Table of Contents Title 28 EDUCATION Part XLIII. Bulletin 1706―Regulations for Implementation of the Children with Exceptionalities Act Subpart 1. Regulations for Students with Disabilities Chapter 1. State Eligibility ......................................................................................................................... 1 Subchapter A. FAPE Requirements ............................................................................................................. 1 §101. Free Appropriate Public Education (FAPE) ................................................................................. 1 §102. Limitation-Exception to FAPE for Certain Ages ......................................................................... 1 Subchapter B. Other FAPE Requirements ................................................................................................... 2 §103. FAPE„Methods and Payments ................................................................................................... 2 §104. Residential Placement .................................................................................................................. 2 §105. Assistive Technology ................................................................................................................... 2 §106. Extended School Year Services .................................................................................................... 2 §107. Nonacademic Services .................................................................................................................. 2 §108. Physical Education ....................................................................................................................... 3 §109. Full Educational Opportunity Goal (FEOG) ................................................................................ 3 §110. Program Options ........................................................................................................................... 3 §111. Child Find ..................................................................................................................................... 3 §112. Individualized Education Programs (IEP) .................................................................................... 4 §113. Routine Checking of Hearing Aids and External Components of Surgically Implanted Medical Devices ........................................................................................................................... 4 Subchapter C. Least Restrictive Environment (LRE) .................................................................................. 4 §114. LRE Requirements ....................................................................................................................... 4 §115. Continuum of Alternative Placements .......................................................................................... 4 §116. Placements .................................................................................................................................... 4 §117. Nonacademic Settings .................................................................................................................. 5 §118. Students in Public or Private Institutions ..................................................................................... 5 §119. Technical Assistance and Training Activities .............................................................................. 5 §120. Monitoring Activities ................................................................................................................... 5 Subchapter D. Additional Eligibility Requirements .................................................................................... 5 §121. Procedural Safeguards .................................................................................................................. 5 §122. Evaluation ..................................................................................................................................... 5 §123. Confidentiality of Personally Identifiable Information ................................................................ 5 §124. Transition of Children from the Part C Program to Preschool Programs ..................................... 6 Subchapter E. Students in Private Schools .................................................................................................. 6 §129. State Responsibility regarding Students in Private Schools ......................................................... 6 Subchapter F. Students with Disabilities Enrolled by their Parents in Private Schools .............................. 6 §130. Definition of Parentally-Placed Private School Students with Disabilities .................................. 6 §131. Child Find for Parentally-Placed Private School Students with Disabilities ............................... 6 §132. Provision of Services for Parentally-Placed Private School Students with Disabilities-Basic Requirements ................................................................................................................................ 6 §133. Expenditures ................................................................................................................................. 7 §134. Consultation .................................................................................................................................. 9 §135. Written Affirmation .................................................................................................................... 10 §136. Compliance ................................................................................................................................. 10 §137. Equitable Services Determined .................................................................................................. 10 §138. Equitable Services Provided ....................................................................................................... 11 §139. Location of Services and Transportation .................................................................................... 11 §140. Requests for Due Process Hearings and State Complaints ........................................................ 11 §141. Requirement that Funds Not Benefit a Private School ............................................................... 12 §142. Use of Personnel ......................................................................................................................... 12 §143. Separate Class Prohibited ........................................................................................................... 12 §144. Property, Equipment, and Supplies ............................................................................................ 12 Subchapter G. Students with Disabilities in Private Schools Placed or Referred by Public Agencies ..... 12 §145. Applicability of §§146 through 147 ........................................................................................... 12 §146. Responsibility of the LDE .......................................................................................................... 12 §147. Implementation by the LDE ....................................................................................................... 13 Subchapter H. Students with Disabilities Enrolled by their Parents in Private Schools when FAPE is an Issue ............................................................................................................................... 13 §148. Placement of Students by Parents when FAPE is at Issue ......................................................... 13 Subchapter I. LDE Responsibilities for General Supervision and Implementation of Procedural Safeguards ........................................................................................................................... 14 §149. LDE Responsibility for General Supervision ............................................................................. 14 §150. LDE Implementation of Procedural Safeguards ......................................................................... 14 Subchapter J. State Complaint Procedures ................................................................................................ 14 §151. Adoption of State Complaint Procedures and Early Resolution Program ................................. 14 §152. Formal Written Complaints Filing and Content Requirements .................................................. 15 §153. Formal Written Complaint Procedures ....................................................................................... 15 Subchapter K. Methods of Ensuring Services ........................................................................................... 17 §154. Methods of Ensuring Services .................................................................................................... 17 Subchapter L. Additional Eligibility Requirements .................................................................................. 19 §155. Hearings Relating to LEA Eligibility ......................................................................................... 19 §156. Personnel Qualifications ............................................................................................................. 19 §157. Performance Goals and Indicators .............................................................................................. 19 §160. Participation in Assessments ...................................................................................................... 19 §162. Supplementation of State, Local, and other Federal Funds ........................................................ 20 §165. Public Participation .................................................................................................................... 20 Subchapter M. State Advisory Panel ......................................................................................................... 21 §167. State Advisory Panel (State Special Education Advisory Panel) ............................................... 21 §168. Membership ................................................................................................................................ 21 §169. Duties .......................................................................................................................................... 21 Subchapter N. Other Provisions Required for State Eligibility ................................................................. 21 §170. Suspension and Expulsion Rates ................................................................................................ 21 §171. Annual Description of Use of Part B Funds ............................................................................... 22 §172. Access to Instructional Materials ............................................................................................... 22 §173. Overidentification and Disproportionality ................................................................................. 22 §174. Prohibition on Mandatory Medication ....................................................................................... 22 §175. The LDE as Provider of FAPE or Direct Services ..................................................................... 22 §190. By-Pass for Students in Private Schools .................................................................................... 22 §199. State Administration ................................................................................................................... 23 Chapter 2. Local Educational Agency Eligibility .................................................................................... 23 §201. Condition of Assistance .............................................................................................................. 23 §202. Consistency with State Policies .................................................................................................. 23 §203. Use of Amounts .......................................................................................................................... 23 §204. Maintenance of Effort ................................................................................................................. 23 §205. Exception to Maintenance of Effort ........................................................................................... 24 §206. Adjustment to Local Fiscal Efforts in Certain Fiscal Years ....................................................... 24 §207. School-wide Programs under Title I of the ESEA ..................................................................... 24 §208. Personnel Development .............................................................................................................. 25 §209. Permissive Use of Funds ............................................................................................................ 25 §210. Treatment of Charter Schools and their Students ....................................................................... 25 §211. Purchase of Instructional Materials ............................................................................................ 26 §212. Information for SEA ................................................................................................................... 26 §213. Public Information ...................................................................................................................... 26 §214. Records Regarding Migratory Students with Disabilities .......................................................... 26 §220. Exception for Prior Local Plans ................................................................................................. 26 §221. Notification of LEA or State Agency in Case of Ineligibility .................................................... 26 §222. LEA and State Agency Compliance ........................................................................................... 27 §223. Joint Establishment of Eligibility ............................................................................................... 27 §224. Requirements for Establishing Eligibility .................................................................................. 