in-20260603-IR-511260157FNA: DUE PROCESS HEARINGS

TITLE 511 INDIANA STATE BOARD OF EDUCATION Notice of First Public Comment Period LSA Document #26-157 DUE PROCESS HEARINGS PURPOSE OF NOTICE The Indiana State Board of Education (board) is soliciting public comment on adding and amending rules at 511 IAC 7 concerning due process hearing procedures. ADDITIONAL DOCUMENTS Regulatory Analysis: 20260603-IR-511260157RAA Notice of Public Hearing: 20260603-IR-511260157PHA CITATIONS AFFECTED: 511 IAC 7-32; 511 IAC 7-38-1; 511 IAC 7-40-5; 511 IAC 7-43-6; 511 IAC 7-44-9; 511 IAC 7-45; 511 IAC 7-50-4 AUTHORITY: IC 20-19-2-8; IC 20-19-2-16; IC 20-35 OVERVIEW Basic Purpose and Background The proposed rule is adding and amending rules at 511 IAC 7 to more accurately reflect the requirements of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., 34 CFR Part 300, concerning: the definition of public agency; access to and disclosure of educational records; conducting an initial educational evaluation; the appointment of an educational representative; protections for students not yet eligible for special education and related services; and reevaluation of education scholarship students. Additionally, House Bill 1380, effective July 1, 2024, added IC 20-35-14, granting the office of administrative law proceedings jurisdiction over impartial hearing officers authorized to conduct IDEA hearings. By updating the term “independent hearing officer” to “impartial hearing officer”, the language makes clear that the department of education no longer uses independent contractors to administer IDEA hearings. The proposed rule changes will impact approximately 308 K-12 public school corporations encompassing 1,819 public schools, all nonpublic schools serving education scholarship account students, and 138 public charter schools. The implementation costs of the proposed rule are not expected to exceed the threshold set in IC 4-22-2-22.7(c)(6). For purposes of IC 4-22-2-28.1, small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator: For purposes of IC 4-22-2-28.1, the Small Business Ombudsman designated by IC 5-28-17-6 is: Resources available to regulated entities through the small business ombudsman include the ombudsman's duties stated in IC 5-28-17-6, specifically IC 5-28-17-6(9), investigating and attempting to resolve any matter regarding compliance by a small business with a law, rule, or policy administered by a state agency, either as a party to a proceeding or as a mediator. REQUEST FOR PUBLIC COMMENT The board is soliciting public comment on the proposed rule. Comments may be submitted in one of the following ways: COMMENT PERIOD DEADLINE All comments must be postmarked or time-stamped not later than July 9, 2026. The rule, Regulatory Analysis, appendices referenced in the Regulatory Analysis, and materials incorporated by reference (if applicable) are on file at the Indiana State Board of Education, 200 West Washington Street, Room 228, Indianapolis, Indiana and are available for public inspection. Copies of the rule, Regulatory Analysis, and appendices referenced in the Regulatory Analysis are available at the Indiana State Board of Education office. If the board does not receive substantive comments during the public comment period or public hearing, the rule may be adopted with text that is the same as or does not substantially differ from the text of the proposed rule published in this notice. PROPOSED RULE Sec. 29.5. “Educational service agency” means a regional public multiservice agency that: Sec. 60. "Local educational agency" or “LEA” means a public board of education or other public authority legally constituted: publicly funded schools as such schools are established under the laws of Indiana law. The term includes school corporations, charter schools not part of school corporations, and state operated schools. Sec. 77. "Public agency" means: any public entity that is responsible for providing special education and related services, including the following: Sec. 1. (a) The A public agency must annually notify, in writing, parents of students currently in attendance, or students of legal age currently in attendance, of their rights regarding confidentiality of personally identifiable information. The notice must inform the parents or students of legal age that they have the right to the following: (b) The A written notice described in subsection (a) must include the following: (c) The A public agency: (d) The right to inspect and review educational records includes the right to: (e) A public agency must permit the a parent, or the parent's representative, to inspect and review any educational record of the parent's children from birth to eighteen (18) years of age that are is collected, maintained, or used by the public agency as described in this rule. All The rights under this rule transfer from the parent to the student of legal age as defined in 511 IAC 7-32-91. when the student has reached eighteen (18) years of age and not had a guardian appointed. (f) The A public agency must permit a custodial and noncustodial parent to inspect and review the student's educational record unless the public agency has received actual written notice that a court order has terminated or restricted the parent's authority to access the student's educational record under applicable state law governing matters, such as, but not limited to, the following: (g) The A public agency must comply with a request from a parent or student of legal age to