Chapter 392-172 WAC
RULES FOR THE PROVISION OF SPECIAL EDUCATION TO SPECIAL EDUCATION
STUDENTS
GENERAL AUTHORITY AND
PURPOSE
STUDENT’S
RIGHTS-GENERAL
|
392-172-030 |
Students’ rights to special education
programs. |
STUDENTS-GENERAL-DEFINITIONS
|
392-172-035 |
Definitions of "free appropriate public education," "adult student,"
"special education student," "parent," and "public agency." |
|
392-172-040 |
Definitions of "evaluation," "reevaluation," "consent," "day" and
"native language." |
|
392-172-045 |
Definition of "special education" and other terms. |
|
392-172-055 |
Related services. |
|
392-172-065 |
Definition-Supplementary aids and services. |
|
392-172-070 |
Definition-Assistive technology device. |
|
392-172-073 |
Definition-Assistive technology service. |
|
392-172-075 |
Availability of assistive technology. |
STUDENT
SPECIFIC PROCEDURES
Identification
Evaluation
Procedures
Eligibility Criteria for
Students with Disabilities
|
392-172-114 |
Definition and eligibility criteria for developmentally
delayed. |
|
392-172-116 |
Areas of developmental delay-Definitions. |
|
392-172-118 |
Definition and eligibility for emotionally/behaviorally
disabled. |
|
392-172-120 |
Definition and eligibility for communication disordered |
|
392-172-122 |
Definition and eligibility for orthopedically impaired |
|
392-172-124 |
Definition and eligibility for health impaired. |
|
392-172-126 |
Definition and eligibility for specific learning disability. |
|
392-172-128 |
Specific learning disability-Evaluation procedures. |
|
392-172-130 |
Discrepancy tables for determining severe discrepancy under WAC 392-172-132. |
|
392-172-132 |
Method for documenting severe discrepancy. |
|
392-172-134 |
Definition and eligibility for mental retardation. |
|
392-172-136 |
Definition and eligibility for multiple disabilities. |
|
392-172-138 |
Definition and eligibility for deafness. |
|
392-172-140 |
Definition and eligibility criteria for hearing impairment. |
|
392-172-142 |
Definition and eligibility for visually impaired/blindness. |
|
392-172-144 |
Definition and eligibility for deaf/blindness. |
|
392-172-146 |
Definition and eligibility for autism. |
|
392-172-148 |
Definition and eligibility for traumatic brain injury. |
|
392-172-150 |
Independent educational evaluation. |
Individual Education
Program
|
392-172-153 |
IEP team members |
|
392-172-156 |
IEP meetings. |
|
392-172-15700 |
Parent and general education teacher participation in
meetings. |
|
392-172-15705 |
Parent involvement in placement decisions. |
|
392-172-158 |
Individualized education program-Implementation. |
|
392-172-159 |
Development, review, and revision of individualized education
program-consideration of special factors. |
|
392-172-160 |
Individualized education program. |
|
392-172-162 |
Physical education required. |
|
392-172-163 |
Extended school year services. |
|
392-172-164 |
Parent notice of individualized education program meeting-Transition
needs or services. |
|
392-172-166 |
Transition services, student participation. |
Service Delivery
Options
|
392-172-170 |
Initial service delivery-Parental consent for initial placement-Notice
required. |
|
392-172-172 |
Least restrictive environment. |
|
392-172-174 |
Continuum of alternative service delivery options. |
|
392-172-176 |
Transition to preschool program. |
|
392-172-180 |
Procedures for establishing educational
placement. |
Evaluation of
Progress-Reevaluation
SERVICE
DELIVERY STANDARDS
Staff Qualifications
|
392-172-200 |
Staff qualifications for special education funding. |
|
392-172-202 |
Emergency-Temporary out-of-endorsement
assignment. |
Program
Standards-Transportation-Facilities-Comparability
Home/Hospital Instruction
School District
Placements for Provision of FAPE
|
392-172-219 |
Applicability. |
|
392-172-220 |
Contractual services. |
|
392-172-222 |
Approval of nonpublic agencies. |
|
392-172-224 |
School district or other public agency responsibility when contracting
for the delivery of services in a public agency or approved nonpublic
agency. |
|
392-172-226 |
Residential educational services-Methods of
payment. |
Parental Placements for
Provision of FAPE
Students Enrolled in Private
Schools by Parent
Procedural
Safeguards
Notice
Requirements-General
Surrogate
Parents
Mediation
Citizen Complaint
Process
|
392-172-324 |
Definition-Complaint. |
|
392-172-326 |
Definition-Other subgrantee. |
|
392-172-328 |
Informing citizens about complaint procedures. |
|
392-172-329 |
Remedies for denial of appropriate services. |
|
392-172-330 |
Right to register a complaint. |
|
392-172-332 |
Contents of complaint. |
|
392-172-334 |
Procedure for filing a complaint. |
|
392-172-336 |
Designation of responsible employee. |
|
392-172-338 |
Investigation of and response to complaints against a school district
or other public agency, educational service district, or other subgrantee. |
|
392-172-342 |
Complaints against the superintendent of public instruction-Designation
of responsible employee(s). |
|
392-172-344 |
Complaints against the superintendent of public
instruction-Investigation of and response to complaints. |
|
392-172-348 |
Complaints and due process hearings. |
Hearings-General
Disciplinary
Exclusion
AVERSIVE
INTERVENTIONS-SAFEGUARDS
|
392-172-388 |
Aversive interventions. |
|
392-172-390 |
Aversive interventions-Definition. |
|
392-172-392 |
Aversive interventions-Prohibited forms. |
|
392-172-394 |
Aversive interventions-Other forms-Conditions. |
|
392-172-396 |
Aversive interventions-Individualized education program
requirements. |
Student
Records
STATE
PROCEDURES-REQUIREMENTS-STANDARDS
State Advisory Council
Methods of Ensuring
Services
Program
Monitoring-Funding-Fiscal Auditing
Private School
Requirements
|
392-172-520 |
Implementation by state of special education students placed or
referred by school districts or other public agencies. |
|
392-172-522 |
Students in public or private institutions. |
|
392-172-524 |
Technical assistance training and monitoring activities. |
|
392-172-526 |
State responsibility. |
Comprehensive System of
Personnel Development
Performance Goals and
Indicators
Participation in
Assessments and Reporting Results
Suspension and
Expulsion Rates
FUNDING PROCEDURES,
STANDARDS
School District Eligibility
School District Use of
Funds
|
392-172-600 |
School district or other public agency use of amounts. |
|
392-172-605 |
School district or other public agency use of federal funds for
preschool children. |
|
392-172-610 |
School district or other public agency maintenance of effort. |
|
392-172-615 |
School district or other public agency exceptions to maintenance of
effort. |
|
392-172-620 |
School district or other public agency-Treatment of federal funds in
certain fiscal years |
|
392-172-625 |
School-wide programs under Title I of the ESEA. |
|
392-172-630 |
School district or other public agency permissive use of
funds. |
|
392-172-635 |
School district or other public agency coordinated services
system. |
School-Based Improvement
Plan
DISPOSITION OF SECTIONS FORMERLY
