless he/she is under guardianship, will become an adult under Vermont law. At that time, the LEA shall send a notice to the student of his/her IEP meetings. The parent shall be given a copy of the notice unless, as set forth in rule 2365.1.12, the student is incarcerated. When a student becomes an adult, the parents may attend an IEP meeting at the discretion of the student pursuant to Rule 2363.3.

(e) A teacher or parent may request an IEP meeting at any time when they believe a component of the IEP should be changed. When the LEA receives the request:

(1) The LEA shall convene a properly notified IEP meeting within 30 days of receipt of the request, not counting days between the student's regular school sessions or days of school vacation in excess of five school days, or

(2) Refuse to convene an IEP meeting and shall provide written notice to the parent explaining why the LEA has concluded a meeting is not necessary to ensure the provision of FAPE to the student.

(3) The LEA's notice shall inform the parent of his or her right to initiate a due process hearing if the parent disagrees with the LEA's decision not to convene a meeting under this subsection.

2363.5 Notice About IEP Meeting ( 34 C.F.R. § 300.322(b) ).

(a) A notice of an IEP meeting shall:

(1) Indicate the purpose, time, and location of the meeting;

(2) State who will be in attendance; and

(3) Inform the parents of the right of the LEA and the parents to invite other people who, in their opinion, have knowledge or special expertise about the child.

(b) Beginning not later than the first IEP to be in effect when the student is age 16, or younger if appropriate, for a student with a disability the notice shall advise the parents and student of the requirements of Rule 2363.4.

2363.6 Development, Review, and Revision of IEP ( 34 C.F.R. § 300.324 ).

(a) In the development, review, and revision of an IEP, the IEP team shall consider:

(1) The strengths of the child and the concerns of the parent for enhancing the education of their child;

(2) The results of the initial or most recent evaluation of the child;

(3) As appropriate, the results of the child's performance on any general State or district-wide assessment programs; and

(4) The academic, developmental, and functional needs of the child

(b) The IEP team shall also consider the following special factors:

(1) In the case of a child with limited English proficiency, the language needs of the child as those needs relate to the child's IEP;

(2) In the case of a child who is blind or visually impaired, provision for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

(3) The communication needs of the child, and in the case of a child who is deaf or hard of hearing, the child's language and communication needs, opportunities for direct communication with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode;

(4) Whether the child requires assistive technology devices and services;

(5) When the evaluation data indicates that the student's behavior is impeding his or her learning or the learning of others, positive behavioral interventions and supports, and other strategies to address the behavior and to assist the child to develop skills in areas such as:

(i) Social skills;

(ii) Anger management; and/or

(iii) Conflict resolution.

(6) Supplementary aids and services, program modifications, or supports for the child or school personnel who will be working with the child to help him/her:

(i) Attain IEP annual goals;

(ii) Progress in the general curriculum;

(iii) Participate in extra-curricular activities; and

(iv) Be educated in the least restrictive environment.

(7) Whether a child needs a particular device or service, including an intervention, accommodation, or other program modification, in order for the child to receive a FAPE.

(c) Each LEA shall ensure that the IEP team:

(1) Reviews the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and

(2) Revises the IEP as appropriate to address:

(i) A lack of expected progress toward the annual goals;

(ii) A lack of expected progress in the general curriculum, if appropriate;

(iii) The results of any re-evaluation;

(iv) Information about the child provided to, or by, the parents;

(v) The child's anticipated needs; or

(vi) Other matters.

(3) In making changes to the IEP, after the annual review meeting, the parent of the child and the school may agree, in writing, not to convene an IEP meeting for the purpose of making such changes and, instead, may develop a written document to amend or modify the child's current IEP.

(i) Parents shall be given a copy of the written agreement document.

(d) To the extent possible, schools shall encourage the consolidation of re-evaluation meetings and other IEP meetings for the child.

2363.7 Content of IEP ( 34 C.F.R. § 300.320 ).

An IEP that contains information under one component need not repeat the same information under another component. The IEP for each child with a disability shall include:

(a) A statement of the child's present levels of academic achievement and functional performance, including:

(1) The child's abilities, acquired skills, and strengths;

(2) How the child's disability affects the child's involvement and ability to make progress in the general curriculum; or

(3) For preschool children, how the disability affects the child's participation in activities appropriate for the child;

(4) For children, not later than one year before the child reaches the age 18, a statement that the child has been informed of their rights under these regulations that will transfer to them upon reaching the age of majority (18).

(b) Measurable annual goals related to the child's present levels of academic and functional performance which shall:

(1) Use pertinent data to inform the development of appropriate goals and objectives.

(2) Be written as measurable short-term objectives or benchmarks with projected dates for accomplishment, including a description of the evaluation procedures and the specific data that will be used to assess goals progress.

(3) Enable the child to be involved in and progress, to the extent appropriate, in the same curriculum as children without disabilities. For preschool children, goals shall include participation in activities appropriate for children without disabilities.

(4) Enable the child to meet other educational needs that result from his or her disability.

(5) Be accompanied by a method of reporting the child's progress to the parents at least as often as other parents in the school receive progress reports. A progress report shall inform parents of:

(i) Their child's progress toward the annual goals; and

(ii) The extent to which the progress is sufficient to enable the child to achieve the goals by the end of the year.

(c) Special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of individual accommodations, program modifications, or supports that will be provided for school personnel to enable the child:

(1) To advance appropriately toward attaining his or her IEP annual goals;

(2) To be involved in and progress in the general curriculum, to participate in extra-curricular and other non-academic activities and in physical education services pursuant to the requirements in Rule 2360.2; and

(3) To be educated and participate with a variety of children who do and do not have disabilities.

(d) The projected date for the beginning of the services and modifications, the title of the service provider, anticipated frequency, location, and duration of those services and modifications.

(e) The IEP team shall determine the child's placement in accordance with Rule 2364.3. The IEP shall also include an explanation of the extent, if any, to which the child will not participate with children without disabilities in a general education class, general curriculum, extracurricular and other non-academic activities.

(f) Where the student's placement is a residential placement pursuant to Rule 2364.4, the student's IEP shall contain annual goals and short-term objectives or benchmarks designed to reintegrate the student into a local LEA placement, and a description of how they will lead to reintegration.

(g) A statement of any individual accommodations in the administration of State, district-wide, or local assessments of student achievement that are needed in order for the child to participate in the assessment.

(1) If the IEP team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of an assessment), a statement of:

(i) Why that assessment is not appropriate for the child; and

(ii) How the child will be assessed.

(h) A description of any extended school year services (ESY) which the IEP team finds are necessary to provide a FAPE to the student.

(1) ESY services shall be provided only if a child's IEP team determines that the services are necessary for the provision of FAPE to the child because one or more of the following factors is evident:

(i) ESY is essential to permit the student an opportunity to reach reasonably set educational goals;

(ii) There has been a significant amount of regression over the past winter, spring, and summer vacations and recoupment did not occur within a reasonable amount of time;

(iii) The severity of the student's disability presents a danger of substantial regression; or

(iv) The student's transition goals require continued programming beyond the school year IEP.

(2) An LEA or IEP team may not limit extended school year services to students with particular disabilities.

(3) An LEA shall not adopt a policy that limits the type, amount, or duration of ESY services for all children.

(i) Transition services

(1) For students, beginning with the first IEP in effect when the student is 16, or younger if determined appropriate by the IEP team, and updated annually thereafter, there shall be:

(i) Age appropriate and measurable postsecondary goals based upon age appropriate assessments related to:

(A) Education/training;

(B) Employment; and

(C) If appropriate, independent living.

(ii) Evidence that the student's interests and preferences were taken into consideration during the formulation of the goals.

(2) Contingent upon prior consent from the parent or adult student, representatives of any agency that is likely to be responsible for providing or paying for transition services to implement the goals, shall be invited to participate in the IEP meeting.

(3) If a participating agency, other than the LEA, fails to provide the transition services described in the IEP, the LEA shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.

(4) Nothing in these rules shall relieve any participating agency of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency.

(5) When a student is going to graduate, a "summary of performance" report shall be written for the student as described at Rule 2362.2.4.

(j) Parent Input. The IEP shall contain a section for parents to provide written comments regarding their child's IEP. Following an IEP meeting to write or amend an IEP, the LEA shall send the IEP to the parent together with prior written notice of decision. The parent shall be provided 10 days to complete and return the parent input section of the IEP. The purpose of the parent input section is to facilitate feedback from families to ensure they have an opportunity to express any opinions about the IEP or the IEP process. Upon receipt of the parent input, the LEA may, but is not required to, schedule a meeting to discuss parental concerns.

2363.8 Consent for Initial Provision of Special Education Services ( 34 C.F.R. § 300.300(b) ).

(a) A consent form shall be signed by the parent and received by the LEA prior to the initial provision of IEP services.

(b) If the parent of a child fails to respond or refuses to consent to services the LEA may not use due process procedures, or mediation, in order to obtain agreement or a ruling that the services may be provided to the child.

(c) If the parent of the child refuses to consent to the initial provision of special education or related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the LEA:

(1) Will not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide the child with the special education and related services for which the LEA requests consent.

(2) Is not required to convene an IEP meeting or develop an IEP for the child for the special education and related services for which the LEA requests such consent.

(d) If the parent provides written consent for the initial provision of IEP services before they have begun and then revokes the consent, the services shall not commence. The student shall remain eligible for services and the LEA may attempt to resolve the matter with the parent by:

(1) Discussing the matter through appropriate informal means;

(2) Requesting mediation; or

(3) Requesting that the student be reevaluated to determine if he or she continues to be eligible for special education services. A reevaluation could consist of a review of existing data.

(e) A parent may revoke consent at any time subsequent to the initial provision of special education and related services. The revocation of consent shall be in writing, on a form provided by the LEA or in any other written form, and should indicate the date of revocation. Upon receipt of such a revocation of consent, the LEA:

(1) Shall provide prior written notice to the parent that it is ceasing the provision of special education and related services and then may not continue to provide special education and related services;

(2) May not use due process procedures, or mediation, in order to obtain agreement or a ruling that the services may be provided to the child;

(3) Will not be considered to be in violation of the requirement to make available a free, appropriate public education to the child for the failure to provide the child with the special education and related services for which the LEA requests consent; and

(4) Is not required to convene an IEP team meeting or develop an IEP for the child after the date of the revocation of consent.

(f) Revocation of consent is not retroactive and the LEA is not required to amend the child's education records to remove any references to the child's prior receipt of special education services.

2363.9 Distribution and Explanation of the IEP Document ( 34 C.F.R. § 300.323(d) ).

(a) The student's IEP shall be made accessible to each general education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.

(b) Each teacher and provider described above shall be informed of:

(1) His or her specific responsibilities related to implementing the child's IEP; and

(2) The specific accommodations, modifications, and supports that shall be provided for the child in accordance with the IEP.

(c) The LEA shall give the parent a copy of the student's IEP, or amended portions of the IEP, at no cost to the parent.

2363.10 IEP Requirements for Placements by LEAs in Independent Schools or Tutorial Programs ( 34 C.F.R. § 300.325 ).

(a) Before an LEA places a student eligible for special education services in, or refers a student to, an independent school, or a tutorial program, the LEA shall initiate and conduct a meeting to develop an IEP for the student that reflects the change in placement.

(b) The LEA's placement shall be at no cost to the parents and the independent school or tutorial program shall provide an education that meets the standards that apply to education provided by the local LEA.

(1) Placements by LEAs in independent schools shall be in schools that have been approved according to Rule 2228.

(2) Placements by LEAs in tutorial programs shall be in programs that have been approved according to Rule 2230.

(c) The LEA shall ensure that a representative of the independent school or tutorial program either attends the meeting or is able to participate by other methods including individual or conference telephone calls.