27 §226. Early Intervening Services ......................................................................................................... 27 §227. Direct Services by the LDE ........................................................................................................ 28 §228. State Agency Eligibility ............................................................................................................. 28 §229. Disciplinary Information ............................................................................................................ 28 §230. LEA Jurisdiction ......................................................................................................................... 28 Chapter 3. Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements .......................................................................................................... 30 Subchapter A. Parental Consent ................................................................................................................ 30 §301. Parental Consent ......................................................................................................................... 30 Subchapter B. Evaluations and Reevaluations .......................................................................................... 32 §302. Initial Evaluations ....................................................................................................................... 32 §303. Screening for Instructional Purposes is not Evaluation .............................................................. 32 §304. Reevaluations ............................................................................................................................. 32 §305. Evaluation Procedures ................................................................................................................ 32 §306. Additional Requirements for Evaluations and Reevaluations .................................................... 33 §307. Determination of Eligibility ....................................................................................................... 34 Subchapter C. Additional Procedures for Identifying Students with Specific Learning Disabilities ........ 34 §308. Specific Learning Disabilities .................................................................................................... 34 Subchapter D. Individualized Education Programs ................................................................................... 35 §320. Definition of Individualized Education Program ....................................................................... 35 §321. IEP Team .................................................................................................................................... 36 §322. Parent Participation .................................................................................................................... 36 §323. When IEPs Shall Be in Effect .................................................................................................... 37 Subchapter E. Development of IEP ........................................................................................................... 38 §324. Development, Review, and Revision of IEP .............................................................................. 38 §325. Private School Placements by Public Agencies ......................................................................... 39 §327. Educational Placements .............................................................................................................. 39 §328. Alternative Means of Meeting Participation .............................................................................. 39 Chapter 4. Special School District (SSD) and BESE Special Schools (BSS) .......................................... 40 Subchapter A. Special School District ....................................................................................................... 40 §401. Special School District (SSD) .................................................................................................... 40 §402. Provision of Services .................................................................................................................. 40 §403. Facility ........................................................................................................................................ 40 §404. Purpose and Jurisdiction ............................................................................................................. 40 §405. Transition/Day Programs ............................................................................................................ 40 §406. Emergency and Respite Care Program ....................................................................................... 41 §408. Financing .................................................................................................................................... 41 §410. Students with Disabilities in Adult Prisons ................................................................................ 41 Subchapter B. BESE Special Schools ........................................................................................................ 41 §450. BESE Special Schools (BSS) ..................................................................................................... 41 §460. Purpose and Jurisdiction ............................................................................................................. 41 §461. Provision of Services .................................................................................................................. 41 §462. LEA Request for Enrollment in a BSS ....................................................................................... 42 §463. Parent Request for Enrollment to LSD or LSVI ........................................................................ 42 §464. Admission and Release ............................................................................................................... 42 §466. Transportation ............................................................................................................................. 43 Chapter 5. Procedural Safeguards ............................................................................................................ 43 Subchapter A. Due Process Procedures for Parents and Students ............................................................. 43 §501. Responsibility of State and Other Public Agencies .................................................................... 43 §502. Opportunity to Examine Records and Parent Participation in Meetings .................................... 43 §503. Independent Educational Evaluation (IEE) ................................................................................ 43 §504. Prior Notice by the Public Agency; Content of Notice .............................................................. 44 §505. Procedural Safeguards Notice .................................................................................................... 45 §506. Mediation .................................................................................................................................... 45 §507. Filing a Request for Impartial Due Process Hearing .................................................................. 46 §508. Due Process Hearing Request .................................................................................................... 46 §509. Model Forms .............................................................................................................................. 47 §510. Resolution Process ...................................................................................................................... 48 §511. Impartial Due Process Hearing and Hearing Officer Appointments .......................................... 48 §512. Hearing Rights ............................................................................................................................ 50 §513. Hearing Decisions ...................................................................................................................... 50 §514. Finality of Decision; Appeal; and Compliance with Hearing Decisions ................................... 50 §515. Timelines and Convenience of Hearings and Reviews .............................................................. 51 §516. Civil Action ................................................................................................................................ 51 §517. Attorneys Fees/Costs ................................................................................................................. 51 §518. Student Status During Proceedings ............................................................................................ 52 §519. Surrogate Parents ........................................................................................................................ 52 §520. Transfer of Parental Rights at the Age of Majority .................................................................... 53 Subchapter B. Discipline Procedures for Students with Disabilities ......................................................... 53 §530. Authority of School Personnel ................................................................................................... 53 §531. Determination of Setting ............................................................................................................ 55 §532. Appeal ......................................................................................................................................... 55 §533. Placement during Appeal ........................................................................................................... 56 §534. Protections for Student not Determined Eligible for Special Education and Related Services . 56 §535. Referral to and Action by Law Enforcement and Judicial Authorities ...................................... 56 §536. Change of Placement because of Disciplinary Removals .......................................................... 57 §537. State Enforcement Mechanisms ................................................................................................. 57 §540. Definitions .................................................................................................................................. 57 §541. Use of Seclusion ......................................................................................................................... 57 §542. Physical Restraint ....................................................................................................................... 58 Subchapter C. Seclusion and Physical Restraint ....................................................................................... 58 §543. Restrictions on the Use of Seclusion or Physical Restraint ........................................................ 58 Chapter 6. Monitoring, Enforcement, Confidentiality, and Program Information .................................. 59 Subchapter A. Monitoring, Technical Assistance, and Enforcement ........................................................ 59 §601. State Monitoring and Enforcement ............................................................................................ 59 §602. State Performance Plans and Data Collection ............................................................................ 60 §603. State Use of Targets and Reporting ............................................................................................ 60 §604. LDEs Review, Determination, and Enforcement regarding LEA Performance ....................... 60 §605. State Enforcement ...................................................................................................................... 61 §606. Withholding Funds ..................................................................................................................... 61 §607. Public Attention .......................................................................................................................... 62 §608. Secretarys Review, Determination, and Enforcement regarding State Performance ................ 62 Subchapter B. Confidentiality of Information ........................................................................................... 62 §611. Definitions as used in §§611-625 ............................................................................................... 62 §612. Notice to Parents ......................................................................................................................... 62 §613. Access Rights ............................................................................................................................. 62 §614. Record of Access ........................................................................................................................ 63 §615. Records on More than one Student ............................................................................................ 63 §616. List of Types and Locations of Information ............................................................................... 63 §617. Fees ............................................................................................................................................ 63 §618. Amendment of Records at Parents Request .............................................................................. 63 §619. Opportunity for a Hearing .......................................................................................................... 63 §620. Result of Hearing ........................................................................................................................ 63 §621. Hearing Procedures .................................................................................................................... 63 §622. Consent ....................................................................................................................................... 64 §623. Safeguards .................................................................................................................................. 