CODIFIED IN THIS CHAPTER
392-172-060 Definition-Transition services. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-060, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-062 Definition of terms related to transition services.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-062, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-110 Communication disordered students-Evaluation.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-110, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-112 Medical evaluation. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-112, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-152 Summary analysis of evaluation data. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-152, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-154 School district or other public agency decision on
eligibility. [Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11),
§ 392-172-154, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-168 Required student participation-Transition.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-168, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-178 Preschool services. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-178, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-184 Reevaluation-Notice requirement. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-184, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-206 Facilities. [Statutory Authority: Chapter 28A.155
RCW. 95-21-055 (Order 95-11), § 392-172-206, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-214 Administration of medication. [Statutory Authority:
Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-214, filed 10/11/95,
effective 11/11/95.] Repealed by 99-24-137, filed
12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070
and 20 U.S.C. 1400 et seq.
392-172-216 Choice and running start programs. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-216, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-228 Out-of-state agencies. [Statutory Authority:
Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-228, filed 10/11/95,
effective 11/11/95.] Repealed by 99-24-137, filed
12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070
and 20 U.S.C. 1400 et seq.
392-172-234 School district or other public agency
responsibility for private school special education students. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-234, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-236 Determination of needs, numbers of students and
types of services. [Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-236, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-320 Authority. [Statutory Authority: Chapter 28A.155
RCW. 95-21-055 (Order 95-11), § 392-172-320, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-322 Purpose. [Statutory Authority: Chapter 28A.155 RCW.
95-21-055 (Order 95-11), § 392-172-322, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-340 Complainant right to appeal. [Statutory Authority:
Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-340, filed 10/11/95,
effective 11/11/95.] Repealed by 99-24-137, filed
12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070
and 20 U.S.C. 1400 et seq.
392-172-346 Appeal to the secretary of education in complaints
against the superintendent of public instruction. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-346, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-358 Prospective application to amendments in
Washington Administrative Code affecting hearings. [Statutory Authority:
Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-358, filed 10/11/95,
effective 11/11/95.] Repealed by 99-24-137, filed
12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070
and 20 U.S.C. 1400 et seq.
392-172-372 Disciplinary exclusion-Procedures, continuing
district or other public agency responsibility. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-372, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-374 Disciplinary exclusion-Determination of disability
relatedness and/or appropriateness of program. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-374, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-376 Disciplinary exclusion-Definition significant
change of placement. [Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-376, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-378 Disciplinary exclusion-Determination of what
constitutes a pattern of exclusion. [Statutory Authority: Chapter 28A.155 RCW.
95-21-055 (Order 95-11), § 392-172-378, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-380 Emergency exclusion-Dangerous students. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-380, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-382 Disciplinary exclusion-Bringing a firearm to
school. [Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-382, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-398 Aversive therapy-Parent complaint process.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-398, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-554 Scope of system. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-554, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-556 Establishment of a comprehensive system of
personnel development advisory committee. [Statutory Authority: Chapter 28A.155
RCW. 95-21-055 (Order 95-11), § 392-172-556, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-558 Annual needs assessment. [Statutory Authority:
Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-558, filed 10/11/95,
effective 11/11/95.] Repealed by 99-24-137, filed
12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070
and 20 U.S.C. 1400 et seq.
392-172-560 Data system on personnel and personnel development.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-560, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-562 Other sources of annual needs assessment data.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-562, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-564 Report of current and projected personnel needs.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-564, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
392-172-566 Administration of continuing education. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-566, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-568 Personnel development plan. [Statutory Authority:
Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-568, filed 10/11/95,
effective 11/11/95.] Repealed by 99-24-137, filed
12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070
and 20 U.S.C. 1400 et seq.
392-172-570 Provision of technical assistance. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-570, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-592 Records related to grant funds. [Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-592, filed
10/11/95, effective 11/11/95.] Repealed by 99-24-137,
filed 12/1/99, effective 1/1/00. Statutory Authority: RCW 28A.155.090(7),
28A.300.070 and 20 U.S.C. 1400 et seq.