(d) After a child with a disability enters an independent school or a tutorial program, any meetings to review and revise the student's IEP may be initiated and conducted by the school or tutorial program in accordance with the written agreement as entered into in conformance with Rule 2228.4.2. If the independent school or tutorial program initiates and conducts these meetings, the LEA shall ensure, to the extent required by Rule 2363.4, that an LEA Representative is involved in any decision about the student's IEP and agrees to any proposed changes in the IEP before those changes are implemented. Parent participation shall be required and documented as set forth in Rule 2363.4.

(e) When an independent school or a tutorial program implements a student's IEP, responsibility for compliance with the special education regulations with respect to that student remains with the LEA.

(f) A child placed in an independent school or a tutorial program by an LEA shall retain all of the rights of a child on an IEP who is attending a public school.

2363.11 IEP for a Student Moving into the LEA When the Student Has Been Eligible or Was Being Evaluated for Special Education in Another State or in Another Vermont LEA ( 34 C.F.R. § 300.323(e) and (f) ).

(a) Child Moving From Another Vermont LEA: If a child eligible for special education services moves from one Vermont LEA to another, the receiving LEA shall either adopt the IEP the former LEA developed for the child or develop a new IEP for the child. The receiving LEA shall implement the current IEP to the extent possible until a new IEP is developed. In the absence of exceptional circumstances, IEP services shall commence within one week of the time the child enrolls in the receiving LEA.

(b) Child Moving From an Out-Of-State LEA: If a child eligible for special education services in another state moves into a Vermont LEA within the same school year, the receiving LEA, in consultation with the parent, shall provide a FAPE to that child, including services comparable to those described in the child's IEP from the previous school, until the Vermont LEA:

(1) Conducts an evaluation to determine initial eligibility in Vermont; and

(2) If eligible, develops, adopts, and implements a new IEP.

(c) Child Moving During an Evaluation Process: If a child transfers to another LEA within the state or moves into a Vermont school from out of state, the completion of the evaluation shall be coordinated and completed by the new school, including documentation with the parents of the child of the expected completion date of the evaluation should it differ from the original expected date of completion. This evaluation should be completed as expeditiously as possible.

(d) To facilitate the transition of a child described in (a) and (b) of this rule the previous LEA and the child's new LEA shall take reasonable steps to promptly send and receive, in accordance with the provisions of Family Education Rights and Privacy Act (FERPA), the child's records, including the IEP, supporting documents and any other records relating to the child's special education and related services. This rule may not be interpreted to limit either the previous LEA or the new LEA's responsibilities pursuant to Rule 2365.2.12 and 2365.2.13.

2363.12 IEP Accountability.

(a) Each LEA shall:

(1) Provide special education and related services to an eligible student in accordance with the student's IEP; and

(2) Make a good faith effort to assist the student to achieve the goals and objectives or benchmarks listed in the IEP.

(b) These rules do not require that an LEA, teacher, or other person be held accountable if a student does not achieve the growth projected in the annual goals and benchmarks or objectives. However, these rules do not prohibit an LEA from establishing its own accountability systems.

(c) Nothing in this section limits a parent's right to ask for revisions of the student's IEP or to invoke due process procedures if the parent feels that the efforts required in paragraph (a) of this section are not being made.

2364 LEAST RESTRICTIVE ENVIRONMENT (LRE)

2364.1 General LRE Requirements ( 34 C.F.R. § 300.114 ).

(a) Each LEA shall ensure that:

(1) A student eligible for special education services shall be educated with his or her non-disabled chronological age peers, to the maximum extent appropriate in the school he or she would attend if he or she did not have a disability; and

(2) Special classes, separate schooling or other removal of children with disabilities from the general educational environment shall occur only if the nature or severity of the child's disability is such that education in general classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(b) Pursuant to 16 V.S.A § 2959(b), the IEP team may consider the cost of the provision of special education or related services to the child if:

(1) The IEP has been developed with the parents in accordance with Rule 2363;

(2) The IEP team has determined that the child's placement contained in the IEP is appropriate for the child,

(3) Each of the options under consideration by the IEP team for fulfilling the requirements of the child's IEP would constitute a free appropriate public education in the least restrictive environment for the child, and

(4) The funding mechanism for the special education service was not used to deny a free appropriate public education to the student.

2364.2 Continuum of Alternative Placements ( 34 C.F.R. § 300.115 ).

(a) Each LEA shall ensure that a continuum of alternative placements is available to meet the needs of children who are receiving IEP services.

(b) The continuum shall include:

(1) Instruction in general education classes, special classes, special schools, independent schools, home instruction, and instruction in hospitals and residential facilities; and

(2) Provisions for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with general education class placements.

2364.3 Placements ( 34 C.F.R. § 300.116 ).

(a) The IEP team shall determine the educational placement for the child given the following:

(1) Educational placement refers to the provision of special education and related services rather than a specific site; and

(2) The LEA determines the specific site of the educational placement, such as the specific classroom or specific school.

(b) Placement decisions shall be made on the basis of the student's individual circumstances and not on the basis of the student's disability category.

(c) Unless the IEP of a child with a disability requires some other arrangement, the child shall be educated in the school that he or she would attend if non-disabled.

(d) Barriers to the participation of students with disabilities in the general education environment shall be addressed whenever possible by the provision of accommodations, modifications, and supplementary aids and services rather than by placement in separate programs.

(e) A child with a disability shall not be removed from education in age-appropriate general classrooms solely because of needed modifications in the general curriculum.

(f) In selecting the LRE, consideration shall be given to any potential harmful effect on the student or on the quality of services that he or she needs.

(g) The placement decided upon shall be:

(1) Determined at least annually;

(2) Consistent with the other provisions of the child's IEP; and

(3) As close as possible to the child's home, unless the parent agrees otherwise.

2364.4 Residential Placements by LEAs.

2364.4.1 Individual Residential Placements Funding of individual residential placements shall be in accordance with 16 V.S.A. Chapter 101, subchapter 2 and 16 V.S.A. § 2958(c)(2). Applications for funding of individual residential placements shall undergo the residential review process set forth in 16 V.S.A. § 2958 and Rule 2364.4.1.1.

2364.4.1.1 Residential Placement Review Team

As needed, the Secretary may appoint Agency of Education employees and others to a residential placement review team. Members of the team shall be subject to the confidentiality provisions of State and federal law. The team shall have those responsibilities set forth in 16 V.S.A. § 2958(b). The team shall be composed of at least two members:

(1) one who has knowledge about the child's area of disability and

(2) the other who has knowledge of available resources and services in the LEA's region of the State, and, where relevant to the provision of a continuum addressing the student's disability, elsewhere in the State and in their region of the United States.

2364.4.1.2 Early Notification to the Secretary

(a) Each LEA shall provide timely notification to the Secretary, in writing, with a copy sent to the student's parents, that residential placement is being considered as a possible option for inclusion in the student's IEP when there has been:

(1) A recommendation by the Evaluation and Planning Team for residential placement;

(2) A unilateral residential placement by the parents or by another State agency, pursuant to 16 V.S.A. § 2942(7);

(3) An annual review for a student already in residential placement; or

(4) When any circumstance warrants consideration by the LEA that residential placement is a possible option for inclusion in a student's IEP.

(b) Nothing herein shall be construed to mean that a student who falls within one of the above four categories necessarily requires residential placement. Additionally, nothing herein shall be construed to mean that notice to the Secretary represents a decision of the IEP participants.

(c) Reimbursement for residential placements shall be for placements from the date the Agency receives the notification in accord with this section. This requirement shall not apply to emergency placements made due to life-threatening events to a child or to other exceptional circumstances approved by the Secretary or designee after request by an LEA and recommendation of the residential review team.

2364.4.1.3 Timelines

Unless extraordinary circumstances are presented, each LEA shall notify the Secretary at least 30 days prior to a change of placement to a residential placement, or other program, or 30 days prior to the IEP meeting where continuation at a residential placement or program is being considered. Such notice shall be given as soon as possible so that the involvement of the review team, if deemed necessary by the Secretary, does not interfere with the timelines for the placement decision.

2364.4.1.4 Receipt of IEP

Prior to an IEP team's determination that a student requires residential placement, the LEA shall forward the following documents to the Secretary:

(a) The student's most recent Evaluation Plan and Report;

(b) Current IEP;

(c) Residential placement application form; and

(d) Any other relevant information.

2364.4.1.5 Residential Review Team Procedures

(a) Upon receiving notice under Rule 2364.4.1.2 or the IEP under Rule 2364.4.1.4, or upon request by a parent to establish a residential placement review team to review his or her child's case, whichever comes earlier, the Secretary may establish a review team. Within ten working days of receipt of the notice, the IEP, or the parental request, the Secretary or the Secretary's designee shall notify the LEA and the parents whether or not a review team has been constituted or reconvened.

(b) The review team or any designated member thereof shall promptly investigate the need for residential placement of a student and provide technical assistance to the LEA concerning the need for residential placement, alternatives to residential placement, and alternative cost-effective residential facilities.

(c) Within 30 days, or fewer, of its establishment, the team, after investigation, may take any of the following actions, depending on the circumstances associated with the request for residential placement:

(1) Advise the LEA and parents on alternatives to residential placement;

(2) Review the individualized education program calling for residential placement of a student to consider whether the student can be educated in a less restrictive environment;

(3) Assist the LEA in locating cost effective and appropriate residential facilities where necessary;

(4) Request, but not require, a new IEP when it believes that appropriate alternatives to residential placement are available; or

(5) Offer mediation as a means of resolving disputes relating to the need for residential placement, the particular residential facility recommended for a student with a disability, or the associated costs.

(6) The residential review team shall provide notice in writing to the LEA's IEP team if and when it determines, as a result of its review, that residential placement, or that a particular residential placement, is not appropriate. The notice shall set forth the reasons(s) for the team's conclusions.

(d) The Secretary may waive any provision of Rule 2364.4.1.5, not otherwise inconsistent with law for emergency placements or administrative efficiency.

(e) Where the team or its designee finds that the placement practices or policies of an LEA are substantially inconsistent with least restrictive environment provisions of State or federal law, it may require the agency to submit a plan of correction.

(f) Where the residential review team has identified, with the timelines noted above, residential facilities or alternative educational programs that are available, appropriate, and less costly, and has presented such facilities or programs to the IEP team for consideration during the IEP team's consideration of placement alternatives, and the IEP team has chosen to place the child in a more costly residential facility or program, the amount of reimbursement by the State to the LEA shall be based upon the less costly placement. In such an instance, the LEA may appeal the decision of the Secretary to the State Board of Education in accordance with Rule 1230.

(g) Where the recommendation of the residential review team to IEP team is for a residential program or facility operated or developed by, or funded directly or indirectly through, another State agency, it shall be the responsibility of the residential review team, the LEA, and the IEP team to work with the State agency in a timely manner and in accordance with the Part B Interagency Agreement, as amended.

(h) If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, shall be at no cost to the parents of the child. ( 34 C.F.R. § 300.104 )

(i) The Secretary, or the Secretary's designee, shall establish a system whereby the Agency of Education identifies and maintains current information on residential facilities, or other programs in Vermont and elsewhere, that provide educational programs to students with a variety of disabilities. Information about such facilities or programs may include, but not be limited to, the categories of disabilities served by the facility or program; the state's approval status; the costs associated with tuition and services for which the facility or program charges a fee; and any other pertinent information. Any information system created by the Agency shall include a description of procedures for gathering updated information.

2364.4.1.6 Due Process Hearing

When the residential review team recommends that a student does not require residential placement, the Secretary may initiate a special education due process hearing under Rule 2365.1.6 to determine the appropriate placement for the child.

2364.5 LRE for Non-Academic and Extra-Curricular Activities ( 34 C.F.R. § 300.117 ).

(a) In providing or arranging for the provision of non-academic (e.g., meals and recess periods) and extra-curricular services and activities, the LEA shall ensure that an eligible student participates with non-disabled students in those services and activities to the maximum extent appropriate to the needs of that student.