inspect and review the student's educational record: (h) The A public agency may charge a fee for copies of educational records, unless the requested record is a copy of a student's educational evaluation report or IEP, which must be provided at no cost to a parent or student of legal age, including a parent of a student or student of legal age who attends a nonpublic school. Fees for copies must may not: The A public agency may not charge a fee to search for or to retrieve information under this rule. (i) If an educational record includes information on more than one (1) student, the a parent or student of legal age has the right to: (j) The A public agency must maintain a record of each request for access to and disclosure of personally identifiable information from the educational record of each student, except when the disclosure has been made by or to any of the following: (k) The A record of access and disclosure must: (l) If the a public agency discloses personally identifiable information with the understanding that the party receiving the information may make further disclosures on behalf of the public agency in which where prior consent is not required, the record of disclosure must include the following: (m) The A public agency, upon at the request of a parent or student of legal age, must provide a list of the types and locations of educational record: records: by the public agency. (n) If a student transfers from one (1) school to another, the public agency's transmission of any of the student's educational record transmitted by a public agency must include the following: (o) When the a public agency reports a crime committed by a student with a disability, the public agency must ensure that copies of the education and disciplinary record of the student are transmitted only to the extent if the transmission is permitted by the Family Educational Rights and Privacy Act, which includes requiring the receiving authorities to certify in writing that the records will not be disclosed to any other parties, and as required by IC 20-33-7-3, without the prior written consent of the parent or the student of legal age for consideration by the appropriate authorities to whom it the public agency reports the crime. (p) Except as specified in subsection (o), (q), or (r), written and dated consent of the a parent or student of legal age must be obtained before personally identifiable information is disclosed to anyone other than the parent, student of legal age, or authorized public agency officials, or before the information is used for any a purpose other than those specified in this rule. The consent must specify the following: (q) Parental consent is not required before personally identifiable information is released to officials of other agencies or institutions for purposes of meeting to meet a requirement of this article, except as follows: (r) The A public agency may allow access to, or disclose information from, an educational record without consent of the parent or student of legal age under any of the following conditions: (s) The public agency must, upon request, provide the parent or student of legal age with a copy of the information that has been disclosed (s) When a disclosure is made under subsection (p), and if a parent or student of legal age requests, an educational agency or institution must provide the parent or student of legal age with a copy of the records disclosed. (t) The A public agency may disclose personally identifiable information from an educational record only on the condition that the party to whom the information is disclosed will not redisclose the information to any other party without the prior consent of the parent or student of legal age, except for disclosures: (u) The A public agency must not permit a third party access to personally identifiable information from an educational record for at least five (5) years, if the Family Policy Compliance Office, United States Department of Education determines that the third party improperly redisclosed personally identifiable information from the educational record. (v) In the event that If a parent refuses to provide consent under this section, the a public agency may initiate the due process procedures stated in 511 IAC 7-45. Sec. 5. (a) After a parent has provided consent, as defined in 511 IAC 7-32-17, for an initial educational evaluation, the a public agency must conduct a comprehensive and individual educational evaluation in accordance with under the requirements of this rule and 511 IAC 7-41. The educational evaluation must be conducted by a multidisciplinary team that prepares an educational evaluation report addressing the necessary components of the evaluation specific to each suspected disability set forth in 511 IAC 7-41. The report is utilized used: (b) The An educational evaluation must be conducted by a multidisciplinary team, which is a group of qualified professionals who conduct conducting a student's educational evaluation with input from the student's parent. The qualified professionals include, but are not limited to, the following: (c) As part of the an educational evaluation, the multidisciplinary team must, with or without a meeting, do the following: (d) The An initial educational evaluation must be conducted and the CCC convened within fifty (50) instructional days of the date the written parental consent is received by licensed personnel in accordance with under section 4(h) of this rule. The time frame does not apply in