392-172-594 Program coordination. [Statutory Authority: Chapter
28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-594, filed 10/11/95, effective
11/11/95.] Repealed by 99-24-137, filed 12/1/99,
effective 1/1/00. Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq.
GENERAL AUTHORITY AND PURPOSE
WAC 392-172-010 Authority. The
state authority for this chapter is RCW 28A.155.090(7). This authority enables
the superintendent of public instruction to promulgate rules and regulations to
implement chapter 28A.155 RCW. This authority is supplemented by RCW 28A.300.070
which authorizes the superintendent of public instruction to receive federal
funds in accordance with the provisions of federal law. Federal authority for
this chapter is 20 USC 1400 et seq., the Individuals with Disabilities Education
Act.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-010, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-010, filed 10/11/95, effective 11/11/95.]
WAC 392-172-020 Purposes. (1)
The purposes of this chapter are to:
(a) Implement chapter 28A.155 RCW consistent with the Individuals with
Disabilities Education Act, 20 United States Code section 1400 et seq.;
(b) Ensure that all special education students as defined in this chapter
have available a free appropriate public education (FAPE) that emphasizes
special education and related services designed to meet their unique needs and
prepare them for employment and independent living;
(c) Ensure that the rights of special education students and their parents
are protected;
(d) Assist school districts and other public agencies to provide special
education and related services; and
(e) Assess and ensure effectiveness of the public agencies responsible for
providing special education pursuant to chapter 28A.155 RCW, including state
residential school programs which are established and operated pursuant to RCW
28A.190.020 et seq., RCW 13.04.145 and chapter 72.40 RCW.
(2) School districts and other public agencies must be
aware that there are additional federal and state civil rights regulations (29
US Code 764, RCW 49.60.030, 43 USC 12101 et seq.) that apply to students who
have a disability regardless of the student’s eligibility for special education
and related services. If a student has a physical, sensory, or mental impairment
which substantially limits one or more major life activities, the district or
other public agency has an obligation to provide that student appropriate
educational services. Such services must be designed to meet the needs of the
student with a disability to the same extent the needs of students without
disabilities are met. A school district and other public agency’s obligation to
provide appropriate educational services to meet the needs of a student who has
a disability exists separate and apart from the obligation to provide a free
appropriate public education to a student who qualifies for special education
and any necessary related services under these regulations.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-020, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-020, filed 10/11/95, effective 11/11/95.]
STUDENT’S RIGHTS-GENERAL
WAC 392-172-030 Students’
rights to special education programs. (1) Each school district or other
public agency shall provide every special education student between the age of
three and twenty-one years, a free appropriate public education program,
including special education for students who have been suspended or expelled
from school. A free appropriate public education is also available to any
eligible student even though the student is advancing from grade to grade. The
right to special education for eligible students commences on their third
birthday with an individualized education program (IEP) in effect by that date.
If an eligible student’s third birthday occurs during the summer, the student’s
individualized education program team shall determine the date when services
under the individualized education program will begin.
(2) School districts or other public agencies may provide special education
and related services to students with a disability who meet the eligibility
criteria under WAC 392-172-114(1) in
the birth through two years age group. If a school district or other public
agency provides an education to any student who is not disabled in the birth
through two years age group, the district or other public agency shall make any
required special education and related services available pursuant to this
chapter to all its special education students of the same age.
(3) Any student referred for special education and related services shall
qualify pursuant to eligibility criteria set forth in this chapter.
(4) A special education student shall remain eligible for special education
and any necessary related services until one of the following occurs:
(a) A group of qualified professionals and the parent of the student, based
on a reevaluation determines the student is no longer in need of special
education; (In this case, while a disability may continue, and individual
accommodations in the general education classroom may be necessary for
educational benefit, such services would not represent special education
services as defined in this chapter.) or
(b) The special education student has met high school graduation requirements
established by the school district or other public agency pursuant to rules of
the state board of education, and the student has graduated from high school
with a regular high school diploma. Graduation from high school with a regular
diploma constitutes a change in placement, requiring written prior notice in
accordance with WAC 392-172-302;
or
(c) The special education student has reached age twenty-one. The student
whose twenty-first birthday occurs on or before August 31 would no longer be
eligible for special education. The student whose twenty-first birthday occurs
after August 31, shall continue to be eligible for special education and any
necessary related services for the remainder of the school year.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-030, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-030, filed 10/11/95, effective 11/11/95.]
STUDENTS-GENERAL-DEFINITIONS
WAC 392-172-035 Definitions of
"free appropriate public education," "adult student," "special education
student," "parent," and "public agency." As used in this chapter:
(1) "Free appropriate public education" or FAPE means special education and
related services which:
(a) Are provided at public expense, under local school district or other
public agency supervision and direction, and without charge to parents;
(b) Meet the standards of the state educational agency and the state board of
education, including the requirements of this chapter;
(c) Include preschool, elementary school, or secondary school education in
the state; and
(d) Are provided in conformance with individualized education program (IEP)
requirements of this chapter.
(2) "Special education student"
means:
(a) Any student, enrolled in school or not, (i) who has been identified as
having a disability, (ii) whose disability adversely affects the student’s
educational performance, (iii) and whose unique needs cannot be addressed
exclusively through education in general education classes with or without
individual accommodations and is determined to be eligible for special education
services; or
(b) A student under the age of twenty-one who resides in a residential school
serving students with a disability in accordance with RCW 28A.190.020 et seq.,
13.04.145 and chapter 72.40 RCW; who also qualifies pursuant to (a) of this
subsection.