(b) The LEA shall ensure that each child with a disability has the supplementary aids and services determined by the child's IEP team to be appropriate and necessary for the child to participate in non-academic and extra-curricular activities.

2364.6 Technical Assistance, Training and Monitoring Activities for LRE ( 34 C.F.R. § 300.119-120 ).

(a) The Vermont Agency of Education shall:

(1) Provide training and technical assistance to teachers and administrators in public and independent schools approved for the provision of special education services to assist them in implementing the LRE requirements in Rule 2364.

(2) Monitor an LEA's compliance with LRE requirements in Rule 2364. If there is evidence that an LEA makes placements that are inconsistent with LRE requirements, the Agency shall:

(i) Review the LEA's justification for its actions;

(ii) Assist in planning and implementing any necessary corrective action; and

(ii) Apply as necessary the enforcement policy and procedures contained in the Vermont State Board of Education policy on "Denial of Federal Special Education Funds to an LEA."

2364.7 Instruction for Homebound or Hospitalized Special Education Students.

(a) Children who are eligible for essential early education services who are homebound or hospitalized due to a medical condition and are unable to access the services outlined in their current IEP shall receive direct instruction as determined by the child's IEP team unless inconsistent with medical recommendations.

(b) Homebound or hospitalized elementary special education students and elementary special education students whose IEPs call for tutorial services outside school shall receive instruction sufficient to provide a FAPE pursuant to their IEPs, for no less than six hours per week unless inconsistent with medical recommendations.

(c) Homebound or hospitalized secondary special education students and secondary special education students whose IEPs call for tutorial services outside school, shall receive instruction sufficient to provide a FAPE pursuant to their IEPs for no less than an average of two hours per subject per week unless inconsistent with medical recommendations.

2365 PARENTAL RIGHTS AND CONFIDENTIALITY OF INFORMATION

2365.1 Parental Rights.

2365.1.1 Notice: Content of Notice ( 34 C.F.R. § 300.503 )

An LEA shall provide written notice to the parent or guardian of a student within a reasonable time before it proposes to initiate or change, or refuses to initiate or change, a student's identification, evaluation, educational placement, or the provision of a free appropriate public education. This written notice shall contain:

(a) A description of the action proposed or refused by the LEA;

(b) An explanation of why the LEA proposes or refuses to take the action;

(c) A description of other options the IEP team considered and reasons these options were rejected;

(d) A description of evaluation procedures, tests, records, or reports upon which the action is based;

(e) A description of other factors that are relevant to the proposed or refused action;

(f) A statement that the parents of special education students have procedural protections as set forth in the Parental Rights in Special Education Notice developed by the AOE and, if this notice is not pertaining to an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(g) Sources for parents to contact to obtain assistance in understanding the provisions of their parental rights in special education; and

(h) The prior written notice shall be:

(1) Written in language understandable to the general public.

(2) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

(3) If the native language or other mode of communication of the parent is not a written language, the LEA shall take steps to ensure--

(i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;

(ii) That the parent understands the content of the notice; and

(iii) That there is written evidence that the requirements in subsections (i) and (ii) have been met.

(4) Available to the parent by electronic mail, if the LEA makes that option available and the parent elects to receive notices through this mode of communication.

2365.1.2 Procedural Safeguards Notice ( 34 C.F.R. § 300.504 )

(a) A copy of the Parental Rights in Special Education Notice shall be given to the parents only one time a year, except that a copy also shall be given to the parents upon:

(1) Initial referral or parent request for an evaluation;

(2) Receipt of the first administrative complaint under Rule 2365.1.5 or a due process complaint under Rule 2365.1.6 in that school year;

(3) Request by a parent; and

(4) In accordance with the discipline procedures in Rule 4313.1.

(b) The Parental Rights notice includes a full explanation of all of the procedural safeguards available to the parent as they relate to:

(1) Independent educational evaluation;

(2) Prior written notice;

(3) Parental consent;

(4) Access to educational records;

(5) The opportunity to present and resolve complaints through the due process complaint and administrative complaint procedures, including:

(i) The time period in which to file a complaint;

(ii) The opportunity for the agency to resolve the complaint; and

(iii) The difference between the due process complaint and the State administrative complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;

(6) The child's placement during pendency of due process complaint proceedings;

(7) Procedures for students who are subject to placement in an Interim Alternative Educational Setting (IAES);

(8) Requirements for unilateral placement by parents of children in private independent schools at public expense;

(9) The availability of mediation;

(10) Due process hearings, including requirements for disclosure of evaluation results and recommendations;

(11) Civil actions including the time period in which to file those actions; and

(12) Attorneys' fees.

(c) The Parental Rights notice shall be:

(1) Written in language understandable to the general public;

(2) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the LEA shall take steps to ensure:

(i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;

(ii) That the parent understands the content of the notice; and

(iii) That there is written evidence that (i) and (ii) above have been met.

2365.1.3 Parental Consent ( 34 C.F.R. § 300.300 )

(a) Informed parental consent shall be required:

(1) Before conducting an initial evaluation or reevaluation which consists of more than a review of existing data pursuant to Rule 2362.2.1 and 2362.2.3;

(2) Before the initial provision of special education and related services pursuant to Rule 2363.9. Consent for initial evaluation may not be construed as consent for initial provision of special education services.

(b) Consent, where given:

(1) Shall be after the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication; and

(2) Shall be in writing and shall indicate that it is given voluntarily with the knowledge that it may be revoked at any time, with the understanding that the revocation is not retroactive.

(c) Parental consent is not required:

(1) Before reviewing existing data as part of an evaluation or a reevaluation;

(2) Before administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children; or

(3) Before a reevaluation, if the LEA can demonstrate that it has taken reasonable measures to obtain consent and the parent failed to respond.

(d) If the parents of a child refuse consent for an initial evaluation or a re-evaluation which includes the gathering of new information:

(1) The LEA may continue to pursue these evaluations by seeking mediation, using due process, or reviewing existing data.

(2) The LEA may decide not to pursue the evaluation and shall document its justification for doing so in the child's record.

(3) If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under subsection (a)(1), or the parent fails to respond to a request to provide consent, the LEA may pursue the initial evaluation of the child by utilizing mediation or due process. The public school shall not have violated its obligation to locate, identify, and evaluate children suspected of being children with disabilities if it declines to pursue an evaluation to which a parent has failed to consent.

(e) Except as otherwise provided in these regulations, an LEA may not use a parent's refusal to consent to an initial evaluation to deny the parent or child any LEA service, benefit, or activity outside of special education.

2365.1.4 Mediation ( 34 C.F.R. § 300.506 )

(a) A mediation process administered by the Secretary shall be available to parents of students with disabilities, LEAs, and other public agencies with a special education dispute, including matters arising prior to the filing of a due process complaint.

(b) The mediation process shall be voluntary on the part of the parties and shall not be used to deny or delay a parent's right to file a due process complaint or right to a due process hearing or any other rights. Mediation may be terminated at any time by any of the parties or by the mediator.

(c) The Secretary shall provide the services of mediators at no cost to the parties.

(d) Written requests for mediation shall be submitted to the Vermont Agency of Education, Special Education Mediation Service (AOE-SEMS). Upon receipt of such request, the Agency shall send each parent who requests mediation the Parents' Rights in Special Education Notice and shall send its mediation procedures to all parties to the mediation. The agreement to mediate shall be in writing on a form approved by the Secretary and signed by all parties. If the request cannot be in writing due to special circumstances, such as an inability to communicate in writing, the request may be made through other means of communication.

(e) The Agency of Education shall maintain a list of qualified and impartial mediators who are trained in effective mediation techniques.

(f) Mediators shall:

(1) Be knowledgeable in law and regulations relating to the provision of special education and related services.

(2) Not be employees of the Agency, an LEA, or any other public agency that is involved in the education or care of the child and shall not have any personal or professional conflicts of interest.

(3) Be assigned to a case by the Secretary on a random, rotational, or other impartial basis from the list.

(4) Be assigned to a case by the Agency no later than five days from receipt of a joint written request for mediation or upon receipt of one party's written request and telephone or other confirmation by the other party or parties.

(g) Each party to mediation shall ensure that a person in attendance has decision-making authority for the party.

(h) Parents may be accompanied to the mediation by legal counsel, an advocate, a support person, and/or family members. If the parents plan to be accompanied to the mediation by legal counsel, they shall notify the LEA prior to the mediation. LEAs may be accompanied by legal counsel in the mediation only when the parents are accompanied by legal counsel in the mediation.

(i) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties. If the mediation was initiated subsequent to the initiation of a due process of the same matter, but not after the resolution period in Rule 2365.1.6.8 has lapsed, the due process timeline of Rule 2365.1.6 shall commence following the end of the resolution period.

(j) The parties to mediation shall be required to sign a confidentiality pledge prior to the commencement of the mediation to ensure that all discussions that occur during mediation remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding, except pursuant to subsection (k)(1) of this rule.

(k) If the parties resolve a dispute through the mediation process, the parties shall execute a legally binding agreement that sets forth that resolution and that:

(1) States that all discussions that occurred during the mediation process will remain confidential; the mediator shall not be called as a witness in any future due process proceeding to testify regarding any information gained during the course of mediation. Any statements made at the mediation shall not be used as evidence in any subsequent due process hearing or civil proceeding arising from that dispute; however, signed mediation agreements may be released for the purpose of enforcement thereof in a due process proceeding or court of competent jurisdiction; and

(2) Is signed by the parent, a representative of each other party who has the authority to bind such party, and the mediator. The mediation agreement shall be confidential unless otherwise agreed upon; however, a copy shall be provided to the Vermont Agency of Education.

(3) Is enforceable in a due process proceeding, any state court of competent jurisdiction, or in a district court of the United States.

(l) The mediation agreement shall become a part of the child's educational record or the parties shall, at a minimum, reference relevant provisions of the mediation agreement in the child's IEP.

2365.1.5 Administrative Complaints ( 34 C.F.R. § 300.151 )

(a) Any person or organization alleging that an LEA or public agency has violated a requirement of Part B of the IDEA or implementing federal or State special education regulations, may file a signed written complaint with the Secretary of Education.

(b) The complaint may be filed utilizing the available state form, or other form, and shall include-

(1) A statement that a public agency has violated a requirement of Part B of the IDEA;

(2) The facts on which the statement is based;

(3) The signature and contact information for the complainant; and

(4) If alleging violations against a specific child:

(i) The name, age, and address of the residence of the child;

(ii) The name of the school the child is attending;

(iii) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. § 11434a(2) ), available contact information for the child, and the name of the school the child is attending;

(iv) A description of the nature of the problem of the child, including facts relating to the problem; and (v) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(c) Except for due process complaints covered under Rule 2365.1.6, the complaint shall allege a violation that occurred not more than one year prior to the date that the complaint is received.

(d) The party filing the complaint shall forward a copy of the complaint to the LEA or public agency serving the child at the same time the party files the complaint with the Secretary of Education.

(e) The Secretary will not accept a complaint that fails to comply with (b) through (d).

(f) Upon receipt of a complaint, the Secretary shall inform the complainant and the LEA of the option to use mediation.

The Secretary shall appoint a complaint investigator to conduct an investigation.

(1) The complaint investigator shall examine evidence presented on behalf of the complainant and on behalf of the LEA.

(2) At the discretion of the complaint investigator, the complaint may be investigated by way of a document review, meeting, hearing, on-site investigation, or any combination thereof. The complaint investigator will give the LEA the opportunity to respond to the complaint and at the LEA's discretion, the opportunity to respond with a proposal to resolve the complaint. Once the Secretary notifies the complainant that s/he has received the complaint, the investigator will give the complainant 15 days to submit additional information either orally or in writing about the allegations in the complaint.