the following situations: (e) After an educational evaluation has been completed, the multidisciplinary team must compile the its findings of the multidisciplinary team into an educational evaluation report. (f) For a student with the suspected disability of autism spectrum disorder, the an educational evaluation report must include the results of the multidisciplinary team's assessments, observations, and collection of information as aligned to the characteristics of autism spectrum disorder. (g) For a student with a suspected learning disability, the an educational evaluation report must include the following: (h) If a parent requests, under section 4(h)(1) of this rule, a copy of the an educational evaluation report prior to the before a CCC meeting, the public agency must ensure that a copy of the educational evaluation report is made available at no cost to the parent not less than five (5) instructional days prior to before the scheduled CCC meeting. (i) If a parent requests, under section 4(h)(2) of this rule, a meeting to have the results of the an educational evaluation explained prior to the before a scheduled CCC meeting, the a public agency must arrange a meeting with the parent and an individual who can explain the evaluation results within five (5) instructional days prior to before the scheduled CCC meeting. The meeting shall be scheduled at a mutually agreed upon date, time, and place. A copy of the educational evaluation report must be provided at no cost to, and reviewed with, the parent at this meeting. (j) If the a parent does not request a: prior to before the initial CCC meeting, the public agency must provide a copy of the educational evaluation report at no cost to the parent at the CCC meeting. If the a student is parentally placed in a nonpublic school, the public agency shall also provide a copy of the educational evaluation report at no cost to the nonpublic school representative. Sec. 6. (a) Any A student eligible for special education and related services who has become eighteen (18) years of age and has not had a guardian appointed under IC 29-3 may have an educational representative appointed to make educational decisions on the student's behalf if the student: (b) A student's parent must be appointed to act as the educational representative under this section. If the parent is unavailable, a person trained as an educational surrogate parent under 511 IAC 7-39-2 must be appointed by the public agency to serve as the educational representative. (c) An appointment of an educational representative under this section may be made as early as sixty (60) calendar days prior to the before a student's eighteenth birthday. (d) The A public agency is not responsible for the cost of appointing an educational representative. (e) A student who requests that an educational representative be appointed under subsection (a)(1) may request, in writing, that the appointment be revoked. (f) For an educational representative to be appointed under subsection (a)(2), two (2) persons described in subsection (g) must, based on personal examination or interview, certify in writing that the student is incapable of providing informed consent and that the student has been informed notified of this decision. As used in this section, "incapable of providing informed consent" means that the student is unable to cannot do the following: (g) Persons who certify in writing that a student is incapable of providing informed consent must be one (1) of the following: (h) Persons providing certification described in subsection (f) cannot may not be related to a relative of the student. (i) At least one (1) of the persons providing certification described in subsection (f) cannot may not be employed by the public agency serving the student. Sec. 9. (a) A student who has: may assert any of the protections provided for in under this article rule if the public agency had knowledge, as described in subsection (b), that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. (b) A public agency shall be deemed to have knowledge that a student is a student with a disability if any of the following have occurred: (c) A public agency shall not be deemed to have knowledge under subsection (b) if any of the following has occurred: (d) If a public agency does not have knowledge, in accordance with under subsections (b) and (c), that a student is a student with a disability prior to before taking disciplinary measures against the student, the student may be subjected to the same disciplinary measures as measures applied to students without disabilities who have engaged in comparable behaviors, subject to subsections (e) and (f). (e) If a referral is made for an initial educational evaluation of a student during the time period in which the student is subjected to: the evaluation must be conducted in an expedited manner. Until the evaluation is completed, the student remains in the educational placement determined by school authorities, which may include suspension or expulsion without educational services. (f) As used in this rule, "expedited evaluation" means that the a public agency conducts the evaluation and convenes the CCC within twenty (20) instructional days from after the date of the a parent's written consent for the evaluation. A copy of the educational evaluation report shall be provided given to the parent at the CCC convened to consider the a student's identification and eligibility for special education services. (g) If the a student is