(3) If it is determined through an appropriate evaluation
that a student has one of the disabilities identified in WAC 392-172-114 through 392-172-148, but only needs a related
service and not specially designed instruction, the student is not a special
education student under this chapter.
(4) "Adult student" means a special education student who is eighteen years
of age or older and who has not been judged incapacitated by a court of law. A
student shall assume and be entitled to exercise all rights, duties and
responsibilities otherwise granted to parents by this chapter upon attaining the
age of eighteen consistent with WAC
392-172-309. The adult student shall retain and be entitled to exercise the
same until he or she has been judged incapable of exercising these rights by a
court of law.
(5) "Parent" means a natural or adoptive parent, a
guardian, an adult person acting as a parent, or a surrogate parent who has been
appointed in accordance with WAC
392-172-308. The term includes a person acting in the place of a parent,
such as a grandparent or stepparent with whom a special education student lives,
as well as persons who are legally responsible for the student’s welfare. The
term does not include the state if the special education student is a ward of
the state. It does include a foster parent if appointed as a surrogate
parent.
(6) As used in this chapter, "public agency" means:
(a) Each public school district in the state;
(b) Each educational service district that provides special education or
related services to one or more students with a disability;
(c) Each state operated program; and
(d) Each public organization or entity, including other political
subdivisions of the state providing special education and/or related services to
one or more special education students
regardless of whether the organization or entity receives funds under the
Individuals with Disabilities Education Act.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-035, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-035, filed 10/11/95, effective 11/11/95.]
WAC 392-172-040 Definitions of
"evaluation," "reevaluation," "consent," "day" and "native language." As
used in this chapter:
(1) "Evaluation" means procedures used to determine:
(a) Whether a student is disabled;
(b) Whether the disability adversely affects educational performance; and
(c) The nature and extent of the student’s need for specially designed
instruction and any necessary related services.
(2) "Reevaluation" means procedures used to determine the special education
student’s continuing eligibility and need for special education and related
services consistent with WAC
392-172-182 through 392-172-190.
Reevaluation shall also be used to determine the appropriateness of the services
being provided to the special education student.
(3) "Consent" means that the parent or adult student:
(a) Has been fully informed of all information relevant to the activity for
which consent is sought in his or her native language or other mode of
communication;
(b) Understands and agrees in writing to the activity for which consent is
sought, and the consent describes the activity and lists any records which will
be released and to whom; and
(c) Understands that the granting of consent is voluntary and may be revoked
at any time.
If a parent revokes consent, that revocation is not retroactive (it does not
negate an action that has occurred after the consent was given and before the
consent was revoked).
(4) "Day" means calendar day unless otherwise indicated as business day or
school day. Business day means Monday through Friday, except for federal and
state holidays, unless those holidays are specifically included in the
designation of a business day in this chapter. School day means any day,
including a partial day, that students are in attendance at school for
instructional purposes.
(5) "Native language" means:
(a) For an individual of limited English proficiency, the language normally
used by that individual, or in the case of a student, the language normally used
by the parents of the student. In all direct contact with a student, including
evaluation, native language means the language normally used by the child in the
home or learning environment.
(b) For an individual with deafness or blindness, or for an individual with
no written language, the mode of communication is that normally used by the
individual (such as sign language, braille, or oral communication).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-040, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-040, filed 10/11/95, effective 11/11/95.]
WAC 392-172-045 Definition of
"special education" and other terms. (1) As used in this chapter "special
education" means specially designed instruction provided to an eligible student
as defined in WAC 392-172-035 (2) and
(3). Specially designed instruction
as defined in subsection (4)(a) of this section shall be provided at no cost to
the parents, in conformance with the student’s IEP, and designed to meet the
unique needs of the student. Specially designed instruction includes instruction
conducted in the classrooms, in the home, in hospitals and institutions, and in
other settings; and instruction in physical education.
(2) The term does not include individual accommodations within general
education that alone would be sufficient and effective to meet the learning
needs of the student; nor does it include the educational services necessary to
meet the needs of those students identified under WAC 392-172-020(2).
(3) Travel training, vocational training, speech and language services,
physical and occupational therapy, orientation and mobility instruction,
behavioral intervention instruction, transition services, and audiological
services are considered special education under this chapter if they are
provided as specially designed instruction as defined in subsection (4) of this
section. They are considered related services under WAC 392-172-055 if they are required to
assist a special education student to benefit from special education, and not
provided as specially designed instruction.
(4) The terms used in this section are defined as follows:
(a) "Specially designed instruction" means organized and
planned instructional activities which adapt, as appropriate, to the needs of
eligible students under this chapter, the content, methodology or delivery of
instruction:
(i) To address the unique needs that result from the student’s
disability;
(ii) To ensure access of the student to the general curriculum so that the
student can meet the educational standards of the school district or other
public agency that apply to all students; and
(iii) Be provided by appropriately qualified special
education certificated staff, or designed and supervised by this staff and
carried out by general education certificated personnel or trained classified
staff pursuant to a properly formulated IEP consistent with WAC 392-172-160 (1)(c), so that the
needs of the student and services provided to the student will be clear to the
parents and other IEP service providers. Student progress must be monitored and
evaluated by special education certificated staff.
(b) "At no cost" means that all specially designed instruction is provided
without charge, but does not preclude incidental fees that are normally charged
to nondisabled students or their parents as part of the general education
program.
(c) "Audiology" means the provision of habilitative instruction related to a
hearing impairment.