(3) If a hearing is scheduled, the complaint investigator shall have the powers and duties set forth below:

(i) Conduct pre-hearing conferences;

(ii) Conduct any hearings that may be required;

(iii) Prepare proposed findings of facts and conclusions of law for a decision by the Secretary; and

(iv) Any other powers and duties set forth in State Board of Education Rule 1236.1.

(4) No later than 60 days after receipt of the complaint, the Secretary shall issue a written decision. This time limit may be extended only if exceptional circumstances exist with respect to a particular complaint or if the complainant and the LEA agree to extend the time to engage in mediation.

(g) If the Secretary determines that the LEA has violated a requirement of Part B of the IDEA or implementing federal or State special education regulations, the investigation report shall address how to remediate the violation as well as any resulting denial of those services, including, as appropriate, requiring the evaluation planning team or IEP team to reconvene to reconsider an evaluation determination or offer of special education and related services, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child, as well as appropriate future provision of services for all children with disabilities.

(h) Administrative Complaints filed under this rule and due process hearings filed under Rule 2365.1.6 are subject to the following:

(1) If a written complaint is received that is also the subject of a due process hearing, or contains multiple issues, of which one or more are part of that hearing, the Secretary shall set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action shall be resolved using the time limit and procedures described above.

(2) If the subject of an administrative complaint filed under this rule has previously been decided in a due process hearing involving the same parties:

(i) The due process hearing decision is binding; and

(ii) The Secretary shall inform the complainant to that effect.

(3) If a parent, who prevailed at a due process hearing, files an administrative complaint alleging that an LEA failed to implement the hearing officer's decision, the Secretary shall resolve the complaint.

(i) The Secretary's written decision in subsection (f)(4) is not subject to appeal. Nothing herein shall be interpreted to preclude a parent or an LEA from filing a due process complaint on any matters regarding the identification, evaluation, or placement of the child or the provision of a FAPE pursuant to Rule 2365.1.6.2. If a parent or LEA files a due process complaint pursuant to Rule 2365.1.6.2 and the matter was previously the subject of an administrative complaint, the hearing officer will hear the case de novo (anew).

(j) A complaint may also be filed regarding provision of Part C of the IDEA. Investigation of a Part C complaint shall be completed in coordination with the Agency of Human Services, Department of Health, Child Development Division. A written complaint should be sent to the Director of the Children's Integrated Services/Early Intervention (CIS/EI) and the Secretary of Education.

2365.1.6 Due Process Complaint Procedures

2365.1.6.1 Timeliness of Due Process Complaint Request

(a) A written due process complaint notice shall be filed with the Secretary:

(1) Within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process complaint.

(2) Notwithstanding (1) above, within 90 days of a unilateral special education placement by the child's parent, where the request is for reimbursement of the costs of such placement.

(3) Exceptions to the timeline. The timelines described in (a)(1) and (2) above do not apply to a parent if the parent was prevented from filing a due process complaint due to:

(i) Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or

(ii) The LEA's withholding of information from the parent that was required under this part to be provided to the parent.

(4) Where the parent has not been given proper notice of special education rights under state and federal law, including notice of the limitations in this section, such limitations shall run from the time notice of those rights is properly given.

(5) With same day notification to the LEA pursuant to rule 2365.1.6.3.

2365.1.6.2 Initiation of Due Process Hearing by a Parent, an LEA, or the Secretary ( 34 C.F.R. §§ 300.508 and 509 )

(a) The Secretary shall make available a model form for a parent or LEA to use to initiate a due process complaint. However, the Secretary may not require the use of this model form. If the parent or LEA use a document other than the model form, that document shall meet the content requirements for filing a due process complaint in subsection (c).

(b) A parent or an LEA may file a due process complaint on any matters regarding the identification, evaluation, or placement of the child or the provision of a free appropriate public education by sending a written Due Process Complaint Notice to the Secretary with a copy sent to the other party. If the notice cannot be in writing due to special circumstances, such as an inability to communicate in writing, the notice may be made through other means of communication.

(c) The party requesting a hearing shall submit the written due process complaint to the Secretary and to all other parties, which shall contain the following information:

(1) The name and date of birth of the child;

(2) The address of the residence of the child; in the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. § 11434a(2) ), available contact information for the child;

(3) The name of the school the child is attending;

(4) A description of the nature of the problem relating to the proposed, or refused initiation or change of the child's identification, evaluation, and/or educational placement, and the facts relating to the problem; and

(5) A proposed resolution of the problem to the extent known and available to the complainant at the time.

(d) A party may not have a hearing on a due process complaint or engage in a resolution session until the party, or the attorney representing the party, files a due process complaint that meets the requirements of subsection(c) above.

(e) The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the complaint filed, unless the other parties agree otherwise.

(f) The Secretary may request a due process hearing in accordance with 16 V.S.A. § 2958(c)(1) to challenge the need for residential placement where the residential placement review team recommends that a less restrictive educational placement is both available and appropriate for a child who is eligible for special education services.

(g) If a parent requests the information or if a due process complaint notice is received, the Secretary shall inform the parent of any free or low-cost legal and other relevant services available in the area.

2365.1.6.3 Notification by Secretary to LEA of Receipt of Request for Hearing

If the due process complaint is initiated by a parent, the Secretary shall within 24 hours notify the LEA by facsimile transmission, telephone, or electronic mail, confirmed in writing by first class mail. Notification to the LEA by the Agency shall be made specifically to the special education administrator, if the LEA has a special education administrator on staff. If the LEA does not have a special education administrator on staff, notification to the LEA shall be made to the superintendent.

2365.1.6.4 Commencement of the Due Process Complaint; Elements of Complaint Process

(a) The hearing process shall commence on the date the Secretary receives a request for a hearing. If received outside of regular business hours, the process shall commence on the next business day.

(b) A due process hearing shall include the following:

(1) An initial telephone conference call pursuant to Rule 2365.1.6.7.

(2) A prehearing conference as in Rule 2365.1.6.11 for the due process hearing, that results in a hearing officer's prehearing order.

(3) A hearing that, except for good cause shown, shall be limited to two business days. The hearing officer will grant additional time only if necessary for a full, fair disclosure of the facts necessary to arrive at a conclusion.

(4) A hearing officer's decision pursuant to Rule 2365.1.6.16 that shall be the final decision of the Agency of Education.

2365.1.6.5 Sufficiency of Complaint

(a) The due process complaint shall be deemed sufficient unless an opposing party receiving the due process complaint notifies the hearing officer and the complaining party in writing, within 15 days of receipt of the due process complaint, that the opposing party believes that the due process complaint does not meet the requirements in Rule 2365.1.6.2. Filing of such a notification by an opposing party shall not be grounds to delay the resolution session required under Rule 2365.1.6.8.

(b) Within five days of receipt of notification under subsection (a), the hearing officer shall make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of Rule 2365.1.6.2, and shall immediately notify the parties in writing of that determination and the status of the due process complaint. If the hearing officer determines that the due process is insufficient, he or she shall identify how the complaint is insufficient.

(c) A party may amend its due process complaint only if:

(1) The other party's consent in writing to the amendment and are given the opportunity to resolve the amended due process complaint through a resolution meeting held pursuant to Rule 2365.1.6.8; or

(2) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

(d) If a party files an amended due process complaint, the timelines for the resolution session and the resolution period begin again with the filing of the amended due process complaint.

2365.1.6.6 Response to Issues Raised in Complaint ( 34 C.F.R. § 300.508 )

(a) LEA Response:

(1) If the LEA has not sent a prior written notice under Rule 2365.1.1 to the parent regarding the subject matter contained in the parent's due process complaint, the LEA shall, within ten days of receiving the due process complaint, send to the parent a response that includes:

(i) An explanation of why the agency proposed or refused to take the action raised in the due process complaint;

(ii) A description of other options that the IEP team considered and the reasons why those options were rejected;

(iii) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

(iv) A description of other factors that are relevant to the agency's proposed or refused action.

(2) A response by the LEA under subsection (a)(1) shall not be construed to preclude the LEA from asserting that the parent's due process complaint was insufficient.

(b) Party Other Than an LEA Response. Except as provided in subsection (a), the party receiving a due process complaint shall, within ten days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.

2365.1.6.7 Scheduling of Resolution Session, Mediation, Prehearing Conference, and Due Process Hearing

(a) Within three business days of receipt of the complaint, the Secretary shall schedule and notify the parties in writing of the following:

(1) The appointed hearing officer to preside at the due process hearing;

(2) The time and date of an initial telephone conference call with the hearing officer to be held with the parties or their attorneys no later than five business days from receipt of the complaint;

(3) The legal authority under which the hearing is held;

(4) A copy of the request for due process hearing;

(5) The right to have an attorney present to represent each party at the party's expense with the exception of Rule 2365.1.6.8 (iii); and

(6) Information for the parent regarding any free or low-cost legal and other relevant services available in the area.

(b) In the initial telephone conference call, the hearing officer will establish and issue a due process scheduling order detailing the following:

(1) Whether the parties have agreed to waive in writing the resolution session and if they intend to attempt mediation.

(2) If the resolution session is not waived, a date and time for the resolution session.

(3) If the resolution session is waived and mediation accepted, the hearing officer will notify the Agency of a date by which mediation shall occur, and the Agency will assign a mediator.

(4) If the resolution session is waived and mediation rejected, the hearing process will commence consistent with the timelines in Rule 2365.1.6.8.

(5) The dates for the prehearing conference, five-day rule disclosure, due process hearing, and final decision using the timelines in Rules 2365.1.6.7, 2365.1.6.9, and 2365.1.6.16.

(6) If both parties agree, the hearing officer may also address any concerns about the sufficiency of the complaint.

(7) The hearing officer may also address any modifications to Rule 2365.1.6 necessary to address special circumstances, such as a party's inability to communicate in writing or disability.

(8) The scheduling shall allow for the following:

(i) A date for a resolution session or a date by which mediation shall occur, if the parties so decide;

(ii) A half business day for a prehearing conference; and

(iii) Two business days for a hearing, except for good cause shown pursuant to Rule 2365.1.6.4 and Rules 2365.1.6.15.

2365.1.6.8 Resolution Session ( 34 C.F.R. § 300.510 )

(a) Convening a Resolution Session

(1) The LEA shall convene a resolution session on the date scheduled by the hearing officer at the initial conference, if the parties have not been able to agree on a mutually convenient time and date. The resolution session shall be held no later than 15 days after receiving notice of the due process complaint. The session will include the parents and the relevant member or members of the IEP team who have specific knowledge of the facts identified in the due process complaint, and:

(i) Shall include a representative of the LEA who has decision-making authority on behalf of the LEA;

(ii) The LEA and the parents determine the relevant members of the IEP team to attend the session; and

(iii) May not include an attorney of the LEA unless the parent is accompanied by an attorney.

(2) The purpose of the session is for the party filing the complaint to discuss their due process complaint, and the facts that form the basis of the due process complaint, so that the other party has the opportunity to resolve the dispute that is the basis for the due process complaint.

(3) The parties may agree in writing that discussions that occur during the resolution session are confidential and may not be used as evidence in any subsequent due process hearing or civil proceedings arising from that dispute.

(4) The session described in subsections (a)(1) and (2) need not be held if:

(i) The parents and the LEA agree in writing to waive the session and so notify the hearing officer; or

(ii) The parents and the LEA agree to use the mediation process described in Rule 2365.1.4 and so notify the hearing officer.

(b) Resolution Period

(1) If the LEA has not resolved the due process complaint to the satisfaction of the parents within 30 days of the receipt of the due process complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing shall commence.

(2) The timeline for issuing a final decision under Rule 2365.1.16 begins at the expiration of this 30-day period.

(3) If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented by making a record of its attempts to arrange a mutually agreed upon time and place), the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent's due process complaint.

(4) If the LEA fails to hold the resolution session within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the hearing officer to begin the due process hearing timeline.

