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