(d) "Behavioral intervention instruction" means providing instruction which
addresses student behavior that impedes involvement and/or progress in the
general curriculum.
(e) "Occupational therapy" is instruction designed to improve, develop or
restore functions impaired or lost through illness, injury, or deprivation, or
improve ability to perform tasks for independent function if functions are
impaired or lost.
(f) "Orientation and mobility instruction" means the provision of
training/instruction in orientation and mobility for students who are visually
impaired, including travel training.
(g) "Physical education" means:
(i) The development of physical and motor fitness; fundamental motor skills
and patterns; and skills in aquatics, dance, and individual and group games and
sport (including intramural and lifetime sports); and
(ii) Special physical education, adapted physical education, movement
education, and motor development.
(h) "Physical therapy" means developing or restoring motor function and
maintaining appropriate performance commensurate with the student’s unique
needs.
(i) "Speech and language services" means the provision of instruction for the
habilitation of communication disorders.
(j) "Transition services" means a coordinated set of activities for a special
education student that:
(i) Is designed within an outcome-oriented process that promotes movement
from school to post-school activities, including postsecondary education,
vocational training, integrated employment (including supported employment),
continuing and adult education, adult services, independent living, or community
participation;
(ii) Is based on the individual student’s needs, taking into account the
student’s preferences and interests; and
(iii) Includes:
(A) Specially designed instruction;
(B) Related services;
(C) Community experiences;
(D) The development of employment and other post-school adult living
objectives; and
(E) If appropriate, acquisition of daily living skills and functional
vocational evaluation.
(k) "Travel training" means providing instruction, as appropriate, to
students with significant cognitive disabilities, and other eligible students
with disabilities who require this instruction, to enable them to:
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from place to
place within that environment (e.g., in the school, in the home, at work, and in
the community).
(l) "Vocational education" means organized educational programs that are
directly related to the preparation of individuals for paid or unpaid
employment, or for additional preparation for a career requiring other than a
baccalaureate or advanced degree.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-045, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-045, filed 10/11/95, effective 11/11/95.]
WAC 392-172-055 Related
services. (1) As used in this chapter, the term "related services" means
transportation and such developmental, corrective, preventative and other
supportive services as are required to assist a special education student to
benefit from special education.
Related services include classified staff services, counseling services,
early identification and evaluation of disabilities in students, medical
services, parent counseling and training, psychological services, recreation,
rehabilitation counseling services, school health services, social work services
in schools, and transportation.
The list of related services is not exhaustive and may include other
developmental, corrective, preventative or supportive services, if they are
required to assist a special education student to benefit from special
education.
(2) The terms used in the definition of "related services" are defined as
follows:
(a) "Classified staff services" includes:
(i) Services provided by classified staff which provide for the student’s
safety, personal care, and instructional assistance; and
(ii) Services provided to certificated staff by classified staff which
provide assistance for special education students to achieve placement in the
least restrictive environment.
(b) "Counseling services" means services provided by qualified social
workers, psychologists, guidance counselors, or other qualified personnel.
"Counseling services" also includes counseling and guidance of parents, children
and teachers by audiologists regarding hearing loss and by speech pathologists
regarding speech and language impairment.
(c) "Early identification and evaluation of disabilities in students" means
the implementation of a formal plan for identifying a disability as early as
possible in a student’s life.
(d) "Medical services" means diagnostic and evaluation services provided by a
licensed physician to determine a student’s medically related disabling
condition which may result in the student’s need for special education and
related services.
(e) "Parent counseling and training" means assisting parents in understanding
the special needs of their child, providing parents with information about child
development, and helping parents to acquire the necessary skills that will allow
them to support the implementation of their student’s IEP.
(f) "Psychological services" includes:
(i) Administering psychological and educational tests, and other evaluation
procedures;
(ii) Interpreting evaluation results;
(iii) Obtaining, integrating, and interpreting information about the
student’s behavior and conditions relating to learning;
(iv) Consulting with other staff members in planning school programs to meet
the special needs of students as indicated by psychological tests, interviews,
and behavioral evaluations;
(v) Planning and managing a program of psychological services, including
psychological counseling for students and parents; and
(vi) Assisting in developing positive behavioral intervention strategies.
(g) "Recreation" includes:
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in school and community agencies; and
(iv) Leisure education.
(h) "Rehabilitation counseling services" means services provided by qualified
personnel in individual or group sessions that focus specifically on career
development, employment preparation, achieving independence, and integration in
the workplace and community of a special education student. The term also
includes vocational rehabilitation services provided to special education
students by vocational rehabilitation programs funded under the Rehabilitation
Act of 1973, as amended.
(i) "School health services" means nursing or other health services provided
to a special education student by a qualified school nurse, registered nurse,
licensed practical nurse or other persons qualified or appropriately trained to
provide the services in the student’s educational setting.
(j) "Social work services in schools" include:
(i) Preparing a social or developmental history on a special education
student;
(ii) Group and individual counseling with the student and family;
(iii) Working in partnership with parents and others on those problems in a
student’s living situation (home, school, and/or community) that affect the
student’s adjustment in school;
(iv) Mobilizing school and community resources to enable the student to
benefit from his or her educational program; and
(v) Assisting in developing positive behavioral intervention strategies.
(k) "Transportation" includes:
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses, lifts, and
ramps), if required to provide special transportation for a special education
student.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-055, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-055, filed 10/11/95, effective 11/11/95.]