(5) Adjustments to the 30-day resolution period. The 45-day timeline for the due process hearing in Rule 2365.1.6.16 starts the day after one of the following events:

(i) Both parties agree in writing to waive the resolution meeting and reject mediation;

(ii) After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible;

(iii) If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or LEA withdraws from the mediation process.

(6) The timelines for resolution session may be shortened pursuant to an expedited hearing request under Rule 2365.1.6.17.

(c) Written settlement agreement. If a resolution to the dispute is reached at the session described in paragraph (a) of this section, the parties shall execute a legally binding agreement that is:

(1) Signed by both the parent and a representative of the LEA who has the authority to bind the LEA; and

(2) Enforceable by filing in any state court of competent jurisdiction or in a district court of the United States.

(d) Agreement review period. If the parties execute an agreement pursuant to subsection (c), a party may void the agreement within three business days of the agreement's execution. Nothing in this rule shall preclude either party from consulting with an attorney at any time.

2365.1.6.9 Time of Hearing; Withdrawal or Other Action for Dismissal of Hearing

(a) The hearing shall be scheduled to begin as soon as possible but no later than 35 days after expiration of the resolution period pursuant to Rule 2365.1.6.8, provided that when an expedited hearing under Rule 2365.1.6.17 is requested, the hearing shall be scheduled to begin no later than 20 days after the receipt of the request by the Secretary.

(b) A parent may withdraw a request for a due process hearing without prejudice until such time as the parent retains legal counsel. "Withdrawal without prejudice" does not stop or in any other way alter the statutory period(s) of limitations described in Rule 2365.1.6.1.

(c) Upon motion by a party or by independent action of the hearing officer, the hearing officer may order dismissal of a complaint for failure of any party to prosecute.

2365.1.6.10 Voluntary Production of Information; Motion for Production of Information

(a) Each party shall attempt in good faith to make a complete response to requests, as soon as practicable, for the voluntary production of information.

(b) When a dispute between parties arises concerning a request for the voluntary production of information, releases or documents, any party may file a motion requesting that the hearing officer order the parties to comply with information requests.

(1) The motion shall be filed at least seven business days before the prehearing conference, and a response shall be filed and provided to the moving party at least one business day prior to the prehearing conference, or as soon as possible after receiving a notice of intent to object to all or part of a request for production.

(2) The moving party's motion shall:

(i) List with specificity the information it is seeking to discover; and

(ii) Set forth in detail those factors which it believes justify its request for information.

(3) When a party has demonstrated that such request for information is relevant to the issues described in the hearing notice or identified by the hearing officer as a result of the prehearing conference and is necessary for a full and fair presentation of the evidence at the hearing, the hearing officer shall grant the motion.

2365.1.6.11 Prehearing Conference Procedures

(a) The prehearing conference required by Rule 2365.1.6.4 shall be conducted by a hearing officer at a neutral site located in or near the LEA in which the due process matter is pending. The prehearing conference shall be as follows:

(1) Detailed Written Statement: At least three days before the prehearing conference, the complaining party shall provide the hearing officer and the opposing party a detailed written statement of what he/she believes are the issues to be addressed in the due process hearing, including any procedural violations. At least one day before the prehearing conference, the opposing part(ies) shall provide to the hearing officer and the complaining party a detailed written statement of any defenses. Any procedural violations known to a party or defenses not raised at or before the prehearing conference may be excluded at the due process hearing at the discretion of the hearing officer.

(2) Witness List: At the prehearing conference, the parties shall provide to the hearing officer and the opposing parties a preliminary list of the witnesses they plan to call and a general summary of the testimony they expect from each witness. This list may be supplemented at the time of the final five-day rule submissions.

(3) Statement of Facts: No later than the prehearing conference, each party shall provide to the hearing officer and the opposing party, a statement of facts. The intent of the statement of facts is to outline those facts which are not expected to be contested, so that only those issues which remain in dispute need be addressed at the hearing.

(4) Core Exhibits: No later than the prehearing conference, the LEA shall submit to the hearing officer and the parents a binder of proposed core exhibits consisting of the relevant portions of the student's file that the LEA expects will be introduced. Either party may supplement but not duplicate those proposed exhibits with the other material as long as the supplement is received by the hearing officer and the opposing party at least five days before the hearing.

(5) Order of Presentation at Hearing: The party that has initiated the hearing shall present its case first unless the hearing officer determines that the change in order of presentation would not materially prejudice any party's right to a full and fair hearing, and:

(i) The hearing would proceed in a more timely manner if the party not initiating the hearing presents their case first; or

(ii) The hearing would proceed in a more efficient manner if the party not initiating the hearing presents their case first.

(6) Hearing Officer's Prehearing Order: Following the prehearing conference, the hearing officer shall issue a prehearing order containing rulings on any motions heard at the conference, any decisions made about evidence or order of presentation, scheduling, or other related matters, and a clear and specific identification of the issues to be heard.

(7) Record of the Prehearing Conference: The hearing officer shall ensure that an electronic verbatim record shall be made of the prehearing conference. The recording shall become a part of the record of the case. Copies shall be made available to the parties on request.

2365.1.6.12 Use of Affidavits

(a) At hearing, parties may submit otherwise admissible testimony, in whole or in part, in the form of affidavits, so long as the witnesses are present at hearing for cross-examination by the opposing party.

(b) Testimony may also be submitted at hearing by affidavit, without an opportunity to cross examine the witness, by prior agreement of the opposing party.

(c) Affidavits to be introduced as evidence at hearing shall be disclosed to the opposing party no fewer than three business days prior to the hearing.

2365.1.6.13 Final Disclosure of Evidence Occurring Five Days before Hearing.

(a) At least five business days prior to a hearing, each party shall disclose to all other parties all evidence, including a final witness list with a brief description of each witness's testimony and copies of documentary evidence including all evaluations completed by that date and recommendations based on such evaluations, that the party intends to use at the hearing. If neither party objects, the parties shall submit copies of their exhibits to the hearing officer two business days prior to a hearing.

(b) Any evidence supplementing the core exhibits shall be legibly labeled in the upper right-hand corner with consecutive Arabic numerals as either "LEA Exhibit (number)" or "Parent Exhibit (number)", as appropriate. An index, by title, of all exhibits submitted shall also be exchanged.

(c) Unless the other party consents to the inclusion, a hearing officer may exclude evidence, including an evaluation or recommendation, not disclosed in accordance with this section.

2365.1.6.14 Notification Concerning Agreement

(a) If the parent and the LEA reach a settlement agreement prior to the hearing, the LEA shall notify the hearing officer in writing and include a written statement signed by both parties requesting the cancellation of the hearing and the dismissal of the case with prejudice.

(b) A settlement agreement, whether reached through a resolution session, mediation, or other means of negotiation between the parties, shall not constitute a final decision or order of the hearing officer.

(c) A legally binding settlement agreement, whether reached through a resolution session subject to a review period pursuant to Rule 2365.1.6.8, mediation, or other means of negotiation between the parties, shall be enforceable in a due process hearing, any State court of competent jurisdiction, or in a district court of the United States.

2365.1.6.15 Hearing Procedures ( 34 C.F.R. § 300.512 )

(a) All hearings shall be electronically recorded by the hearing officer or his/her designee. The hearing officer shall also arrange for a stenographic recording of the hearing.

(b) The order of the presentation shall be determined pursuant to Rule 2365.1.6.11.

(c) Any party to a due process hearing has the right to:

(1) Be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

(2) Present evidence and confront, cross-examine, and compel the attendance of witnesses and the production of relevant documents.

(3) Request that the hearing officer prohibit the introduction of affidavits pursuant to Rule 2365.1.6.12 that have not been disclosed to that party at least three business days before the hearing or any other evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;

(4) Obtain a written, or at the option of the parents, electronic, verbatim record of the completed hearing; and

(5) Obtain written, or, at the option of the parents, electronic findings of fact and decisions.

(6) The record of the hearing and the findings of fact and decisions shall be provided at no cost to the parents.

(d) Parents involved in a hearing may:

(1) Have the child who is the subject of the hearing present; and

(2) Open the hearing to the public. If a due process hearing is open to the public, the hearing officer shall seat the members of the public in such a way that does not interfere with the proceedings.

(e) Each party shall have one day to present its case, unless the hearing officer determines that additional time is necessary for a full, fair disclosure of the facts necessary to arrive at a conclusion. The party filing the due process complaint has the burden of proof. The time allowed for each party's presentation shall include both direct examination of its witnesses and cross examination of its witnesses by the opposing party.

(f) The hearing officer may limit the number and examination of witnesses to eliminate redundant, cumulative, or irrelevant testimony.

2365.1.6.16 Decision; Extension of 45-Day Period ( 34 C.F.R. § 300.515 )

(a) The shall ensure that not later than 45 days after expiration of the resolution period under Rule 2365.1.6.8:

(1) A final decision is reached in the hearing;

(2) A copy of the decision is sent by first class mail to each of the parties; and

(3) The final decision includes a statement regarding the appeal rights pursuant to Rule 2365.1.8.

(b) A hearing officer may grant extensions of time beyond the period set out in (a) above, except as to expedited hearings, for specific periods of time at the request of either party if:

(1) The child's educational progress or well-being would not be jeopardized by the delay;

(2) The party would not have adequate time to prepare and present the party's position at the hearing in accordance with the requirements of due process; and

(3) The need for the delay is greater than any financial or other detrimental consequences likely to be suffered by a party in the event of the delay.

(c) Decision of hearing officer

(1) Subject to subsection (2) below, a hearing officer shall make a decision on substantive grounds based on a determination of whether the child received a FAPE.

(2) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies:

(i) Impeded the child's right to a FAPE;

(ii) Significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents' child; or

(iii) Caused a deprivation of educational benefit.

(3) Nothing in this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under Rule 2365.1 through 2365.1.13.

(4) The Vermont Agency of Education, after deleting any personally identifiable information, shall:

(i) Transmit the hearing officer's findings and decisions to the State Special Education Advisory Panel; and

(ii) Make those findings and decisions available to the public.

2365.1.6.17 Expedited Due Process Hearings

(a) An expedited due process hearing procedure shall be available for disciplinary issues in accordance with Rule 4313.3.

(b) The expedited procedure shall provide a full due process hearing consistent with the requirements of Rules 2365.1.6.2, 2365.1.6.3, 2365.1.6.4, 2365.1.6.7, 2365.1.6.8, 2365.1.6.10 through 2365.1.6.16, but under a restricted time schedule as set out in subsections (c)-(j) of this section.

(c) Expedited hearings shall:

(1) Not exceed two days; and

(2) Be scheduled to be heard within 20 school days where the issue before the hearing officer will be whether there is a substantial likelihood of injury to self or others if the child is returned to the placement from which the child was removed.

(d) Upon being appointed, the hearing officer shall immediately arrange with the parties two days of hearing to occur within 20 school days of the filing of a complaint under Rule 2365.1.6.17. At the same time, the hearing officer shall schedule an expedited resolution session to be held no later than seven days of the receipt of the written complaint. Unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the complaint, the due process hearing may proceed. The hearing officer shall schedule a prehearing conference prior to the hearing.

(e) At least five business days prior to the hearing, each party shall disclose to all other parties all evaluations completed by that date and evidence to be offered at the hearing, and recommendations based on the offering party's evaluations that the party intends to use at the hearing. Any party to the hearing has the right to request that the hearing officer prohibit the introduction of evidence at the hearing that has not been disclosed to that party at least five business days before the hearing.

(f) Except for the timelines in subsections (c)(2), (d), (e), and (h), the hearing officer may waive any of the procedures in this section in a case, but only to the extent necessary to preserve the full and fair nature of the due process hearing. At the agreement of both parties, the hearing officer may reduce the timelines in subsections (c)(2), (d), (e), and (h).

(g) The hearing officer shall render a decision, including findings of fact and conclusions of law.