determined to be a student with a disability, taking into consideration information: the public agency shall provide special education and related services in accordance with under this article. Sec. 3. (a) A parent a or public agency or the state educational agency may initiate a due process hearing that is conducted by an independent impartial hearing officer when there is a dispute regarding any of the following: (b) A request for a due process hearing and for the appointment of an independent impartial hearing officer shall: (c) The A due process hearing request must allege a violation that occurred not more than two (2) years before the date the a parent or public agency knew, or should have known, about the alleged action that forms the basis of the due process hearing request unless the parent was prevented from filing a due process hearing request due to: (d) The secretary of education office of administrative law proceedings shall appoint the independent an impartial hearing officer. When a due process hearing request is received, the state educational agency shall send the public agency and the parent a: (e) The A public agency must inform the a parent of the availability of free or low cost legal services and other relevant services available in the area if: (f) Due process timelines begin upon once the opposing party's receipt of party receives the due process hearing request. Sec. 4. (a) A party may not have a hearing on the issues contained in a due process hearing request until the: files a due process hearing request that meets the requirements of section 3(b) of this rule. (b) The A due process hearing request must be deemed sufficient unless the party receiving the due process hearing request notifies the impartial hearing officer and the other party in writing that the request does not meet the requirements set forth in section 3(b) of this rule. An allegation that the due process hearing request is insufficient must: (c) Within five (5) calendar days of receipt of after receiving notification that a party believes a due process hearing request is insufficient, the independent impartial hearing officer must: If the impartial hearing officer determines that the notice is not sufficient, the impartial hearing officer's decision must identify how the notice is insufficient and provide a date by which deadline for the filing party can to amend the notice, if appropriate. (d) For reasons other than a determination of insufficiency, a party may amend its due process hearing request only if: the: (e) If a party files an amended due process hearing request, the: begin again with the filing of the amended due process hearing request. (f) If the a due process hearing request is: the due process hearing request may be dismissed. Sec. 6.5. (a) An initial prehearing conference shall be conducted as follows: (b) The independent impartial hearing officer shall address the following matters at the initial prehearing conference: (c) The independent impartial hearing officer shall identify the parties and their representatives, and obtain mailing addresses, fax numbers, and other contact and service information. If a party is represented by more than one (1) attorney, that party must designate one (1) attorney to serve as the lead attorney. Only the calendar of the lead attorney, and not multiple attorneys, need needs to be consulted for scheduling. (d) The independent impartial hearing officer shall advise the parties of their rights as set forth in section 7(d) and (e) 7(e) of this rule. (e) A party may seek an order compelling discovery. The independent impartial hearing officer shall not grant the order unless: (f) Whenever a prehearing conference is conducted, the independent impartial hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference. Sec. 7. (a) If the a due process hearing is requested by the a public agency: not later than forty-five (45) calendar days after the request is received by the parent. (b) If the a due process hearing is requested by a parent, the hearing shall be conducted, a final written decision reached, and a copy of the written decision is served electronically or mailed to each of the parties not later than forty-five (45) calendar days after: (c) An independent impartial hearing officer may grant specific extensions of time beyond the forty-five (45) day timeline at the request of either party. Any An extension of time granted by the independent impartial hearing officer shall be: (d) Any A party to a due process hearing has the right to the following: (e) A parent, or the parent's representative, involved in a due process hearing has the right to the following: (f) The independent An impartial hearing officer has the discretion and authority to do the following: (g) The party requesting the due process hearing may not raise issues at the hearing that were not raised in the due process hearing request unless the other party agrees otherwise. However, nothing in this rule shall be construed to preclude does not prohibit a party from filing a separate due process hearing request on an issue separate from the due process hearing already requested. (h) At least five (5) business days prior to before the hearing, each party shall disclose to all the other parties all the evaluations completed by that date and recommendations based on the offering party's evaluations that the party it intends to use at the hearing. A An impartial hearing officer may bar any prohibit a party that fails to comply with