64 §624. Destruction of Information ......................................................................................................... 64 §625. Students Rights .......................................................................................................................... 64 §626. Enforcement ............................................................................................................................... 64 §646. Disproportionality ....................................................................................................................... 64 Chapter 7. Authorization, Allotment, Use of Funds, and Authorization of Appropriations .................... 65 Subchapter A. Allotments, Grants, and Use of Funds ............................................................................... 65 §701. Grants to the State ...................................................................................................................... 65 §704. State-level Activities .................................................................................................................. 65 §705. Subgrants to LEAs ...................................................................................................................... 66 §717. Definitions Applicable to Allotments, Grants, and Use of Funds .............................................. 67 §718. Acquisition of Equipment and Construction or Alteration of Facilities ..................................... 67 Chapter 8. Preschool Grants for Students with Disabilities and the Responsibilities of DHH and the LDE ......................................................................................................................................... 67 §801. In General ................................................................................................................................... 67 §802. State Administration ................................................................................................................... 67 §803. Subgrants to LEAs ...................................................................................................................... 68 §819. DHH and the LDEs Responsibilities under IDEA and the Louisiana Education of Children with Exceptionalities Act ........................................................................................................... 68 §820. Definitions .................................................................................................................................. 68 §821. Responsibility for Services ......................................................................................................... 69 §822. Obligations of DHH ................................................................................................................... 70 §823. General Provisions Governing DHH and LDEs Responsibilities ............................................. 71 Chapter 9. General .................................................................................................................................... 71 Subchapter A. Purposes and Applicability ................................................................................................ 71 §901. Purposes ...................................................................................................................................... 71 §902. Applicability ............................................................................................................................... 71 Subchapter B. Definitions used in these Regulations ................................................................................ 72 §903. Definitions/Terms ....................................................................................................................... 72 §904. Abbreviations/Acronyms used in these Regulations .................................................................. 72 §905. Definitions .................................................................................................................................. 72 Chapter 10. State Program Rules for Special Education ........................................................................ 83 §1001. Pupil/Teacher, Pupil/Speech/Language Pathologist, and Pupil Appraisal Ratios for Public Education .................................................................................................................................... 83 Subpart 2. Regulations for Gifted/Talented Students Chapter 11. State Eligibility .................................................................................................................... 85 §1101. Free Appropriate Public Education ............................................................................................ 85 §1102. Issuance of Regulations .............................................................................................................. 85 §1103. Compliance with Federal Rules .................................................................................................. 85 §1105. Program Options ......................................................................................................................... 85 §1107. Child Find Activities .................................................................................................................. 85 §1117. Facility Comparability ................................................................................................................ 86 §1118. General Responsibility ............................................................................................................... 86 §1129. Gifted and Talented Students Enrolled by their Parents in Private Schools .............................. 86 §1130. General LDE Responsibilities and Authorities .......................................................................... 86 §1132. Personnel Qualifications ............................................................................................................. 86 §1133. Improvement Strategies .............................................................................................................. 87 §1149. General Supervision ................................................................................................................... 87 §1151. Adoption of State Complaint Procedures and Early Resolution Program ................................. 87 §1152. Formal Written Complaints Filing and Content Requirements .................................................. 88 §1153. Formal Written Complaint Procedures ....................................................................................... 89 §1156. Adequate Supply of Qualified Personnel ................................................................................... 90 §1167. Appointment of a Gifted/ Talented Program Contact Person .................................................... 90 §1173. Nondiscrimination ...................................................................................................................... 90 §1174. Disproportionality ...................................................................................................................... 90 Chapter 12 Local Educational Agency Eligibility ..................................................................................... 91 §1230. LEA Jurisdiction ......................................................................................................................... 91 Chapter 13 Evaluation, Eligibility, Determinations, Individual IEPs and Educational Placements ......... 91 §1301. Parental Consent ......................................................................................................................... 91 §1303. Nonbias of Testing and Evaluation Materials ............................................................................ 93 §1305. Evaluation and Re-evaluation Procedures .................................................................................. 93 §1320. Definition of Individualized Education Program ....................................................................... 93 §1321. IEP Team Participants ................................................................................................................ 93 §1322. Parent Participation .................................................................................................................... 94 §1324. Gifted and Talented IEP Content and Format ............................................................................ 94 §1325. IEP Accountability ..................................................................................................................... 95 §1326. Students in an Educational Program Operated by the LEA ....................................................... 95 §1327. Gifted/Talented Students Transferring from one LEA to another LEA within Louisiana ......... 95 §1328. Students Out of School and/or Gifted and Talented Students Residing in the State .................. 95 Chapter 15 Procedural Safeguards ............................................................................................................ 95 §1501. Discipline Procedures for Gifted and Talented Students ........................................................... 95 §1502. Opportunity to Examine Records and Parental Participation in Meetings ................................. 96 §1503. Prior Notice and Procedural Safeguard Notice .......................................................................... 96 §1504. Mediation .................................................................................................................................... 96 §1507. Filing a Request for Impartial Due Process Hearing .................................................................. 97 §1508. Due Process Hearing Request .................................................................................................... 97 §1509. Model Forms .............................................................................................................................. 98 §1510. Resolution Process ...................................................................................................................... 98 §1511. Impartial Due Process Hearing and Hearing Officer Appointments .......................................... 99 §1512. Hearing Rights .......................................................................................................................... 100 §1513. Hearing Decisions .................................................................................................................... 100 §1515. Timelines and Convenience of Hearings and Reviews ............................................................ 101 §1516. Civil Action .............................................................................................................................. 101 §1517. Costs ......................................................................................................................................... 101 §1518. Student Status During Proceedings .......................................................................................... 101 §1519. Surrogate Parents ...................................................................................................................... 101 §1520. Transfer of Parental Rights at the Age of Majority .................................................................. 102 Chapter 16. Monitoring, Enforcement, Confidentiality, and Program Information ............................. 102 §1602. Monitoring, Complaint Management and Investigation .......................................................... 102 §1603. Review of Enforcement Recommendations ............................................................................. 103 §1604. Confidentiality of Information ................................................................................................. 103 Chapter 17. Allotment of Funds ........................................................................................................... 103 §1701. Administration of Funds ........................................................................................................... 103 §1702. Preparation of Annual Budget .................................................................................................. 103 §1703. Procedure for Determination of Eligibility for State or Federal Funds .................................... 103 Chapter 19. General .............................................................................................................................. 103 §1901. Terms ........................................................................................................................................ 103 §1902. Abbreviations/Acronyms Used in These Regulations .............................................................. 103 §1903. Abbreviated Terms ................................................................................................................... 103 §1904. Definitions ................................................................................................................................ 104 Chapter 20. State Program Rules for Special Education ...................................................................... 106 §2001. Pupil/Teacher, and Pupil Appraisal Ratios for Public Education ............................................. 