(h) The hearing officer shall mail a written decision to the parties by first class mail within ten school days following the hearing.

(i) Any party aggrieved by a decision of the hearing officer may appeal the decision as provided in Rule 2365.1.8.

2365.1.7 Impartial Hearing Officer ( 34 C.F.R. § 300.514 )

(a) A hearing may not be conducted by a person who is an employee of the Agency of Education or the LEA, or by any person having a personal or professional interest that would conflict with his or her objectivity in the hearing. A person who otherwise qualifies to conduct a hearing is not an employee of the Agency solely because he or she is paid by the Agency to serve as a hearing officer.

(b) The hearing officer shall be a licensed attorney who:

(i) Has the knowledge of, and the ability to understand, the provisions of the IDEA, federal and state regulations pertaining to the Act, and legal interpretations of the Act by federal and state courts;

(ii) Has the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(iii) Has the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(c) The Agency shall keep a list of individuals to serve as hearing officers and that list shall contain a statement of the qualifications of each of those persons.

2365.1.8 Finality of A Due Process Hearing Decision; Appeal ( 34 C.F.R. § 300.514 )

(a) The decision of a hearing officer is final unless appealed to a state or federal court of competent jurisdiction.

(b) Parties have right to appeal the hearing decision by filing a civil action in a federal district court or a state court of competent jurisdiction in accordance with Rule 2365.1.9.

2365.1.9 Civil Action ( 34 C.F.R. § 300.516 )

(a) Any party aggrieved by the findings and decision arising out of a due process hearing pursuant to Rule 2365.1.6 has the right to bring a civil action with respect to the matter. The action shall be commenced within 90 days of the hearing officer's decision in a state court of competent jurisdiction or in a district court of the United Statewithout regard to the amount in controversy.

(b) An award of attorneys' fees may be made pursuant to Rule 2365.1.10.

(c) In any action brought under paragraph (a) of this rule, the court:

(1) Receives the records of the administrative proceedings;

(2) Hears additional evidence at the request of a party; and

(3) Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

(d) Nothing in this rule restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under section 615 of the Act, the procedures under Rule 2365.1.6 shall be exhausted to the same extent as would be required had the action been brought under section 615 of the Act.

2365.1.10 Attorneys' Fees ( 34 C.F.R. § 300.517 )

(a) In any action or proceeding brought under Section 1415 of the IDEA, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to--

(1) The prevailing party who is the parent of a child with a disability;

(2) To a prevailing party who is the Vermont Agency of Education or an LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(3) To a prevailing party who is the Vermont Agency of Education or an LEA against the attorney of a parent, or against the parent, if the parent's request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

(b) Prohibition on use of funds.

(1) Funds under Part B of the IDEA may not be used to pay attorneys' fees or costs of a party related to any action or proceeding under Section 1415 of the IDEA and subpart E of the federal regulations relating to procedural safeguards.

(2) Subsection (b)(1) above does not preclude a public agency from using funds under Part B of the Act for conducting an action or proceeding under Section 1415 of the IDEA.

(c) A court, in its discretion, may award reasonable attorneys' fees under Section 1415 of the IDEA consistent with the following:

(1) Fees awarded under Section 1415 of the IDEA shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this paragraph.

(2)

(i) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Section 1415 of the IDEA for services performed subsequent to the time of a written offer of settlement to a parent if:

(A) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins;

(B) The offer is not accepted within ten days; and

(C) The court or hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

(ii) Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action.

(iii) A resolution session conducted pursuant to Rule 2365.1.6.8 shall not be considered:

(A) A meeting convened as a result of an administrative hearing or judicial action; or

(B) An administrative hearing or judicial action for purposes of this rule.

(3) Notwithstanding subsection (c)(2) above, an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

(4) Except as provided in subsection (c)(5), the court reduces, accordingly, the amount of the attorneys' fees awarded under Section 1415 of the IDEA, if the court finds that:

(i) The parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(ii) The amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skills, reputation, and experience;

(iii) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

(iv) The attorney representing the parent did not provide to the LEA the appropriate information in the due process request notice in accordance with Rule 2365.1.6.2.

(5) The provisions of subsection (c)(4) do not apply in any action or proceeding if the court finds that the State or LEA unreasonably protracted the final resolution of the action or proceeding or there was a violation of Section 1415 of the IDEA.

2365.1.11 Child's Status During Proceedings ( 34 C.F.R. § 300.518 )

(a) Unless placed in an interim alternative educational setting pursuant to Rules 4313.1, 4313.2, and 4313.4, the student shall remain in his or her current placement while waiting for the decision in a due process hearing or appeal, unless the State or the LEA and the parents of the student agree to another placement. The current placement shall be the placement that was in the last implemented IEP.

(b) If the due process hearing involves an application for initial enrollment in public school, the student, with the consent of the parents, shall be placed in the public school until the completion of all the proceedings.

(c) If the complaint involves an application for initial services under Part B from a child who is transitioning from Part C of the IDEA to Part B and is no longer eligible for Part C services because the child has turned three, the LEA is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under Rule 2365.1.3, then the LEA shall provide those special education and related services that are not in dispute between the parent and the LEA.

(d) If the decision of a hearing officer in a due process hearing agrees with the child's parents that a change of placement is appropriate, that placement shall be treated as an agreement between the State and the parents for purposes of subsection (a), above.

2365.1.12 Transfer of Parental Rights at Age of Majority ( 34 C.F.R. § 300.520 )

(a) When a student who is eligible for special education services reaches the age of 18:

(1) The LEA shall provide any notice required by these rules to both the student and his or her parents; and

(2) All other rights accorded to parents under these rules transfer to the student.

(b) When a student who is eligible for special education services reaches the age of 18 and is incarcerated in a correctional institution, all other rights accorded to the parent transfer to the student and any notice required by these rules shall be provided to both the student and the parents.

(c) When a student has been determined to be incompetent under State law, the guardian or educational surrogate parent shall receive any notice required by these rules.

(d) Whenever rights are transferred under this rule, the LEA shall notify the student and the parents of the transfer of rights.

(e) Beginning one year before a student reaches the age of 18, the student's IEP shall include a statement that the student has been informed of his or her rights under the IDEA, if any, that will transfer to the student on reaching the age of 18.

(f) Rights afforded to parents under these rules transfer to the student when the student turns 18 years of age. All references to "parent" shall be read also to refer to a student who has turned 18.

2365.2 Confidentiality of Information and Student Records ( 34 C.F.R. § 300.610 ).

Definitions. For the purposes of Rule 2365.2 through 2365.2.15:

(a) "Destruction" means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

(b) "Education records" means education records as defined in 34 C.F.R. Part 99, Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (FERPA).

(c) "Participating agency" means any agency, school, or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of IDEA.

(d) "Personally identifiable information" means:

(1) The name of a child, the child's parent, or other family member;

(2) The address of the child or the child's parents;

(3) A personal identifier such as the child's social security number or student number; or

(4) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty or make the child's identity easily traceable.

2365.2.1 Notice to Parents ( 34 C.F.R. § 300.612 )

(a) The Vermont Agency of Education shall give notice, to the extent required by federal law, that is adequate to fully inform parents about confidentiality requirements of § 2365., including:

(1) A description of the extent that the notice is given in the native languages of the various population groups in the State;

(2) A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

(3) A summary of the policies and procedures that participating agencies shall follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

(4) A description of all of the rights of parents and children regarding this information, including the rights under FERPA and implementing regulations in 34 C.F.R. Part 99.

(b) Before any major identification, location, or evaluation activity, the notice shall be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of the activity.

2365.2.2 Access Rights to Records ( 34 C.F.R. § 300.612 )

(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the LEA under the IDEA. The participating agency shall comply with a request to inspect and review without unnecessary delay and before any meeting regarding an IEP or any administrative complaint, mediation, resolution session, due process hearing, or expedited hearing, and in no case more than 45 days after the request has been made.

(b) The right to inspect and review education records includes:

(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;

(2) The right to request that the participating agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and

(3) The right to have a representative of the parent inspect and review the records.

(c) A participating agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable Vermont law governing such matters as guardianship, separation, and divorce.

2365.2.3 Record of Access ( 34 C.F.R. § 300.614 )

Each participating agency shall keep a record of parties obtaining access to a child's education records which are collected, maintained, or used under the IDEA, except access by parents and authorized employees of the participating agency. The record shall include the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

2365.2.4 Records on More than One Child ( 34 C.F.R. § 300.615 )

If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

2365.2.5 List of Types and Locations of Information ( 34 C.F.R. § 300.616 )

Each participating agency shall provide parents on request a written list of the types and locations of education records collected, maintained, or used by the agency.

2365.2.6 Fees ( 34 C.F.R. § 300.617 )

(a) A participating agency may charge a fee for copies of records made for parents under these provisions, if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.

(b) A participating agency may not charge a fee to search for or to retrieve information under these provisions.

2365.2.7 Amendment of Records at Parent's Request ( 34 C.F.R. § 300.618 )

(a) A parent or eligible student who believes that information in the education records collected, maintained, or used under this part is inaccurate or misleading or violates the privacy or other rights of the child may request the LEA that maintains the information to amend the information.

(b) The participating agency shall decide whether to amend the information as requested within a reasonable period of time of receipt of the request.

(c) If the participating agency refuses to amend the information as requested, it shall inform the parent or eligible student of the right to a hearing under Rule 2365.2.9.

2365.2.8 Opportunity for a Hearing ( 34 C.F.R. § 300.619 )

The participating agency shall, on request, provide an opportunity for a hearing within the agency where the parent or eligible student may challenge information in education records on the grounds that it is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

2365.2.9 Result of Agency's Hearing ( 34 C.F.R. § 300.620 )

(a) If, as a result of the participating agency's hearing, the agency finds that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it shall amend the information as requested and so inform the parent in writing.

(b) If, as a result of the participating agency's hearing, the agency finds that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it shall inform the parent or eligible student of the right to place in the records it maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the LEA.

(c) Any explanation placed in the records of the child under this section shall:

(1) Be maintained by the participating agency as part of the records of the child as long as the record or contested portion is maintained by the agency; and

(2) Disclose the parent's or eligible student's explanation, if the records of the child or the contested portion are disclosed by the LEA to any party.

2365.2.10 Hearing Procedures ( 34 C.F.R. § 300.621 )

A participating agency shall, at a minimum, meet the following requirements when it conducts a hearing under this section. The agency's hearing shall:

(a) Be held within a reasonable time after the agency received the request for the hearing from the parent or eligible student;

(b) Give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing;

(c) Have the hearing conducted by an official of the agency or other person appointed by the agency, who does not have a direct interest in the outcome of the hearing;

(d) Give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised about information in the record. The parent or eligible student may, at his/her own expense, be assisted or represented by one or more individuals of his/her own choice, including an attorney;

(e) Issue a written decision within a reasonable period of time after the hearing; and

(f) Issue a decision based solely on the evidence presented at the hearing, and shall include a summary of the evidence and the reasons for the decision.

2365.2.11 Consent ( 34 C.F.R. § 300.622 )

(a) With the exception of disclosures permitted to law enforcement and judicial authorities for which parental consent is not required by FERPA, parental consent shall be obtained before personally identifiable information is:

(1) Disclosed to anyone other than officials of participating agencies collecting or using the information, subject to subsections (b) and (c) below; or

(2) Used for any purpose other than meeting a requirement of these rules.

(b) A participating agency subject to these regulations may not release information from education records to other participating agencies without parental consent, unless specifically authorized to do so by FERPA.