this subsection from introducing the relevant evaluation or recommendation at the hearing without consent of the other party. (i) The party requesting the due process hearing: (j) The independent impartial hearing officer shall render a written or, at the option of the parents, an electronic decision. The decision shall be dated and must include the following: (k) The decision of the independent impartial hearing officer shall be based solely upon on the oral and written evidence presented at the hearing. In addition, an independent impartial hearing officer's determination of whether a student received a free appropriate public education must be based on substantive grounds. In matters alleging a procedural violation, an independent impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies: (l) Nothing in Subsection (k) shall be construed to preclude does not prohibit an independent impartial hearing officer from ordering a public agency to comply with procedural requirements under this rule and 511 IAC 7-37. (m) The independent An impartial hearing officer shall serve the a decision electronically to parties in the electronic filing system. If a party is not accessing the electronic filing system, the independent impartial hearing officer shall mail a copy of the hearing decision via by certified mail, return receipt requested, to each party involved in the hearing. The independent impartial hearing officer's decision is a final order unless a petition for judicial review is filed as described in section 9 of this rule. (n) Any A party involved in a due process hearing shall have thirty (30) calendar days from after the date the independent impartial hearing officer's written decision is received to: (o) A verbatim transcript of the a hearing shall be made. The independent impartial hearing officer is responsible for: The transcript shall be made available by the division of special education at no cost and upon at the request of any party to the hearing at the conclusion of when the hearing ends. (p) Due process hearings under this section shall be: The notice of time and place shall be in writing to all parties. (q) The public agency shall bear all costs pertaining to the conduct of a hearing whether or not a hearing is ultimately held, including transcription and hearing officer fees and expenses. Funds under Part B of the Individuals with Disabilities Education Act (IDEA) may be used to pay the costs of conducting the hearing, but the funds shall not be used to pay attorney's fees or costs of a party. (r) Class action due process hearings are not permitted. If the parties and the independent impartial hearing officer agree to a hearing involving at least two (2) or more students, a separate decision with specific findings of fact, conclusions of law, and orders, if necessary, shall be written for each student. (s) If the issue of the proceedings involves initial enrollment in a public school, the student, with the consent of the parent, shall be placed in the public school program until the completion of the proceedings are finished. If the parties cannot agree to the student's placement during the proceedings, the independent impartial hearing officer shall determine the student's placement as a preliminary matter to the conduct of the due process hearing. (t) If the issue of the proceedings involves initial enrollment in a public school for a student who is transitioning from Part C of the Individuals with Disabilities Education Act to Part B of the act, IDEA, and the student is no longer eligible for Part C services because the student has become three (3) years of age, the public agency is not required to provide the Part C services that the child had been receiving. If: the: the public agency must provide those special education and related services that are not in dispute between the parent and the public agency. (u) Except as provided in 511 IAC 7-44-8, the a student shall remain in the student's current educational placement during a due process hearing or judicial proceeding unless the parties agree otherwise. If the: that advancement shall proceed unless normal grade advancement is at issue. If the last agreed upon placement cannot be determined, the independent impartial hearing officer shall determine the student's educational placement. (v) The division of special education shall maintain the following for the duration of during the hearing and any subsequent civil action: (w) The division of special education shall, after deleting personally identifiable information from copies of the due process hearing findings, conclusions, and orders, do the following: Sec. 8. (a) A person who may be appointed as an independent impartial hearing officer must meet the following requirements: (b) A person who otherwise qualifies as an independent impartial hearing officer is not considered an employee of the public agency solely because the person is paid by the public agency to serve as an independent impartial hearing officer. The division of special education shall maintain a current list of the persons who serve serving as independent impartial hearing officers, including information on the qualifications of those persons. Sec. 9. (a) Any A party disagreeing with the decision of the independent impartial hearing officer may file a petition for judicial review with a civil court with jurisdiction. Under IC 4-21.5-5-5, a petition for review by a state or federal civil court must be filed within thirty (30) calendar days