106 Louisiana Administrative Code September 2012 1 Title 28 EDUCATION Part XLIII. Bulletin 1706―Regulations for Implementation of the Children with Exceptionalities Act Subpart 1. Regulations for Students with Disabilities Chapter 1. State Eligibility Subchapter A. FAPE Requirements §101. Free Appropriate Public Education (FAPE) A. General. A free appropriate public education shall be available to all students residing in the state between the ages of 3 and 21, inclusive, including students with disabilities who have been suspended or expelled from school as provided for in §530.D. 1. The Louisiana State Board of Elementary and Secondary Education (the state board) shall be responsible for the assurance of a free appropriate public education to all students residing in the state; and shall be directly responsible for the provision of a free appropriate public education to students who are within the jurisdiction of the Special School District, the Recovery School District, or in a BESE Special School (Louisiana School for Visually Impaired, Louisiana School for the Deaf, or Louisiana Special Education Center). B. FAPE for Children Beginning at Age Three 1. The state board shall ensure that: a. the obligation to make FAPE available to each eligible student residing in the state begins no later than the child's third birthday; and b. an IEP is in effect for the student by that date, in accordance with §323.B. 2. if a student's third birthday occurs during the summer, the student's IEP Team shall determine the date when services under the IEP will begin. C. Students Advancing from Grade to Grade 1. The state shall ensure that FAPE is available to any individual student with a disability who needs special education and related services, even though the student has not failed or been retained in a course or grade, and is advancing from grade to grade. 2. The determination that a student described in Subsection A of this Section is eligible under these regulations shall be made on an individual basis by the group responsible within the students LEA for making eligibility determinations. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2036 (October 2008). §102. Limitation-Exception to FAPE for Certain Ages A. General. The obligation to make FAPE available to all students with disabilities does not apply with respect to the following. 1. Students aged 18 through 21 who, in the last educational placement prior to their incarceration in an adult correctional facility: a. were not actually identified as being a student with a disability as defined in §905; and b. did not have an IEP under Part B of the IDEA: i. the exception in Subparagraph A.1.a of this Section does not apply to students with disabilities, aged 18-21, who: (a). had been identified as a student with a disability as defined in §905 and had received services in accordance with an IEP, but who left school prior to their incarceration; or (b). did not have an IEP in their last educational setting, but who had actually been identified as a student with a disability as defined in §905; 2.a. students with disabilities who have graduated from high school with a regular high school diploma: b. the exception in Paragraph A.2 of this Section does not apply to students who have graduated from high school but have not been awarded a regular high school diploma; c. graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with §504; d. as used in Subparagraphs A.2.a through A.2.c of this Section, the term regular high school diploma does not include an alternative degree that is not fully aligned with the state's academic standards, such as a certificate or a general educational development credential (GED). B. Documents Relating To Exceptions. The LDE shall assure that the information it has provided to the secretary regarding the exceptions in Subsection A of this Section, as required by §701 (for purposes of making grants to states under these regulations), is current and accurate. EDUCATION Louisiana Administrative Code September 2012 2 AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2036 (October 2008). Subchapter B. Other FAPE Requirements §103. FAPE„Methods and Payments A. The state of Louisiana may use whatever state, local, federal, and private sources of support are available in the state to meet the requirements of these regulations. If it is necessary to place a student with a disability in a residential facility, for example, the state could use joint agreements between the agencies involved for sharing the cost of that placement. B. Nothing in these regulations relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a student with a disability. C. Consistent with §323.C, the LDE ensures that there is no delay in implementing a student's IEP, including any case in which the payment source for providing or paying for special education and related services to the student is being determined. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2037 (October 2008). §104. Residential Placement A. If placement in a public or private residential program is necessary to provide special education and related services to a student with a disability, the program, including non-medical care and room and board, shall be at no cost to the parents of the student. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2037 (October 2008). §105. Assistive Technology A. Each public agency shall ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in §905, are made available to a student with a disability if required as a part of the student's: 1. special education under §905; 2. related services under §905; or 3. supplementary aids under §§905 and 114.A.2.b. 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 order to receive FAPE. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2037 (October 2008). §106. Extended School Year Services A. General 1. Each public agency shall ensure that extended school year (ESY) services are available as necessary to provide FAPE, consistent with Paragraph A.2 of this Section; 2. extended school year services shall be provided only if a student's IEP Team determines, on an individual basis, in accordance with §§320 through 324, that the services are necessary for the provision of FAPE to the student; 3. in implementing the requirements of this Section, a public agency may not: a. limit ESY services to particular categories of disability; or b. unilaterally limit the type, amount, or duration of those services; and 4. the IEP Team shall make its determination in accordance with the LDE's extended school year services eligibility criteria found in Bulletin 1530„Louisiana's IEP Handbook. B. Definition. As used in this Section, the term extended school year (ESY) service„special education and related services that: 1. are provided to a student with a disability: a. beyond the normal school year of the public agency; b. in accordance with the student's IEP; c. at no cost to the parents of the student; and 2. meet the standards of the LDE. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2037 (October 2008). §107. Nonacademic Services A. The LDE shall ensure the following. 1. Each public agency shall take steps, including the provision of supplementary aids and services determined appropriate and necessary by the student's IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford students with disabilities an equal opportunity for participation in those services and activities. B. Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both Title 28, Part XLIII Louisiana Administrative Code September 2012 3 employment by the public agency and assistance in making outside employment available. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2037 (October 2008). §108. Physical Education A. The LDE shall ensure that public agencies in the state make available. 1. General. Physical education services, specially designed if necessary, to every student with a disability receiving FAPE, unless the public agency enrolls students without disabilities and does not provide physical education to students without disabilities in the same grades. B. Regular Physical Education. Each student with a disability shall be afforded the opportunity to participate in the regular physical education program available to non-disabled students unless: 1. the student is enrolled full time in a separate facility; or 2. the student needs specially designed physical education, as prescribed in the student's IEP. C. Special Physical Education. If specially designed physical education is prescribed in the student's IEP, the public agency responsible for the education of that student 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 public agency responsible for the education of a student with a disability who is enrolled in a separate facility shall ensure that the student receives appropriate physical education services in compliance with this Section. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2038 (October 2008). §109. Full Educational Opportunity Goal (FEOG) A. The LDE shall have in effect policies and procedures to demonstrate that the LDE has established a goal of providing a full educational opportunity to all students with disabilities, aged birth through 21, and a detailed timetable for accomplishing that goal. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2038 (October 2008). §110. Program Options A. The LDE shall ensure that each public agency takes steps to ensure that the students with disabilities residing in the area served by the public agency have available to them the variety of educational programs and services available to non-disabled students, including but not limited to art, music, industrial arts, consumer and homemaking education, and vocational education. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2038 (October 2008). §111. Child Find A. General 1. The LDE shall ensure that: a. all students with disabilities residing in the state, including students with disabilities who are homeless children or who are wards of the state, and students with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and b. a practical method is developed and implemented to determine which students are currently receiving needed special education and related services. 2. Each public agency, in accordance with the requirements of these regulations, shall document that on-going identification activities are conducted to identify, locate, and evaluate each student who is suspected of having a disability, in need of special education and related services, and meets the criteria listed below: a. is enrolled in an educational program operated by or under the jurisdiction of a public agency; b. is enrolled in a private school program within the geographical jurisdiction of a public agency; c. is enrolled in a public or private preschool or day care program; or d. is not enrolled in a school, except for students who have graduated with a regular high school diploma. B. Use of Term Developmental Delay. The following provisions apply with respect to implementing the Child Find requirements of this Section: 1. the LDE has defined the term developmental delay in the definition of student with a disability in §905 of this Part and determined that it applies to students aged three through eight. 2. an LEA is not required to adopt and use the term developmental delay for any students within its jurisdiction; 3. if an LEA uses the term developmental delay for students described in Paragraph B of the definition of student with a disability as defined in §905, the LEA shall conform to both the definition and to the age range therein. C. Other Students in Child Find. Child Find also shall include: 1. students who are suspected of being students with a disability under §905 and in need of special education, even though they are advancing from grade to grade; and EDUCATION Louisiana Administrative Code September 2012 4 2. highly mobile students, including migrant students. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2038 (October 2008). §112. Individualized Education Programs (IEP) A. The LDE shall ensure that an IEP, that meets the requirements of Section 636(d) of the IDEA, is developed, reviewed, and revised for each student with a disability in accordance with §§320 through 324, except as provided in §301B.3.b. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2038 (October 2008). §113. Routine Checking of Hearing Aids and External Components of Surgically Implanted Medical Devices A. Hearing Aids. Each public agency shall ensure that hearing aids worn in school by students with hearing impairments, including deafness, are functioning properly. B. External components of surgically implanted medical devices. 1. Subject to Paragraph B.2 of this Section, each public agency shall ensure that the external components of surgically implanted medical devices are functioning properly. 2. For a student with a surgically implanted medical device who is receiving special education and related services under these regulations, a public agency is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device). AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2039 (October 2008). Subchapter C. Least Restrictive Environment (LRE) §114. LRE Requirements A. General 1. Except as provided in §324.D.2 (regarding students with disabilities in adult prisons), the LDE adopts the policies and procedures in this Section and in §§115 through 120 to ensure that public agencies in the state meet the federal LRE requirements of this Section and §§115 through 120. 2. Each public agency shall ensure that: a. to the maximum extent appropriate, students with disabilities, including students in public or private institutions or other care facilities, are educated with students who are nondisabled; and b. special classes, separate schooling, or other removal of students with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. B. Additional Requirement„State Funding Mechanism 1. General a. The state funding mechanism shall not result in placements that violate the requirements of Subsection A of this Section; and b. the state shall not use a funding mechanism by which it distributes funds on the basis of the type of setting in which a student is served that will result in the failure to provide a student with a disability FAPE according to the unique needs of the student, as described in the student's IEP. 2. Assurance. The state has policies and procedures to ensure compliance with Paragraph B.1 of this Section. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2039 (October 2008). §115. Continuum of Alternative Placements A. Each public agency shall ensure that a continuum of alternative educational placements is available to meet the need of students with disabilities for special education and related services. B The continuum required in Subsection A of this Section shall: 1. include the alternative placements listed in the definition of special education under §905 (instruction in regular classes, special classes, special schools, home instruction, instruction in hospitals, and institution); and 2. make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2039 (October 2008). §116. Placements A. In determining the educational placement of a student with a disability, including a preschool student with a disability, each public agency shall ensure that: 1. the placement decision: a. is made by a group of persons including the parents and other persons knowledgeable about the student, the meaning of the evaluation data, and the placement options; and b. is made in conformity with the LRE provisions of this Section, including §§114 through 118; 2. the student's placement: Title 28, Part XLIII Louisiana Administrative Code September 2012 5 a. is determined at least annually; b. is based on the student's IEP; and c. is as close as possible to the student's home; 3. unless the IEP of a student with a disability requires some other arrangement, the student is educated in the school that he or she would attend if non-disabled; 4. in selecting the LRE, consideration is given to any potential harmful effect on the student or on the quality of services that he or she needs; and 5. a student with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum; 6. for students with a hearing or visual impairment, parents shall be informed of all placement options, including the Louisiana School for the Deaf and the Louisiana School for the Visually Impaired, that will appropriately meet the students' unique educational needs; 7. each completed IEP shall document the placement requirements described in Bulletin 1530„Louisiana's IEP Handbook. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2039 (October 2008). §117. Nonacademic Settings A. In providing or arranging for the provision of nonacademic and extracurricular services and activities including meals and recess periods and the services and activities set forth in §107, each public agency shall ensure that each student with a disability participates with non-disabled students in the extracurricular services and activities to the maximum extent appropriate to the needs of that student. The public agency shall ensure that each student with a disability has the supplementary aids and services determined by the student's IEP Team to be appropriate and necessary for the student to participate in nonacademic settings. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2039 (October 2008). §118. Students in Public or Private Institutions A. Except as provided in §149.D (regarding agency responsibility for general supervision for some individuals in adult prisons), the LDE shall ensure that §114 is effectively implemented, including, if necessary, making arrangements with public and private institutions (such as a memorandum of agreement or special implementation procedures). AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §119. Technical Assistance and Training Activities A. The LDE shall carry out activities to ensure that teachers and administrators in all public agencies: 1. are fully informed about their responsibilities for implementing §114; and 2. are provided with technical assistance and training necessary to assist them in this effort. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §120. Monitoring Activities A. The LDE shall carry out activities to ensure that §114 is implemented by each public agency. B. If there is evidence that a public agency makes placements that are inconsistent with §114, the LDE shall: 1. review the public agencys justification for its actions; and 2. assist in planning and implementing any necessary corrective action. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). Subchapter D. Additional Eligibility Requirements §121. Procedural Safeguards A. General. The LDE shall have procedural safeguards in effect to ensure that each public agency in the state meets the requirements of §§500 through 536. B. Procedural Safeguards Identified. Students with disabilities and their parents shall be afforded the procedural safeguards identified in Subsection A of this Section. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §122. Evaluation A. Students with disabilities shall be evaluated in accordance with §§301 through 308 of these regulations. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §123. Confidentiality of Personally Identifiable Information A. The LDE shall have policies and procedures in effect to ensure that public agencies in the state comply with §§611 through 626 related to protecting the confidentiality of any personally identifiable information collected, used, or maintained under part B of the IDEA. EDUCATION Louisiana Administrative Code September 2012 6 AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §124. Transition of Children from the Part C Program to Preschool Programs A. The state shall have in effect policies and procedures to ensure that: 1. children participating in early intervention programs assisted under Part C of the IDEA, and who will participate in preschool programs assisted under Part B of the IDEA, experience a smooth and effective transition to those preschool programs in a manner consistent with Section 637(a)(9) of the IDEA; 2. by the third birthday of a child described in Paragraph 1 of this Section, an IEP has been developed and is being implemented for the child consistent with §101.B; and 3. each affected LEA will participate in transition planning conferences arranged by the designated lead agency under Section 635(a)(10) of the IDEA. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §§125-128. Reserved. Subchapter E. Students in Private Schools §129. State Responsibility regarding Students in Private Schools A. The state shall have in effect policies and procedures that ensure that LEAs, and, if applicable, the LDE, meet the private school requirements in §§130 through 148. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). Subchapter F. Students with Disabilities Enrolled by their Parents in Private Schools §130. Definition of Parentally-Placed Private School Students with Disabilities A. Parentally-Placed Private School Students with Disabilities„students with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary or secondary school as defined in §905, other than students with disabilities covered under §§145 through 147. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2040 (October 2008). §131. Child Find for Parentally-Placed Private School Students with Disabilities A. Each LEA shall locate, identify, and evaluate all students with disabilities who are enrolled by their parents in private, including religious, elementary and secondary schools, located in the school district served by the LEA, in accordance with Subsections B through E of this Section and §§112 and 202. B. Child Find Design. The Child Find process shall be designed to ensure: 1. the equitable participation of parentally-placed private school students; and 2. an accurate count of those students. C. Activities. In carrying out the requirements of this Section, the LEA shall undertake activities similar to the activities undertaken for the agencys public school students. D. Cost. The cost of carrying out the Child Find requirements in this Section, including individual evaluations, may not be considered in determining if an LEA has met its obligation under §133. E. Completion Period. The Child Find process shall be completed in a time period comparable to that for students attending public schools in the LEA consistent with §302. F. Out-of-State Students. Each LEA in which private, including religious, elementary schools and secondary schools are located shall, in carrying out the child find requirements in this section, include parentally-placed private school students who reside in a state other than the state in which the private schools that they attend are located. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2041 (October 2008). §132. Provision of Services for Parentally-Placed Private School Students with Disabilities-Basic Requirements A. General. To the extent consistent with the number and location of students with disabilities who are enrolled by their parents in private, including religious, elementary and secondary schools located in the school district served by the LEA, provision is made for the participation of those students in the program assisted or carried out under part B of the IDEA by providing them with special education and related services, including direct services determined in accordance with §137 unless the secretary has arranged for services to those students under the by-pass provision in 34 CFR §§300.190 through 300.198. B. Services Plan for Parentally-Placed Private School Students with Disabilities. In accordance with Subsection A of this Section and §§137 through 139, a services plan shall be developed and implemented for each private school student with a disability who has been designated by the Title 28, Part XLIII Louisiana Administrative Code September 2012 7 LEA in which the private school is located to receive special education and related services under these regulations. C. Recordkeeping. Each LEA shall maintain in its records and provide to the LDE, the following information related to parentally-placed private school students covered under §§130 through 144: 1. the number of students evaluated; 2. the number of students determined to be students with disabilities; and 3. the number of students served. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2041 (October 2008). §133. Expenditures A. Formula. To meet the requirement of §132.A, each LEA shall spend the following on providing special education and related services (including direct services) to parentally-placed private school students with disabilities. 1. For students aged 3 through 21, an amount that is the same proportion of the LEA's total subgrant under Section 611(f) of the IDEA as the number of private school students with disabilities aged 3 through 21 who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, is to the total number of students with disabilities in its jurisdiction aged 3 through 21. 2.a. For students aged three through five, an amount that is the same proportion of the LEA's total subgrant under Section 619(g) of the IDEA as the number of parentally-placed private school students with disabilities aged three through five who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA is to the total number of students with disabilities in its jurisdiction aged three through five. b. As described in Subparagraph A.2.a of this Section, students with disabilities aged three through five are considered to be parentally-placed private school students with disabilities enrolled by their parents in private, including religious, elementary schools, if they are enrolled in a private school that meets the definition of elementary school in §905. 3. If an LEA has not expended for equitable services all of the funds described in Paragraphs A.1 and A.2 of this Section by the end of the fiscal year for which Congress appropriated the funds, the LEA shall obligate the remaining funds for special education and related services (including direct services) to parentally-placed private school students with disabilities during a carry-over period of one additional year. B. Calculating Proportionate Amount. In calculating the proportionate amount of federal funds to be provided for parentally-placed private school students with disabilities, the LEA, after timely and meaningful consultation with representatives of private schools under §134, shall conduct a thorough and complete Child Find process to determine the number of parentally-placed private school students with disabilities attending private schools located in the LEA. (See Appendix B of the IDEA Part B Regulations for an example of how proportionate share is calculated.) C. Annual Count of the Number of Parentally-Placed Private School Students with Disabilities 1. Each LEA shall: a. after timely meaningful consultation with representatives of parentally-placed private school students with disabilities (consistent with §134), determine the number of parentally-placed private school students with disabilities attending private schools located in the LEA; and b. ensure that the count is conducted on any date between October 1 and December 1, inclusive, of each year. 2. The count shall be used to determine the amount that the LEA shall spend on providing special education and related services to parentally-placed private school students with disabilities in the next subsequent fiscal year. D. Supplement, Not Supplant. State and local funds may supplement and in no case supplant the proportionate amount of federal funds required to be expended for parentally-placed private school students with disabilities under these regulations. E. School Choice Pilot Program for Certain Students with Exceptionalities 1. Introduction a. The purpose of the school choice pilot program for certain students with exceptionalities, hereafter referred to as the program,Ž shall be to provide certain students with exceptionalities the opportunity to attend schools of their parents choice that provide educational services specifically tailored to address said students specific needs. 2. Definitions a. Approved Non-public School i. non-public school that meets the following criteria: (a). approved, provisionally approved, or probationally approved by the state Board of Elementary and Secondary Education pursuant to R.S. 17:11 and according to Brumfield, et al. v. Dodd, et al. 425 F. Supp. 528. b. Continuous Attendance i. student is enrolled and actively attending school. c. Educational Certificate i. award amount allocated to an eligible school on behalf of an eligible student by the Louisiana Department of Education that shall be equivalent to 50 percent of the per pupil allocation of state funds to the city, parish, or other EDUCATION Louisiana Administrative Code September 2012 8 local public school district in which the eligible student is residing for that school year, but shall not exceed the amount of tuition charged by the eligible nonpublic school. d. Enrollment Status i. the category of enrollment at an eligible non-public school as evidenced by attendance and registration. e. Entrance Requirements i. requirements for entry into a participating non-public school. f. IEP i. a plan that provides the basis for programming for students with exceptionalities as specified in Bulletin 1530. g. Transfer i. a change in enrollment status resulting from the movement of an eligible student from one approved non-public school to another eligible non-public school during the current school year. h. Tuition i. the total costs associated with one year of enrollment at an eligible non-public school as assessed to similarly situated students. i. Services Plan i. a plan that provides the basis for services programming for students with exceptionalities as specified in Bulletin 1530. 