WAC 392-172-065 Definition-Supplementary
aids and services. As used in this chapter, the term "supplementary aids and
services" means aids, services, and other supports that are provided in general
education classes or other education-related settings to enable special
education students to be educated with nondisabled students to the maximum
extent appropriate in accordance with the least restrictive environment
requirements in WAC 392-172-172.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et
seq. 99-24-137, § 392-172-065, filed 12/1/99, effective 1/1/00. Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-065, filed
10/11/95, effective 11/11/95.]
WAC 392-172-070 Definition-Assistive
technology device. The term "assistive technology device" means any item,
piece of equipment, or product system-whether acquired commercially off the
shelf, modified, or customized-that is used to increase, maintain, or improve
the functional capabilities of special education students.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et
seq. 99-24-137, § 392-172-070, filed 12/1/99, effective 1/1/00. Statutory
Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), § 392-172-070, filed
10/11/95, effective 11/11/95.]
WAC 392-172-073 Definition-Assistive
technology service. The term "assistive technology service" means any
service that directly assists a special education student in the selection,
acquisition, or use of an assistive technology device. The term includes:
(1) The evaluation of the needs of a special education student, including a
functional evaluation of the student in the student’s customary environment;
(2) Purchasing, leasing, or otherwise providing for the acquisition of
assistive technology devices by special education students;
(3) Selecting, designing, fitting, customizing, adapting, applying,
retaining, repairing, or replacing assistive technology devices;
(4) Coordinating and using other therapies, interventions, or services with
assistive technology devices, such as those associated with existing education
and rehabilitation plans and programs;
(5) Training or technical assistance for a special education student, or if
appropriate, the student’s family; and
(6) Training or technical assistance for professionals (including individuals
providing education and rehabilitation services), employers, or other
individuals who provide services to, employ or are otherwise substantially
involved in the major life functions of special education students.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-073, filed 12/1/99, effective
1/1/00.]
WAC 392-172-075 Availability of
assistive technology. Each public agency shall ensure that assistive
technology devices or assistive technology services, or both, are made available
to a special education student if required as part of the student’s:
(1) Special education;
(2) Related services; or
(3) Supplementary aids and services.
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.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-075, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-075, filed 10/11/95, effective 11/11/95.]
STUDENT SPECIFIC
PROCEDURES
Identification
WAC 392-172-100 Child find.
(1) The local district or other public agency shall conduct child find
activities that apply to students ages birth through twenty-one for the purpose
of locating, evaluating and identifying students with a suspected disability,
regardless of the severity of their disability, who are residing within the
boundaries of the district or other public agency and who are not currently
receiving special education and related services.
These activities shall extend to students attending private schools,
including religious schools. The activities undertaken to carry out child find
in private schools shall be:
(a) Comparable to activities undertaken in public schools; and
(b) Developed in consultation with appropriate representatives of private
school students on how to carry out the activities described in this
section.
(2) Child find activities must be calculated to reach:
(a) Highly mobile students with disabilities, such as homeless and migrant
students; and
(b) Students who are suspected of being a student with a disability and in
need of special education, even though they are advancing from grade to
grade.
(3) The local school district, or other public agency shall have policies and
procedures in effect that describe the methods it uses to conduct child find
activities in accordance with subsections (1) and (2) of this section. Methods
used may include but are not limited to: Written notification to all parents of
students in the district’s or other public agency’s jurisdiction regarding
access to and the use of its child find system; posting notices in school
buildings and other public areas describing the availability of special
education programs; offering preschool developmental screening; conducting local
media informational campaigns; coordinating distribution of information with
other child find programs within public and nonpublic agencies; screening
district-wide test results; inservice education to staff; and other methods
developed by the school district to identify, locate and evaluate students. Such
methods may also include a systematic, intervention based, process within
general education for determining the need for a special education referral.
(4) The collection and use of data to meet the requirements of this section
are subject to the confidentiality requirements in WAC 392-172-400 through 392-172-426.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-100, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-100, filed 10/11/95, effective 11/11/95.]
Evaluation Procedures
WAC 392-172-102 Referrals. A
referral of a student suspected of having a disability may be initiated by any
source, in writing (or verbally, if the individual is unable to write) including
but not limited to parents, medical personnel, school district or other public
agency personnel, community agencies, civil authorities, through district
screening procedures, and by other interested persons.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-102, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-102, filed 10/11/95, effective 11/11/95.]
WAC 392-172-104 Referral
procedures-Time line. (1) When a student suspected of having a disability is
brought to the attention of school personnel under WAC 392-172-102, the school district or
other public agency must document the referral and:
(a) Provide the student’s parent(s) or the adult student written notice that
the student has been referred because of a suspected disabling condition and
that the district or other public agency, with parental input, will determine
whether or not there is good reason to believe that the student is a candidate
for evaluation;
(b) Review the referral;
(c) Collect and examine existing school, medical and other records in the
possession of the parent, school district or other public agency; and
(d) Within twenty-five school days after receipt of the referral, make a
determination whether or not the student is a candidate for evaluation. This
decision shall be recorded in writing and shall set forth the date and the names
of the persons making the decision. The superintendent or designee shall direct
a notice to the student’s parent(s) or the adult student that complies with the
requirements of WAC 392-172-302.
(2) When the student is a candidate for evaluation, the
school district or other public agency shall obtain consent, fully evaluate the
student and arrive at a decision pursuant to WAC 392-172-111 within:
(a) Thirty-five school days after the date written consent for an evaluation
has been provided by the parent(s) or the adult student; or
(b) Thirty-five school days after the date the refusal of the parent(s) or
the adult student to grant consent has been overridden pursuant to a hearing (or
appeal) in accordance with WAC
392-172-350 et seq.; or
(c) Such other time period as may be agreed to by the parent(s) or the adult
student and documented by school authorities, including specifying the reasons
for extending the time line.