(c) Disclosure of special education and disciplinary records may be made without the prior written consent of the parent or a student aged 18 or older, if:

(1) It is made in compliance with a lawfully issued subpoena or court order, and the school has made reasonable attempts to notify the parent or the student aged 18 or older of the order or subpoena before complying with the request, so he or she may seek protective action from the court, such as limiting the scope of the subpoena or quashing it; and

(2) The subpoena or court order mandating disclosure specifies that the existence or the contents of, or the information furnished in response to, such subpoena or court order should not be disclosed by the receiving party; or

(3) It is to law enforcement or other appropriate parties, and, if the required information from the educational records is needed in connection with an emergency and knowledge of the information is necessary to protect the health or safety of the student or other individuals.

(4) If a parent refuses to give written consent when required for disclosure of personally identifiable information, the responsible LEA may seek an order from a due process hearing officer allowing disclosure.

2365.2.12 Safeguards ( 34 C.F.R. § 300.623 )

(a) Each participating agency shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

(b) One official in each participating agency shall be identified as responsible for ensuring the confidentiality of any personally identifiable information.

(c) A participating agency shall have policies or procedures to ensure that all persons collecting or using personally identifiable information receive training or instruction regarding Vermont's policies and procedures under this rule and 34 C.F.R. Part 99.

(d) Each participating agency shall maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

2365.2.13 Destruction of Information ( 34 C.F.R. § 300.624 )

(a) For purposes of an audit, when a participating agency has counted a child to justify receipt of IDEA funds, the LEA shall retain copies of the child's IEPs and special education eligibility evaluations, for a minimum of five years from the end of the school year in which the document was in effect.

(b) The participating agency shall inform parents when personally identifiable information collected, maintained, or used under the IDEA is no longer needed to provide educational services to the child. The information shall be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

2365.2.14 Children's Rights ( 34 C.F.R. § 300.625 )

The Vermont Agency of Education's policy shall be to protect the privacy rights of students with disabilities:

(a) When a student's educational records are transmitted, stored, accessed, or destroyed, a responsible participating agency shall conform to the standards issued by the Vermont Agency of Education.

(b) Under the regulations for FERPA at 34 C.F.R. § 99.5(a), the rights of parents regarding education records transfer to the students at age 18.

(c) If the rights accorded to parents under these rules are transferred to a student who reaches the age of majority, consistent with Rule 2365.1.12, the rights regarding educational records in Rule 2365 shall also be transferred to the student. However, the participating agency shall provide any notice required under the procedural safeguards provisions of the IDEA to the student and the parents.

2365.2.15 Disciplinary Information in Student Records

(a) A participating agency shall include in the records of a child receiving special education services a statement of any current or previous disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is included in, and transmitted with, the student records of children not receiving special education services.

(b) The statement shall include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.

(c) If the child transfers from one school to another, the transmission of any of the child's records shall include both the child's current IEP and any statement of current or previous disciplinary action that has been taken against the child as consistent with subsection (a) of this rule.

2366 (RESERVED)

2367 CHILDREN WITH DISABILITIES ENROLLED IN INDEPENDENT SCHOOLS AND IN-HOME STUDY ( 34 C.F.R. § 300.129 )

2367.1 Children with Disabilities Enrolled by Their Parents in Independent Schools and In-Home Study ( 34 C.F.R. § 300.130 ).

Independent school children means children who are enrolled by their parents in kindergarten through grade twelve in recognized or approved independent schools, as defined in 16 V.S.A § 166, including religious elementary and secondary schools. Home study children means children enrolled with the Vermont Agency of Education in a home study program pursuant to 16 V.S.A § 166b. For the purposes of Rule 2367, home study children shall be deemed the same as children enrolled by their parents in an independent school. This section does not apply to children who are either:

(a) Placed in independent schools by the LEA based on an IEP team's determination that the independent school, rather than the LEA's school, is the appropriate placement and least restrictive environment for the child, or

(b) Attend an independent school because the LEA does not maintain a public school.

2367.1.1 Child Find ( 34 C.F.R. § 300.131 )

(a) Each LEA shall locate, identify, and evaluate all independent school and home study children with disabilities who are enrolled by their parents in independent, including religious, elementary, and secondary schools and home study programs located in the LEA.

(b) Child Find design. The LEA's Child Find process shall be designed to ensure:

(1) The equitable participation of independent school and home study children; and

(2) An accurate count of those children.

(c) Activities. In carrying out the requirements of this section, the LEA shall undertake activities similar to the activities undertaken for the LEA's public school children.

(d) Cost. The cost of carrying out the Child Find requirements in this section, including individual evaluations, may not be considered in determining if the LEA has met its proportionate share expenditures obligation.

(e) Completion period. The Child Find process shall be completed in a time period comparable to that for other students attending public schools in the supervisory including completion of the initial evaluations within a 60-day time period, consistent with the evaluation process described in Rules 2362.2.1 through 2362.2.5.

2367.1.2 Child-Count ( 34 C.F.R. § 300.133(c) )

(a) Each LEA shall:

(1) Conduct the consultation required by Rule 2367.1.5.1; and

(2) Ensure that the count is conducted on December 1 of each year.

(b) The child count shall be used to determine the amount that the LEA shall spend on providing special education and related services to independent school and home study children with disabilities in the subsequent fiscal year.

(c) Supplement, not supplant. Local funds may supplement and in no case supplant the proportionate amount of IDEA-B flow through funds required to be expended for independent school and home study children who are eligible for special education.

2367.1.3 Proportionate Share of IDEA-B Funds ( 34 C.F.R. § 300.133(b) )

The child count shall be used to determine the amount of IDEA-B flow-through funds that the LEA shall spend on providing special education and related services to independent school and home study children with disabilities in the next fiscal year.

(a) Formula. Each LEA shall spend the following on providing special education and related services (including direct services) to independent school and home study children wit disabilities:

(1) For children aged three through 21, an amount that is the same proportion of the LEA's allocation for the next fiscal year of federal IDEA-B Basic flow-through funds as the number of independent school and home study children eligible for special education aged three through 21 who are enrolled by their parents in independent schools or home study programs located in the LEA is to the total number of children eligible for special education in its jurisdiction aged three through 21.

(2) For children aged three through five, an amount that is the same proportion of the LEA's allocation for the next fiscal year of federal IDEA-B Preschool flow-through funds as the number of independent school and home study children eligible for special education aged three through five who are enrolled by their parents in independent schools and home study programs located in the LEA is to the total number of children eligible for special education in its jurisdiction aged three through five.

(b) Calculating proportionate amount. In calculating the proportionate amount of federal flow-through IDEA-B funds to be provided for independent school and home study children with disabilities, the LEA, after timely and meaningful consultation with representatives of independent schools and home study programs, shall conduct a thorough and complete Child Find process to determine the number of independent and home study children with disabilities located in the LEA.

2367.1.4 No Right to FAPE for Children with Disabilities Placed by Their Parents at Independent Schools or in-Home Study ( 34 C.F.R. § 300.137(a) )

No parentally-placed child has an entitlement to a FAPE in an independent school or home study program.

(a) Where services are provided, they shall be provided at the discretion of the LEA in which the independent school or home study program is located.

(b) The LEA of the parent's residence shall offer to make a FAPE available in the event the child's parent seeks enrollment in public school. Additionally, the LEA of residence shall be prepared to develop an IEP for such eligible child if he or she enrolls in public school.

2367.1.5 Services Determined

2367.1.5.1 Consultation ( 34 C.F.R. § 300.134 )

To ensure timely and meaningful consultation, an LEA representative shall consult with independent school representatives and representatives of parents of independent school and home study children with disabilities during the design and development of special education and related services for the children regarding the following:

(a) Child Find. The Child Find process, including:

(1) How parentally-placed independent school children suspected of having a disability can participate equitably; and

(2) How parents, teachers, and independent school officials will be informed of the process.

(b) Proportionate share of funds. The determination of the proportionate share of federal funds available to serve independent school and home study children with disabilities under Rule 2367.1.3, including the determination of how the proportionate share of those funds was calculated.

(c) Consultation process. The consultation process among the LEA representative, independent school officials, and representatives of parents of independent school and home study children with disabilities, including how the process will operate throughout the school year to ensure that independent and home study children identified through the Child Find process as children eligible for special education, can meaningfully participate in special education and related services.

(d) Provision of special education and related services. How, where, and by whom special education and related services will be provided for independent school and home study children with disabilities, including a discussion of:

(1) The types of services, including direct services and alternate service delivery mechanisms;

(2) How special education and related services will be apportioned if funds are insufficient to serve all independent school and home study children; and

(3) How and when those decisions will be made.

(e) Written explanation by the LEA regarding services. How, if the LEA disagrees with the views of the independent school officials or parents of a home study child on the provision of services or the types of services (whether provided directly or through a contract) the LEA will provide to the independent school officials or home study parents a written explanation of the reasons why the LEA chose not to provide services directly or through a contract.

2367.1.5.2 Written Affirmation ( 34 C.F.R. § 300.135 )

(a) When timely and meaningful consultation, as required by Rule 2367.1.5.1, has occurred, the LEA representative shall obtain a written affirmation signed by the representatives of participating independent schools and home study programs.

(b) If the representatives do not provide the affirmation within a reasonable period of time, the LEA representative shall forward documentation of the consultation process to the Agency.

2367.1.5.3 Compliance ( 34 C.F.R. § 300.136 )

(a) General. An independent school official or home study parent has the right to submit an administrative complaint to the Agency that the LEA:

(1) Did not engage in consultation that was meaningful and timely; or

(2) Did not give due consideration to the views of the independent school official or home study parent.

(b) Procedure.

(1) If the independent school official or home study parent wishes to submit a complaint, the official shall provide to the AOE the basis of the noncompliance by the LEA with the applicable independent school provisions in these rules; and

(2) The LEA shall forward the appropriate documentation to the AOE.

(3) If the independent school official is dissatisfied with the decision of the AOE, the official may submit a complaint to the Secretary of the U.S. Office of Education by providing the information on noncompliance described in paragraph (b)(1) of this section; and

(4) The AOE shall forward the appropriate documentation to the Secretary.

2367.1.6 Services Plan and Record Keeping ( 34 C.F.R. § 300.132 )

(a) Consistent with Rule 2367.1.3 and 2367.1.4, a services plan shall be developed and implemented for each child with a disability who has been designated by the LEA in which the independent school or home study program is located to receive special education and related services.

(b) Record keeping. Each LEA shall maintain in its records, and provide to the Agency, the following information related to independent school and home study children:

(1) The number of children evaluated;

(2) The number of children determined to be children with disabilities; and

(3) The number of children served.

2367.1.7 Equitable Services Determined ( 34 C.F.R. § 300.137 )

(a) No independent school or home study child who is eligible for special education and related services has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.

(b) Decisions.

(1) Decisions about the services that will be provided to independent school and home study children who are eligible for special education and related services shall be made in accordance with subsection (c) below and Rule 2367.1.5.1.

(2) The LEA where the independent school or home study program is located shall make the final decisions with respect to the services to be provided to eligible parentally-placed independent school or home study children.

(c) Services plan for each child served under this section. If an eligible child is enrolled in an independent school or home study program by the child's parents and will receive special education or related services from an LEA, the LEA shall--

(1) Initiate and conduct meetings to develop, review, and revise a services plan for the child, in accordance with Rule 2367.1.7.1; and

(2) Ensure that a representative of the independent school or home study program attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the independent school or home study program, including individual or conference telephone calls.

2367.1.7.1 Equitable Services Provided ( 34 C.F.R. § 300.138 )

(a) General.

(1) The services provided to independent school and home study children who will be receiving services through a services plan shall be provided by personnel meeting the same standards as personnel providing services in the public schools.

(2) Independent school and home study children who are eligible for special education and related services and will be receiving services through a services plan may receive a different amount of services than children with disabilities in public schools.

(b) Services provided in accordance with a services plan.

(1) Each independent school or home study child who has been found eligible and who has been designated to receive services shall have a services plan that describes the specific special education and related services that the LEA will provide to the child in light of the services that the LEA has determined, through the process described in Rules 2367.1.5.1 and 2367.1.6, it will make available to independent school and home study children who are found eligible for services.