3. Eligibility a. Student Eligibility i. A student shall be eligible to participate in the program after submission of an application to the Louisiana Department of Education not later than February 10 of the year prior to the year of eligibility and in accordance with the following requirements: (a). evaluation of the student by a local education agency as defined in R.S. 17:1942 and resulting in a determination that services are required for one of the following exceptionalities: (i). autism; (ii). mental disability; (iii). emotional disturbance; (iv). developmental delay; (v). other health impairment; (vi). specific learning disability; or (vii). traumatic brain injury; (b). having an individual education plan or a services plan for any service excluding gifted and talented as defined in R.S. 17:1942 and in accordance with Title 34 of the Code of Federal Regulations Part 300.37; (c). residence within an eligible parish in accordance with Act 515; (d). eligibility to attend public school and enter into kindergarten or grades 1-8. ii. An eligible student may be expelled from the school in accordance with the schools discipline policies or may be disqualified from enrollment if the student is no longer eligible for the program as determined by the department. b. School Eligibility i. A non-public school shall be eligible to enroll students through the program if it: (a). is an approved non-public school, as determined by the state Board of Elementary and Secondary Education pursuant to R.S. 17:11 and has been so approved for the school year prior to the schools participation in the program; and (b). has provided needed educational services to students with exceptionalities, as defined in R.S. 17:1942, excluding students deemed to be gifted or talented, for at least two years; and (c). has provided needed services to students by teachers holding appropriate special education certification or other appropriate education and training as defined in Bulletin 1706; and (d). provides services and instruction in accordance with a students individual education plan and/or services plan. ii. A non-public school seeking eligibility for this program shall provide the Louisiana Department of Education with the following documents in accordance with timelines determined by the Louisiana Department of Education: (a). a list of student exceptionalities that the school is able and willing to serve, as defined in R.S. 17:1942; (b). an itemized tuition calculation including all costs for special education services by specific disability as listed in this Section of Bulletin 1706 and all mandatory fees for the upcoming year, as well as the previous year. iii. Any non-public school that does not meet these requirements shall not receive approval for program participation. c. Eligible School Obligations i. Once a non-public school is determined to be eligible for the program it shall provide the following assurances and information, as well as meet the following deadlines in order to retain eligibility: Title 28, Part XLIII Louisiana Administrative Code September 2012 9 (a). determination of the number of eligible students it will accept in any year of program participation and establishment of criteria for enrollment of students; (b). no student seeking to enroll and participate in the program shall be required to take an entrance exam; (c). provision of all rules, policies, and procedures of the school, including but not limited to academic policies and disciplinary policies and procedures, to the parent or guardian of an eligible student; (d). completion of student enrollment by April thirtieth of the school year prior to the non-public schools participation in the program; (e). submission to the Louisiana Department of Education of a list of all eligible students conditionally enrolled in the school by June first of the year prior to the program year. 4. Finances a. Parental Obligations i. Parents of eligible students shall declare all other federal, state, local, and private financial aid to the student for educational purposes to the Louisiana Department of Education. ii. Parents of eligible students shall be responsible for paying any outstanding tuition obligations regardless of the educational certificate award, except for undisbursed educational certificate funds. b. School Obligations i. Any eligible school shall declare all other federal, state, local, and private financial aid to eligible students for educational purposes to the Louisiana Department of Education. ii. Any eligible school shall not increase tuition above itemized calculations provided to the Louisiana Department of Education by the school during eligibility determination. iii. Any eligible school shall not require parents to pay for undisbursed educational certificate funds, unless student becomes ineligible for the pilot program but remains at the school. iv. Any eligible school shall be subject to an audit of educational certificate funds by the Department of Education. c. Louisiana Department of Education Obligations i. The Louisiana Department of Education shall determine the total amount of the educational certificate after declaration by both parent and school of all other financial aid, subtracting any such aid from the maximum educational certificate value. ii. The Louisiana Department of Education shall disburse educational certificate funds in four separate payments to the eligible school in the months of September, November, February, and May. iii. Payments shall be based on per pupil count dates as determined by the Louisiana Department of Education. The count dates used are the fifteenth of September, November, February, and the fifth of May. iv. Should any of the count dates occur on a weekend, the count shall take place no later than the next business day. v. Should an eligible student begin attending an eligible non-public school after the start of the school year, the Louisiana Department of Education shall determine the method of disbursing the appropriate educational certificate amount. 5. Notifications of Change a. School Notification Requirements i. Any participating school shall notify the Louisiana Department of Education in writing within 10 days when there are changes in eligibility requirements including but not limited to: tuition, enrollment status, transfer, IEP, continuous attendance, and other types of financial aid as defined in this bulletin. 6. Student Records a. Any participating school shall make all program participants records available upon request by the Louisiana Department of Education. 7. Re-enrollment a. Each eligible school and student shall submit a re-enrollment application to continue participation in the pilot program the following school year. If either the school or student loses eligibility, another initial application for the pilot program may be submitted to the Louisiana Department of Education. 8. Lottery a. The Louisiana Department of Education shall hold a lottery for eligible, non-continuing students prior to the start of the school year, if demand for the pilot program exceeds available slots. AUTHORITY NOTE: Promulgated in accordance with R.S. 17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2041 (October 2008), amended LR 38:1401 (June 2012). §134. Consultation A. To ensure timely and meaningful consultation, an LEA, or, if appropriate, the LDE, shall consult with private school representatives and representatives of parents of parentally-placed private school students with disabilities during the design and development of special education and related services for the students regarding the following. 1. Child Find. The Child Find process, including: a. how parentally-placed private school students suspected of having a disability can participate equitably; and EDUCATION Louisiana Administrative Code September 2012 10 b. how parents, teachers, and private school officials will be informed of the process. 2. Proportionate Share of Funds. The determination of the proportionate share of federal funds available to serve parentally-placed private school students with disabilities under §133.B, including the determination of how the proportionate share of those funds was calculated. 3. Consultation Process. The consultation process among the LEA, private school officials, and representatives of parents of parentally-placed private school students with disabilities, including how the process will operate throughout the school year to ensure that parentally-placed students with disabilities identified through the child find process can meaningfully participate in special education and related services. 4. Provision of Special Education and Related Services. How, where, and by whom special education and related services will be provided for parentally-placed private school students with disabilities, including a discussion of: a. the types of services, including direct services and alternate service delivery mechanisms; and b. how special education and related services will be apportioned if funds are insufficient to serve all parentally-placed private school students; and c. how and when those decisions will be made. 5. Written Explanation by LEA Regarding Services. How, if the LEA disagrees with the views of the private school officials on the provision of services or the type of services (whether provided directly or through a contract), the LEA will provide to the private school officials a written explanation of the reasons why the LEA chose not to provide services directly or through a contract. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2042 (October 2008). §135. Written Affirmation A. When timely and meaningful consultation, as required by §134, has occurred, the LEA shall obtain a written affirmation signed by the representatives of participating private schools. B. If the representatives do not provide the affirmation within a reasonable period of time, the LEA shall forward the documentation of the consultation process to the LDE. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2042 (October 2008). §136. Compliance A. General. A private school official has the right to submit a complaint to the LDE 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 private school officials. B. Procedure: 1. if the private school official wishes to submit a complaint, the official shall provide to the LDE the basis of the noncompliance by the LEA with the applicable private school provisions in these regulations; and 2. the LEA shall forward the appropriate documentation to the LDE; 3.a. if the private school official is dissatisfied with the decision of the LDE, the official may submit a complaint to the secretary by providing the information on noncompliance described in Paragraph B.1 of this Section; and b. the LDE shall forward the appropriate documentation to the secretary. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2042 (October 2008). §137. Equitable Services Determined A. No Individual Right to Special Education and Related Services. No parentally-placed private school student with a disability has an individual right to receive some or all of the special education and related services that the student would receive if enrolled in a public school. B. Decisions 1. Decisions about the services that will be provided to parentally-placed private school students with disabilities under §§130 through 144 shall be made in accordance with Subsection C of this Section and §134.A.3. 2. The LEA shall make the final decisions with respect to the services to be provided to eligible parentally-placed private school students with disabilities. C. Services Plan for Each Student Served under §§130 through 144. If a student with a disability is enrolled in a religious or other private school by the student'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 student in accordance with §138; and 2. ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the religious or other private school, including individual or conference telephone calls. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2042 (October 2008). Title 28, Part XLIII Louisiana Administrative Code September 2012 11 §138. Equitable Services Provided A. General 1. The services provided to parentally-placed private school students with disabilities shall be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school students with disabilities do not have to meet the highly qualified special education teacher requirements contained in the definition of highly qualified special education teachers in §905. 2. Parentally-placed private school students with disabilities may receive a different amount of services than students with disabilities in public schools. B. Services Provided in Accordance with a Services Plan 1. Each parentally-placed private school student with a disability who has been designated to receive services under §132 shall have a services plan that describes the specific special education and related services that the LEA will provide to the student in light of the services that the LEA has determined, through the process described in §§134 and 137, it will make available to parentally-placed private school students with disabilities. 2. The services plan shall, to the extent appropriate: a. meet the requirements at §320, or for a child ages three through five, meet the requirements of §323.B with respect to the services provided; and b. be developed, reviewed, and revised consistent with §§321 through 324. C. Provision of Equitable Services 1. The provision of services pursuant to this Section and §§139 through 143 shall be provided: a. by employees of a public agency; or b. through contract by the public agency with an individual, association, agency, organization, or other entity. 2. Special education and related services provided to parentally-placed private school students with disabilities, including materials and equipment, shall be secular, neutral, and nonideological. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2043 (October 2008). §139. Location of Services and Transportation A. Services on Private School Premises. Services to parentally-placed private school students with disabilities may be provided on the premises of private, including religious, schools, to the extent consistent with law. B. Transportation 1. General a. If necessary for the student to benefit from or participate in the services provided under these regulations, a parentally-placed private school student with a disability shall be provided transportation: i. from the students school or the students home to a site other than the private school; and ii. from the service site to the private school, or to the student's home, depending on the timing of the services. b. LEAs are not required to provide transportation from the students home to the private school. 2. Cost of Transportation. The cost of the transportation described in Subparagraph B.1.a of this Section may be included in calculating whether the LEA has met the requirements of §133. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2043 (October 2008). §140. Requests for Due Process Hearings and State Complaints A. Due Process not Applicable, Except for Child Find 1. Except as provided in Subsection B of this Section, the procedures in §505 through 519 do not apply to requests for due process hearings alleging that an LEA has failed to meet the requirements of §§132 through 139, including the provision of services indicated on the student's services plan. B. Child Find complaints„to be filed with the LEA in which the private school is located. 1. The procedures in §505 through 519 apply to requests for due process hearings alleging that an LEA has failed to meet the Child Find requirements, in §131, including the requirements in §§301 through 308. 2. Any request for due process hearing regarding the child find requirements (as described in Paragraph B.1 of this Section) shall be filed with the LEA in which the private school is located and a copy shall be forwarded to the LDE. C. State Complaints 1. Any complaint that the LDE or LEA has failed to meet the requirements in §§132 through 135 and 137 through 144 shall be filed in accordance with the procedures described in §§151 through 153. 2. A complaint filed by a private school official under §136.A shall be filed with the LDE in accordance with the procedures in §136.B. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2043 (October 2008). EDUCATION Louisiana Administrative Code September 2012 12 §141. Requirement that Funds Not Benefit a Private School A. The LEA may not use funds provided under §611 or §619 of the IDEA to finance the existing level of instruction in a private school or to otherwise benefit the private school. B. The LEA shall use funds provided under Part B of the IDEA to meet the special education and related services needs of parentally-placed private school students with disabilities, but not for meeting: 1. the needs of a private school; or 2. the general needs of the students enrolled in the private school. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2043 (October 2008). §142. Use of Personnel A. Use of Public School Personnel. An LEA may use funds available under §§611 and 619 of the IDEA to make public school personnel available in other than public facilities: 1. to the extent necessary to provide services under §§130 through 144 for parentally-placed private school students with disabilities; and 2. if those services are not normally provided by the private school. B. Use of Private School Personnel. An LEA may use funds available under §§611 and 619 of the IDEA to pay for the services of an employee of a private school to provide services under §§130 through 144 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. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2044 (October 2008). §143. Separate Class Prohibited A. An LEA may not use funds available under §§611 or 619 of the IDEA for classes that are organized separately on the basis of school enrollment or religion of the students if: 1. the classes are at the same site; and 2. the classes include students enrolled in public schools and students enrolled in private schools. A§UTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2044 (October 2008). §144. Property, Equipment, and Supplies A. A public agency shall control and administer the funds used to provide special education and related services under §§137 through 139, and hold title to and administer materials, equipment, and property purchased with those funds for the uses and purposes provided in the IDEA. B. The public agency may place equipment and supplies in a private school for the period of time needed for the IDEA part B program. C. The public agency shall ensure that the equipment and supplies placed in a private school: 1. are used only for part B purposes; and 2. can be removed from the private school without remodeling the private school facility. D. The public agency shall remove equipment and supplies from a private school if: 1. the equipment and supplies are no longer needed for IDEA part B purposes; or 2. removal is necessary to avoid unauthorized use of the equipment and supplies for other than IDEA part B purposes. E. No funds under Part B of the IDEA may be used for repairs, minor remodeling, or construction of private school facilities. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2044 (October 2008). Subchapter G. Students with Disabilities in Private Schools Placed or Referred by Public Agencies §145. Applicability of §§146 through 147 A. Sections 146 through 147 apply only to students with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2044 (October 2008). §146. Responsibility of the LDE A. The LDE shall ensure that a student with a disability who is placed in or referred to a private school or facility by a public agency: 1. is provided special education and related services: a. in conformance with an IEP that meets the requirements of §§320 through 325; and b. at no cost to the parents; Title 28, Part XLIII Louisiana Administrative Code September 2012 13 2. is provided an education that meets the standards that apply to education provided by the LDE and LEAs including the requirements of these regulations, except for requirements contained in the definition of highly qualified special education teachers in §905 and §156.C; and 3. has all of the rights of a student with a disability who is served by a public agency. B. When it is necessary to provide special education and related services in programs other than public schools, these placements must not occur until it has been determined by the LDE that the student cannot be appropriately educated by another public agency of the state. After determination has been made that neither the public schools nor another public agency of the state can adequately provide special education and related services, then private programs within the state may be considered. If these programs are still inadequate to meet the educational needs of the student, then out-of-state private programs may be approved. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2044 (October 2008). §147. Implementation by the LDE A. In implementing §146, the LDE shall: 1. monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires; 2. disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a student with a disability; and 3. provide an opportunity for those private schools and facilities to participate in the development and revision of State standards that apply to them. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2044 (October 2008). Subchapter H. Students with Disabilities Enrolled by their Parents in Private Schools when FAPE is an Issue §148. Placement of Students by Parents when FAPE is at Issue A. General. These regulations do not require an LEA to pay for the cost of the education, including special education and related services, of a student with a disability at a private school or facility if that agency made a FAPE available to the student, and the parents elected to place the student in a private school or facility. However, the public agency shall include that student in the population whose needs are addressed consistent with §§131 through 144. B. Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the student, and the question of financial reimbursement, are subject to the due process procedures in §§505 through 520. C. Reimbursement for Private School Placement. If the parents of a student with a disability, who previously received special education and related services under the authority of a public agency, enroll the student in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the student in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if the placement does not meet the state standards that apply to education provided by the LEAs and the LDE. D. Limitation on Reimbursement. The cost of reimbursement described in Subsection C of this Section may be reduced or denied: 1. if: a. at the most recent IEP Team meeting that the parents attended prior to removal of the student from the public agency, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to the student, including stating their concerns and their intent to enroll their child in a private school at public expense; or b. at least 10 business days (including any holidays that occur on a business day) prior to the removal of the student from the public school, the parents did not give written notice to the public agency of the information described in Subparagraph D.1.a of this Section; 2. if, prior to the parents' removal of the student from the public school, the public agency informed the parents, through the notice requirements described in §504.A.1, of its intent to evaluate the student (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the student available for the evaluation; or 3. if, upon a judicial finding of unreasonableness with respect to actions taken by the parents. E. Exception. Notwithstanding the notice requirement in Paragraph D.1 of this Section, the cost of reimbursement: 1. shall not be reduced or denied for failure to provide the notice if: a. the school prevented the parents from providing the notice; b. the parents had not received notice, pursuant to §505, of the notice requirement in Paragraph D.1 of this Section; or c. compliance with Paragraph D.1 of this Section would likely result in physical harm to the student; and EDUCATION Louisiana Administrative Code September 2012 14 2. may, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if: a. the parents are not literate or cannot write in English; or b. compliance with Paragraph D.1 of this Section would likely result in serious emotional harm to the student. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2045 (October 2008). Subchapter I. LDE Responsibilities for General Supervision and Implementation of Procedural Safeguards §149. LDE Responsibility for General Supervision A. The LDE shall ensure: 1. that all requirements under these regulations are carried out; and 2. that each educational program for students with disabilities administered within the state, including each program administered by any other state or local agency (but not including elementary schools and secondary schools for Indian students operated or funded by the Secretary of the Interior): a. is under the general supervision of the persons responsible for educational programs for students with disabilities in the state; and b. meets the educational standards of the LDE (including the requirements of these regulations); 3. in carrying out these regulations with respect to homeless children, the requirements of Subtitle B of Title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met. B. The LDE adopts written procedures in Bulletin 1922„Compliance Monitoring Procedures, as well as the provisions of §601, to ensure that it complies with the monitoring and enforcement requirements in §§601 through 606. C. Part B of the IDEA does not limit the responsibility of agencies other than educational agencies for providing or paying some or all of the costs of FAPE to students with disabilities in the state. D. Notwithstanding Subsection A of this Section, the governor (or another individual pursuant to state law) may assign to any public agency in the state the responsibility of ensuring that the requirements of Part B of the IDEA are met with respect to students with disabilities who are convicted as adults under state law and incarcerated in adult prisons. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2045 (October 2008). §150. LDE Implementation of Procedural Safeguards A. The LDE (and any agency assigned responsibility pursuant to §149.D) shall have in effect procedures to inform each public agency of its responsibility for ensuring effective implementation of procedural safeguards for the students with disabilities served by that public agency. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2045 (October 2008). Subchapter J. State Complaint Procedures §151. Adoption of State Complaint Procedures and Early Resolution Program A. General. The LDE adopts written procedures herein and in Bulletin 1573„Complaint Management Procedures, for: 1. the purpose of resolving any complaint alleging that a public agency has violated a requirement of Part B of the Act, including a complaint filed by an organization or individual from another state, that meets the requirements of §§151 through 153 by providing: a. for the implementation of an early resolution process (ERP); and/or b. the filing of a formal written complaint with the LDE. B. The LDE shall widely disseminate to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities: 1. the state procedures under §§151 through 153 and Bulletin 1573„Complaint Management Procedures; and 2. the appropriate contact information for LEAs and other public agencies serving students. C. Informal Complaints. It is the policy of the LDE to encourage and support prompt and effective resolution of any complaint described in §151.A.1 in the least adversarial manner possible. The LDE shall effect such policy to promote dispute prevention and the swift resolution of disputes by implementing an early resolution process. 