after the date the independent impartial hearing officer's written decision is received by the party. The court shall: (b) Nothing in This article shall be construed to does not restrict or limit the rights, procedures, and remedies available under: except that but before the filing of a civil action under such those laws seeking relief that is also available under this article, the procedures under sections 3 through 8 of this rule and this section shall be exhausted to the same extent as would be required had the action been brought under this article. Sec. 10. (a) An expedited due process hearing will be conducted in the following situations: (b) An expedited due process hearing shall be is conducted under IC 4-21.5-3 and sections 3 through 8 of this rule, except that but: (c) An expedited due process hearing must be conducted by an independent impartial hearing officer who meets the requirements under section 8 of this rule. (d) Any A party who that disagrees with the independent impartial hearing officer's decision in an expedited due process hearing may file a petition for review of the decision in accordance with under section 9 of this rule. Sec. 11. (a) Independent Impartial hearing officers shall include a notice in their written decisions stating that an action for attorney's fees must be filed in a civil court with jurisdiction within thirty (30) calendar days after receipt of receiving the independent impartial hearing officer's final decision if no request for judicial review is filed in federal or state civil court. (b) A court, in its discretion, may award reasonable attorney's fees and related costs to: (c) Attorney's fees awarded shall be based on rates prevailing in the community in which where the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded. (d) Attorney's fees may not be awarded, and related costs may not be reimbursed, in any action or proceeding for services performed subsequent to the time of after a written offer of settlement offer is made to a parent if: (e) Notwithstanding Except as provided in subsection (d), a court may award attorney's fees and related costs to a parent who: (f) Attorney's fees may not be awarded relating to any a meeting of the CCC unless such the meeting is convened as a result of an administrative proceeding or a judicial action. A resolution meeting shall not be considered a meeting convened as a result of an administrative hearing or a judicial action. Attorney's fees may not be awarded for a mediation described in section 2 of this rule that is conducted prior to the filing of before the due process hearing is filed. (g) Unless a court finds that the department of education or the public agency unreasonably protracted the final resolution of the action or proceeding, or any other violation of this rule, a the court reduces, accordingly, the amount of attorney's fees awarded if the court finds any of the following: (h) A public agency may not use funds under Part B of the Individuals with Disabilities Education Act (IDEA) to pay attorney's fees or costs of a party related to an action or a procedure under the Individuals with Disabilities Education Act IDEA and this article. Sec. 4. (a) The An education scholarship student must be reevaluated at least once every three (3) years in accordance with under 511 IAC 7-40-8 to determine continued eligibility unless the public school and parent agree that reevaluation is not needed. When the parent of an eligible student or an emancipated eligible student applies for a renewal of the ESAs, the treasurer of state department of education shall provide notice of this requirement to the parent or student, and the student's school corporation of legal settlement, to ensure the student is aware that they must be reevaluated the CCC must consider reevaluation at least every three (3) years. (b) The parent of an eligible student or an emancipated eligible student shall provide to the SCOLS data on the student's progress toward the student's goals, any assessment data, and any other information from participating entity providers as part of the reevaluation process. (c) To the extent not inconsistent with Except as otherwise provided in this section, the reevaluation procedures of 511 IAC 7-40-8 must be followed. Consent of the parent of an eligible student or an emancipated eligible student is required before the student can be reevaluated. If consent is not provided, then given, the SCOLS cannot develop a new IEP ESA service plan for the education scholarship student. (d) The SCOLS shall convene the CCC to consider the results of the reevaluation. Data and information provided by the parent of an eligible student or an emancipated eligible student and any service provider shall also be considered by the CCC in determining continued eligibility and developing subsequent IEPs for eligible students. (e) The parent of an eligible student or an emancipated eligible student is encouraged to invite participating entities to participate in the CCC meeting to discuss the student's present levels of educational performance as the CCC develops measurable goals, identifies special education and related services, and testing accommodations required for the student. LSA Document #26-157 Documents Incorporated by Reference: None Received by Publisher Small Business Regulatory Coordinator: William Ottensmeyer, Staff Attorney, Indiana Department of Education, 100 North Senate Avenue, Indianapolis, IN 46204, (317) 232-7846, wottensmeyer1@doe.in.gov