(3) If determined eligible under this chapter, a meeting will be held
consistent with WAC 392-172-156, to
develop an IEP, and special education and any necessary related services will be
made available to the student in accordance with this chapter.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-104, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-104, filed 10/11/95, effective 11/11/95.]
WAC 392-172-105 Parent
participation in meetings and notice. (1) Parents shall be afforded an
opportunity to participate in meetings with respect to the identification,
evaluation, educational placement and provision of a free appropriate public
education to the student.
(2) Each public agency shall notify parents consistent with WAC 392-172-15700
(1)(a) and (2) to ensure that parents have the
opportunity to participate in meetings described in this section.
(3) A meeting does not include informal or unscheduled conversations
involving public agency personnel and conversations on issues such as teaching
methodology, lesson plans, or coordination of service provision if those issues
are not addressed in the student’s IEP. A meeting also does not include
preparatory activities that public agency personnel engage in to develop a
proposal or response to a parent proposal that will be discussed at a later
meeting.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-105, filed 12/1/99, effective
1/1/00.]
WAC 392-172-106 General areas of
evaluation. (1) The evaluation of a student shall be in all areas related to
the suspected disability, including, if appropriate, health, vision, hearing,
social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities.
(2) The evaluation shall be sufficiently comprehensive to identify all of the
student’s special education and any necessary related services needs, whether or
not commonly linked to the disability category in which the student has been
classified.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-106, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-106, filed 10/11/95, effective 11/11/95.]
WAC 392-172-108 Evaluation
procedures. The evaluation or reevaluation of a special education student or
any student being considered for special education services shall be performed
using the procedures established in this chapter. Each school district or other
public
agency shall establish and implement evaluation procedures which meet the
requirements of this chapter.
(1) Before the initial provision of special education and any necessary
related services, a full and individual initial evaluation of the student’s
educational needs must be conducted.
(2)(a) The evaluation of a student with a suspected
disability will be conducted by a group of qualified professionals selected by
the district or other public agency and knowledgeable about the student and the
suspected areas of disabilities.
(b) For a student suspected of having a learning
disability, the determination of whether the student is eligible under this
chapter shall be made by child’s parent(s) and a group of qualified
professionals which must include:
(i) The student’s general education classroom teacher; or
(ii) If the child does not have a general education classroom teacher, a
general education classroom teacher qualified to teach a child of his or her
age; or
(iii) For a child of less than school age, an individual qualified to teach a
child of his or her age; and
(iv) At least one individual qualified to conduct individual diagnostic
examinations of children, such as school psychologist, speech language
pathologist, or remedial reading teacher.
(3) Each professional member of the evaluation group shall be licensed,
registered, credentialed, or certificated according to his or her professional
standards in accordance with state statutes and rules.
(4) A variety of assessment tools and strategies shall be used to gather
relevant functional and developmental information about the student, including
information provided by the parents, and information related to enabling the
student to be involved in and progress in the general curriculum (or for a
preschool child, to participate in appropriate activities), that may assist in
determining:
(a) Whether the student is a special education student consistent with WAC 392-172-035(2); and
(b) The content of the student’s individualized education program.
(5) No single procedure shall be the sole criterion for determining a
student’s eligibility or disabling condition and/or for determining the
appropriate educational program for a student.
(6) Tests and other evaluation materials, used for the purpose of
identification, special education needs, related services needs, and placement
shall be selected and administered so as not to be racially or culturally
discriminatory.
(7) Materials and procedures used to assess a student with limited English
proficiency shall be selected and administered to ensure that they measure the
extent to which the student has a disability and needs special education, rather
than measuring the student’s English language skills.
(8) Any standardized tests and other evaluation materials
that are given to a student shall have been validated for the specific purpose
for which they are used and shall accurately reflect whatever factors the tests
are designed to measure. If properly validated tests are unavailable, each
member of the group shall use professional judgment to determine eligibility for
special education based on other evidence of the existence of a disability and
need for special education. This professional judgment shall be documented in
the evaluation report. If an assessment is not conducted under standard
conditions, a description of the extent to which it varied from standard
conditions (e.g., the qualifications of the person administering the test, or
the method of test administration) must be included in the evaluation
report.
(9) All tests and other evaluation materials shall be administered by trained
and knowledgeable personnel in conformance with the instructions of the test
producer.
(10) Tests and other evaluation materials shall be provided and administered
in a student’s native language or other mode of communication, unless it is
clearly not feasible to do so. Tests shall be selected and administered so as to
ensure that, when a test is administered to a student with impaired sensory,
manual, or speaking skills, the test results accurately reflect the student’s
aptitude or achievement level or whatever other factors the test is designed to
measure, rather than reflecting the student’s impaired sensory, manual, or
speaking skills (except where those skills are the factors the test is intended
to measure). Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those that are designed
to provide a single general intelligence quotient.
(11) Each school district or other public agency shall use technically sound
instruments that may assess the relative contribution of cognitive and
behavioral factors, in addition to physical or developmental factors.
(12) Each school district or other public agency shall use assessment tools
and strategies that provide relevant information that directly assist persons in
determining the educational needs of the student.
(13)(a) Medical evaluations at the expense of a school
district or other public agency shall be obtained if:
(i) The group described in WAC
392-172-108(2) suspects a student of having a health problem which may
affect his or her eligibility and need for special education and any necessary
related services; and
(ii) In accordance with criteria established by the school district or other
public agency.