1. Early Resolution Process (ERP)„an ongoing and systematic, informal dispute resolution process. a. ERP shall include a systematic, local level process for the prompt and orderly resolution of complaints by each public educational agency, including public charter schools. b. Each LEA in the state shall establish an internal ERP in accordance with standards outlined in Bulletin 1573„Complaint Management Procedures, which shall include: Title 28, Part XLIII Louisiana Administrative Code September 2012 15 i. the designation of a local ERP representative and notice of the name, address, telephone number; and ii. other contact information for the LEA's designated ERP representative. c. The implementation of the ERP by each LEA draws on the traditional model of parents and schools working cooperatively in the educational interest of the student to achieve their shared goal of meeting the educational needs of students with disabilities. d. To promote the cooperative resolution of complaints at the local level, the LDE shall not be involved in the informal resolution process (ERP) implemented at the local level, but shall route to the public agency's ERP representative, verbal and other informal complaints or allegations received by the LDE. 2. Requesting ERP. A parent, adult student, individual, or organization shall initiate a request for ERP on one or more issues described in §151.A.1 by contacting the local level ERP representative or the LDE's ERP Intake Coordinator(s). a. Informal complaints to the LDE shall only be made through the LDE's Intake Coordinator(s) who shall refer the complaint to the ERP representative of the LEA immediately, if possible, but not later than two calendar days after receiving the complaint. b. The LDE's Intake Coordinator(s) shall: i. be the LDE's only designated individual(s) to perform complaint intake duties and responsibilities; ii. not have a juris doctorate degree; iii. have completed specific training in accepted methods and practices for recording information in a neutral and confidential manner; and iv. perform duties consisting of receipt of informal complaints and request for ERP; providing local agency ERP contact information to the complainant(s); and referral of such informal complaint or ERP request to the local agencys ERP Representative in accordance with Subsection C of this Section. 3. Early Resolution Period. If a resolution of the informal complaint cannot be achieved within 15 calendar days of the public agency's receipt of the complaint, or an extended period agreed upon by the parties in writing, the LEA's ERP representative shall advise the complainant of the availability of other dispute resolution processes available through the LDE. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2046 (October 2008), amended LR 36:1499 (July 2010). §152. Formal Written Complaints Filing and Content Requirements A. An organization or individual, including those from another state, may file a signed written complaint under the procedures described in §§151 through 153. B. The complaint shall include: 1. a statement that a public agency has violated a requirement of Part B of the IDEA or these regulations; 2. the facts on which the statement is based; 3. the signature and contact information for the complainant; and 4. if alleging violations with respect to a specific student: a. the name and address of the residence of the student; b. the name of the school the student is attending; c. 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 student, and the name of the school the student is attending; 5. a description of the nature of the problem of the student, including facts relating to the problem; and 6. a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed. C. The complaint shall allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with §§151 through 153. D. The party filing the complaint shall forward a copy of the complaint to the LEA or public agency serving the student, at the same time the party files the complaint with the LDE. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2046 (October 2008), repromulgated LR 36:1500 (July 2010). §153. Formal Written Complaint Procedures A. Time Limit; Minimum Procedures. Upon receipt of a signed written complaint filed under §152, the LDE shall refer the complaint to the ERP representative in accordance with §151. 1. The LDE shall: a. not commence investigation of a complaint until the expiration of the informal resolution period described in §151.C.3; but b. shall complete its investigation of unresolved allegations and issue a decision within 45 days after the expiration of the early resolution period in accordance with the procedures contained in this Section. EDUCATION Louisiana Administrative Code September 2012 16 2. Upon expiration of the resolution period, the LDE shall review the allegations contained in the complaint and shall provide written notice to the LEA or public agency serving the student, including the following: a. a request for specific information needed by the LDE to carry out its independent investigation of the complaint; b. reasonable timelines established for providing such information to the LDE; c. a statement of the opportunity to respond to the complaint, including at a minimum: i. the opportunity to provide a proposal to resolve the complaint, at their discretion; and ii. the opportunity to offer to the parent who has filed a complaint, mediation consistent with §506 or neutral IEP facilitation as available through the LDE. B. The LDE shall provide written notice to the complainant including a statement of the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint. C. All information relevant to the complaint shall be reviewed by the LDE, and a decision shall be made as to whether an independent on-site investigation is needed. D. The LDE shall review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the IDEA. E. Decision. Within 45 days of expiration of the early resolution process, the LDE shall issue a written decision to the complainant and the public agency that addresses each remaining allegation of the complaint and contains: 1. findings of fact and conclusions; and 2. the reasons for the LDE's final decision. F. Time Extension; Final Decision; Implementation. The LDE shall permit an extension of the time limit under Subsection A of this Section only if: 1. exceptional circumstances exist with respect to a particular complaint; or 2. the parent (or individual or organization) and the public agency involved agree to extend the time to engage in mediation, IEP facilitation, or other alternative means of dispute resolution. G. Complaints Filed under this Section and Due Process Hearings Under §507 and §§530 through 532. 1. If a written complaint received is also the subject of a due process hearing under §507 or §§530 through 532 or, if it contains multiple issues, of which one or more is part of that hearing, the LDE 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 of the complaint that is not a part of the due process action shall be resolved, using the time limit and procedures described in Subsections A and B of this Section. 2. If an issue raised in a complaint has previously been decided in a due process hearing involving the same parties: a. the due process hearing decision shall be binding on that issue; and b. the LDE shall inform the complainant to that effect. 3. A complaint alleging an agency's failure to implement a due process hearing decision shall be resolved by the LDE. H. Remedies for Denial of Appropriate Services. In resolving a complaint in which it has found a failure to provide appropriate services, the LDE, pursuant to its general supervisory authority under Part B of the IDEA, shall address: 1. the failure to provide appropriate services including corrective action appropriate to address the needs of the student (such as compensatory services or monetary reimbursement); and 2. appropriate future provision of services for all students with disabilities. I. Reconsideration Requests. If either the public agency or the complainant believes that the LDE has made an error in one or more findings of fact and/or law, a reconsideration of the investigative findings and decision may be requested, in writing, to the LDE's legal division in accordance with the following procedures: 1. the request shall be simultaneously submitted to the LDE and the other party subject to the complaint; and 2. for each error submitted for reconsideration, the requestor shall provide the reference number assigned by the LDE to the complaint at issue; the page number of the written decision where such alleged error can be found; highlighted sections of data submitted for investigation that would assert a fact contrary to what is reflected in the written decision; and citations to applicable law, regulations, or jurisprudence, where applicable, to support the alleged error of law; and 3. the requestor shall provide a written explanation that indicates how originally-submitted documentation changes the respective finding(s) of fact or law and/or how the alleged error impacts the conclusion of the LDE with respect to the allegation(s) at issue; 4. documents and other information not originally submitted regarding the allegation(s) shall not be accepted for review; and 5. reconsideration requests, including all documentation relevant to the reconsideration request, shall be received by the LDE no later than 10 calendar days after the date of receipt of the investigative report. Should the other party to the complaint wish to respond to the reconsideration request, the response shall be received by the LDE no later than 10 calendar days after the LDE received the original reconsideration request; and Title 28, Part XLIII Louisiana Administrative Code September 2012 17 6. reconsideration requests received by the LDE after the 10 calendar day deadline shall not be reviewed; 7. reconsideration requests received timely and that meet criteria established by this subsection shall be reviewed by a panel of individuals appointed by the division director and the LDE shall inform the complainant and the public agency of its determinations, in writing, within 30 calendar days from the date the LDE receives the written reconsideration request; 8. reconsideration requests by third parties shall not be accepted; 9. reconsideration requests shall not be used to delay or deny implementation of FAPE for a student with a disability; 10. implementation of any corrective actions required in the states initial (pre-reconsideration) decision shall not be delayed pending the reconsideration process. J. The LDE shall ensure effective implementation of the final decision, if needed, including: 1. technical assistance activities; 2. negotiations; and 3. corrective actions to achieve compliance. K. Correction of Non-Compliance. If a complaint results in a finding of non-compliance, the public agency shall be required to document that it has taken corrective action as required by the complaint decision. 1. The LDE shall refer and recommend to BESE the delay or denial of funding or an offset of future funding for any LEA that, after due notice: a. refuses or fails to submit requested documentation of corrective action; or b. refuses or fails to take or complete required corrective action. 2. The state board shall provide reasonable notice and an opportunity for a hearing according to procedures set out in Education Division General Administrative Regulations (EDGAR) at 34 CFR 76.401 before the LDE delays, denies, or offsets the funding of any LEA under IDEA Part B. AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq. HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 34:2047 (October 2008), amended LR 36:1500 (July2010). Subchapter K. Methods of Ensuring Services §154. Methods of Ensuring Services A. Establishing Responsibility for Services. The governor of Louisiana or the designee of the governor shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each non-educational public agency described in Subsection B of this Section and the LDE, in order to ensure that all services described in Subsection B of this Section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under Paragraph A.3 of this Section. The agreement or mechanism shall include the following: 1. an identification of, or a method for defining, the financial responsibility of each agency for providing services described in Paragraph B.1 of this Section to ensure FAPE to students with disabilities. The financial responsibility of each non-educational public agency described in Subsection B of this Section, including the state Medicaid agency and other public insurers of students with disabilities, shall precede the financial responsibility of the LEA (or the state agency responsible for developing the student's IEP); 2. the conditions, terms, and procedures under which an LEA shall be reimbursed by other agencies; 3. procedures for resolving interagency disputes (including procedures under which LEAs may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism; 4. policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in Paragraph B.1 of this Section. B. Obligation of Non-Educational Public Agencies 1.a. If any public agency other than an educational agency is otherwise obligated under federal or state law, or assigned responsibility under state policy or pursuant to Subsection A of this Section, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in §905 relating to assistive technology devices, assistive technology services, related services, supplementary aids and services, and transition services) that are necessary for ensuring FAPE to students with disabilities within the state, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to Subsection A of this Section or an agreement pursuant to Subsection C of this Section. b. A non-educational public agency described in Subparagraph B.1.a of this Section may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context. 2. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in Paragraph B.1 of this Section, the LEA (or state agency responsible for developing the students IEP) shall provide or pay for these services to the student in a timely manner. The LEA or state agency is authorized to claim reimbursement for the services from the non-educational public agency that failed to provide or pay for these services and that agency shall reimburse the LEA or state agency in accordance with the terms of the interagency