(2) The services plan shall, to the extent appropriate:

(i) Meet the requirements of an IEP with respect to the services provided; and

(ii) Be developed, reviewed, and revised consistent with the requirements for either plan.

2367.1.8 Location of Services; Transportation ( 34 C.F.R. § 300.139 )

(a) Services on independent school or home study premises. Services to independent school and home study children on a services plan may be provided on the premises of independent, including religious, schools or home study program, to the extent consistent with law.

(b) Transportation.

(1) General.

(i) If necessary for the child to benefit from or participate in the services provided under this part, an independent school or home study child with a disability shall be provided transportation--

(A) From the child's school or the child's home to a site other than the independent school; and

(B) From the service site to the independent school, or to the child's home, depending on the timing of the services.

(ii) LEAs are not required to provide transportation from the child's home to the independent school.

(2) Cost of transportation. The cost of the transportation described in subsection (b)(1)(i) may be included in calculating whether the LEA has met the minimum proportionate share requirement.

2367.1.9 Funds May Not Benefit an Independent School or Home Study Program ( 34 C.F.R. § 300.141 )

(a) An LEA may not use funds provided under Part B of the IDEA to finance the existing level of instruction in an independent school or home study program or to otherwise benefit the independent school or home study program.

(b) The LEA shall use funds provided under Part B of the IDEA to meet the special education and related services needs of independent school and home study children with disabilities, but not for--

(1) The needs of an independent school or home study program; or

(2) The general needs of the students enrolled in the independent school or home study program.

2367.1.10 Use of Public and Independent School Personnel to Provide Services ( 34 C.F.R. § 300.142 )

(a) Provision of equitable services. The provision of services shall be provided:

(1) By employees of an LEA; or

(2) Through contract by the LEA with an individual, association, agency, organization, or other entity.

(b) Special education and related services provided to independent school and home study children with disabilities, including materials and equipment, shall be secular, neutral, and non-ideological.

(c) Use of public school personnel. An LEA may use IDEA-B flow-through grant funds to make public school personnel available in other than public facilities:

(1) To the extent necessary to provide services under a services plan for independent school and home study children with disabilities; and

(2) If those services are not normally provided by the independent school.

(d) Use of independent school personnel. AN LEA may use IDEA-B flow-through grant funds to pay for the services of an employee of an independent school to provide services under a services plan if:

(1) The employee performs the services outside of his or her regular hours of duty; and

(2) The employee performs the services under public supervision and control.

2367.1.11 Property, Equipment, and Supplies ( 34 C.F.R. § 300.144 )

(a) An LEA shall control and administer the funds used to provide special education and related services under Rules 2367.1.7 and 2367.1.8, and hold title to and administer materials, equipment, and property purchased with those funds for the uses and purposes provided in the IDEA-B.

(b) The LEA may place equipment and supplies in an independent school or home study program for the period of time needed for the Part B program.

(c) The LEA shall ensure that the equipment and supplies placed in an independent school or home study program-

(1) Are used only for Part B purposes; and

(2) Can be removed from the independent school or home study program without remodeling the independent school or home study facility.

(d) The LEA shall remove equipment and supplies from an independent school or home study program if:

(1) The equipment and supplies are no longer needed for Part B purposes; or

(2) Removal is necessary to avoid unauthorized use of the equipment and supplies for other than Part B purposes. (e) No IDEA-B funds may be used for repairs, minor remodeling, or construction of independent school or home study facilities.

2367.1.12 Complaints ( 34 C.F.R. § 300.140 )

Independent school and home study children with disabilities have the right to file a complaint for due process under Rule 2365.1.6 only for the purpose of pursuing complaints that an LEA has failed to meet its responsibilities with regard to Child Find, including following procedures for evaluation and determination of eligibility. All other complaints may be pursued by way of the Agency of Education's administrative complaint procedure.

2367.2 School Districts without a Public School.

A school district that does not maintain a public school or has not designated, in accordance with applicable law, an approved independent school at the grade level needed by a resident student eligible for special education, shall provide the student a free appropriate public education. All special education evaluations, planning and due process procedures, as required by these rules and by federal law, shall be made available to students who are referred for a special education evaluation or who are eligible for special education and to their parents. The location for IEP services shall be determined in the following manner:

(a) The choice of a specific school(s) appropriate to fulfill the IEP, including the requirements to educate the student in the least restrictive environment, shall be determined by a student's IEP team after the IEP is developed. If the IEP team does not reach consensus about the location of services, the LEA representative shall determine the location of services. This shall be communicated to the parents within five working days of this determination.

(b) If the parents choose to have their child served, pursuant to his or her IEP, at a school other than that selected by the IEP team or by the LEA representative, and the IEP team agrees that the IEP can be adequately implemented at the school chosen by the parents, the following shall be applicable:

(1) Public School: If the parents select a public school, the LEA shall pay any special education tuition or excess costs allowed by law.

(2) Independent School:

(i) If the parents select an independent school approved for special education purposes that is generally attended by general education students that a non-special education student from the LEA could choose to attend, the LEA shall fund the actual costs associated with the parents' placement minus any costs that would accrue to the parents of a non-special education student placed at the same school.

(ii) If the parents select an independent school not generally attended by general education students, the LEA shall pay the actual educational costs associated with the parents' placement to the amount that would have been spent on the school chosen by the IEP team provided the school selected by the parents is approved for special education in the area of the child's disability.

2367.3 Placement of Children by Parents if FAPE is at Issue ( 34 C.F.R. § 300.148 ).

(a) LEAs are not required to pay for the cost of education, including special education and related services, of a child eligible for special education at an independent school or facility, if the LEA has offered to make a FAPE available to the child and the parents elected to place the child in an independent school or facility. However, the LEA shall include that child in the population whose needs are addressed consistent with Rules 2367.1.1 through 2367.1.11.

(b) Reimbursement for independent school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of an LEA, enroll the child in an independent elementary school, or secondary school without the consent of, or referral by the LEA, a court or a hearing officer may require the LEA to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the LEA had not made FAPE available to the child in a timely manner prior to that enrollment and that the independent placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the Agency and LEAs.

(c) Limitation on reimbursement. The cost of reimbursement described in subsection(b) may be reduced or denied:

(1) If:

(i) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the LEA to provide FAPE to their child, including stating their concerns and their intent to enroll their child in an independent school at public expense; or

(ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the LEA of the information described in subsection (c)(1)(i);

(2) If, prior to the parents' removal of the child from the public school, the LEA informed the parents, through the notice requirements described in Rule 2365.1.1 of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or

(3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(d) Exception. Notwithstanding the notice requirement in subsection(c)(1), the cost of reimbursement:

(1) Shall not be reduced or denied for failure to provide the notice if:

(i) The school prevented the parent from providing the notice;

(ii) The parents had not been informed about the requirements placed on them in paragraph (c)(1) of this rule before they took action to place their child; or

(iii) Compliance with subsection(c)(1) would likely result in physical harm to the child; and

(2) May, at the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if:

(i) The parent is not literate or cannot write in English; or

(ii) Compliance with subsection(c)(1) would likely result in serious emotional harm to the child.

2368 EDUCATIONAL SURROGATE PARENTS

(a) To ensure that the educational rights of a child or student are protected, an educational surrogate parent shall be assigned whenever the individual is eligible for special education or is being evaluated for special education eligibility, and one of the following applies:

(1) The parents of the student are not known or cannot be located after reasonable efforts;

(2) The student is a child in state custody through the Department of Children and Families or has a public guardian appointed by a Vermont court ( 18 V.S.A. §§ 9301-9316 ); or

(3) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. § 11434a(6) ) ( 34 C.F.R. § 300.519(a)(4).

(b) The Secretary of Education or a designee shall assign an individual to act as an educational surrogate parent. The educational surrogate parent may represent the child in all matters relating to:

(1) The identification, evaluation, and educational placements of the child; and

(2) The provision of FAPE to the child.

(c) The Educational Surrogate Parent Program shall make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after an LEA or other responsible agency determines that the child needs a surrogate.

(d) Before making the appointment, the Secretary or designee shall assure that the person appointed as an educational surrogate parent:

(1) Has no personal or professional interest that conflicts with the interests of the student to whom the surrogate is assigned;

(2) Has knowledge and skills that ensure adequate representation of the child; and

(3) Is not an employee of the Agency of Education, the child's LEA, or any other agency that is involved in the education or care of the child.

(e) In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogates without regard to paragraph (d)(3).

(f) A foster parent or developmental home provider shall not automatically have the rights of a parent, but may be appointed by the Secretary of Education or designee to serve as an educational surrogate parent for the child, pursuant to subsections (a), (b), and (d) above.

(g) Nothing in this section shall be interpreted to diminish, or otherwise alter, any authority or responsibility of a state agency regarding general education decisions for a child in state custody pursuant to Chapters 49 and 55 of Title 33 or a vulnerable adult in state custody pursuant to Chapter 215 of Title 18.

2369 MONITORING AND CORRECTIVE ACTION

(a) The Secretary shall periodically monitor all LEAs for compliance with Vermont statutes and rules, and federal requirements under the IDEA. The monitoring process shall include, but not be limited to, review of the State Performance Plan indicators and provision of FAPE for all eligible students.

(b) The monitoring procedures may include, but are not limited to:

(1) A self-assessment conducted by the LEA being monitored;

(2) Review of data, reports, and student records;

(3) On-site visits;

(4) Comparison of a sample of individualized education programs with the programs and services provided; and

(5) Development of an improvement plan by the LEA being monitored to address areas of noncompliance identified during the self-assessment.

(c) After the monitoring process is completed, a report shall be written and sent to the LEA. If the report indicates noncompliance, the LEA shall develop an improvement plan that includes areas of need identified through self-assessment as well as noncompliance cited by the Secretary, and submit it to the Secretary for approval. The Secretary shall review the improvement plan and notify the LEA if it is acceptable.

(d) An improvement plan shall include, but not be limited to, the following:

(1) Objectives and strategies for correcting each noncompliance item cited, including resources needed; and

(2) The dates by which noncompliance will be corrected.

(e) Corrective actions identified in the improvement plan shall be completed as soon as possible, but in no case later than one year after the Secretary's identification of noncompliance.

(f) When an improvement plan is not submitted, found unacceptable, or not implemented, the Secretary shall notify the LEA of additional intended actions. These actions may include, but are not limited to:

(1) Further monitoring;

(2) Mandatory technical assistance or professional development;

(3) Withholding or directing of funding.

(g) An LEA shall provide documentation necessary for the Secretary to fulfill the Agency's reporting obligations pursuant to federal regulations. Documentation shall be provided in accordance with the timeline and format specified by the Secretary.

(h) If documentation is not submitted consistent with subsection (g) of this Rule, the Secretary shall notify the LEA of additional intended actions.

Effective Date:

These rules will take effect on July 1, 2022.

Notes

22-006 Code Vt. R. 22-000-006-X

EFFECTIVE DATE:
Original effective date not provided.
AMENDED:
August 5, 1994 Secretary of State Rule Log #94-59; August 20, 1994 Secretary of State Rule Log #94-62; January 25, 1996 Secretary of State Rule Log #96-03; May 9, 1997 Secretary of State Rule Log #97-14; August 16, 2001 Secretary of State Rule Log #01-44; January 22, 2002 Secretary of State Rule Log #02-03; August 29, 2003 Secretary of State Rule Log #03-29; August 24, 2006 Secretary of State Rule Log #06-023; September 17, 2007 Secretary of State Rule Log #07-033; June 10, 2010 Secretary of State Rule Log #10-011; June 25, 2013 Secretary of State Rule Log #13-013; October 17, 2018 Secretary of State Rule Log #18-034; July 1, 2022 Secretary of State Rule Log #21-007

STATUTORY AUTHORITY:

16 V.S.A. Chapter 3 § 164; Chapter 101