(b) Medical evaluation services necessary to make a determination of the
educational needs of residential school students, shall be the responsibility of
the department of social and health services pursuant to RCW 28A.190.040. The
state schools for the deaf and blind are responsible for the provision of these
services under chapter 72.40 RCW.
(14) An evaluation report and documentation of
determination of eligibility shall be developed consistent with the requirements
of WAC 392-172-10905 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-108, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-108, filed 10/11/95, effective 11/11/95.]
WAC 392-172-10900 Determination
of needed evaluation data. (1) As part of an evaluation, a group that
includes the individuals described in WAC
392-172-153, and other qualified professionals, as appropriate, shall:
Review existing evaluation data on the student, including:
(a) Evaluations and information provided by the parents of the student;
(b) Current classroom-based assessment and observations; and
(c) Observations by teachers and related services providers.
(2) Based on the above review and input from the student’s parents, identify
what additional data, if any, are needed to determine:
(a) Whether the student has a particular category of disability as described
in this chapter;
(b) The present levels of performance and educational needs of the student;
and
(c) Whether the student needs special education and related services.
(3) The public agency shall administer tests and any other evaluation
materials, pursuant to WAC 392-172-108 as may be needed to produce the data
required to make the determinations listed in subsection (2) of this
section.
(4) The group described in subsection (1) of this section may conduct its
review without a meeting. If the school district or other public agency conducts
a meeting for the purposes under this section, parents must have an opportunity
to participate in the meeting consistent with WAC 392-172-105.
(5) If no additional data are needed to make the determination listed in
subsection (2) of this section, the public agency shall notify the student’s
parents of this fact and the reasons for this decision, consistent with WAC 392-172-302.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-10900, filed 12/1/99, effective
1/1/00.]
WAC 392-172-10905 Evaluation
report and documentation of determination of eligibility. (1) In
interpreting evaluation data for the purpose of determining if a student is a
special education student under this chapter, and the educational needs of the
student, each public agency shall:
(a) Draw upon information from a variety of sources, including aptitude and
achievement tests, parent input, teacher recommendations, physical condition,
social or cultural background, and adaptive behavior; and
(b) Ensure that information obtained from all of these sources is documented
and carefully considered.
(2) A student may not be determined to be a special education student if the
determinant factor for that decision is:
(a) Lack of instruction in reading or math; or
(b) Limited English proficiency; and
(c) The student does not otherwise meet the eligibility criteria in this
chapter.
(3) An evaluation report shall be sufficient in scope to
develop an IEP consistent with WAC
392-172-160 through 392-172-164
and, at a minimum, must include:
(a) A statement of whether the student has a disability that meets the
eligibility criteria in this chapter;
(b) How the student’s disability affects the student’s involvement and
progress in the general curriculum or for preschool children, in appropriate
activities;
(c) The recommended special education and related services needed by the
student including specially designed instruction;
(d) Other information, as determined through the evaluation process and
parental input, needed to develop an IEP;
(e) A statement that the student was evaluated in accordance with the
evaluation procedures in WAC
392-172-108; and
(f) The date and signature of each professional member of the group
certifying that the evaluation report represents his or her conclusion. If the
evaluation report does not reflect his or her conclusion, the professional
member of the group must include a separate statement representing his or her
conclusions.
(4) For a student suspected of having a learning
disability, the evaluation report must be signed by all members of the
evaluation group in WAC 392-172-108
(2)(b) and must also include a statement of:
(a) All of the information required in subsection (1) of this section and the
information required in WAC
392-172-132;
(b) The specific learning disability(ies);
(c) The basis for making the determination;
(d) The relevant behavior noted during the observation of the student;
(e) The relationship of that behavior to the student’s academic
functioning;
(f) The medically relevant findings, if any;
(g) A statement about whether there is a severe discrepancy between
achievement and ability that is not correctable without special education and
related services; and
(h) The determination of the group concerning the effects of environmental,
cultural, or economic disadvantage.
(5) Each professional member of the group who contributed to the evaluation
report shall document the results of their individual assessments. This
documentation must include:
(a) The procedures and instruments used in any assessment and the results
obtained;
(b) Any conclusions from observations of the student; and
(c) A statement of the apparent significance of the findings as related to
the student’s suspected disability(ies) and instructional program.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-10905, filed 12/1/99, effective
1/1/00.]
WAC 392-172-111 Determination of
eligibility and parental notification. (1) Upon completing the
administration of tests and other evaluation materials:
(a) Consistent with WAC 392-172-105
and 392-172-15705, a group of
qualified professionals and the parent of the student shall determine whether
the student is a special education student in need of special education and any
necessary related services, as defined in this chapter; and
(b) The public agency must provide a copy of the evaluation report and the
documentation of determination of eligibility to the parent.
(2) If a determination is made that a student has a disability and needs
special education and related services, an IEP must be developed for the student
in accordance with this chapter.
(3) If the decision is that the student is not eligible for special
education, the parent(s) of the student shall be informed in writing of the
evaluation findings in compliance with the notice requirements of WAC
392-172-302, within ten school days following the completion of the
evaluation.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-111, filed 12/1/99, effective
1/1/00.]
Eligibility Criteria for Students with
Disabilities
WAC 392-172-114 Definition and
eligibility criteria for developmentally delayed. Definition and eligibility
criteria for developmentally delayed are as follows:
(1) As used in this chapter, the term "developmentally delayed, birth to
three years" shall mean those children under three years of age who:
(a) Demonstrate a 1.5 standard deviation or twenty-five percent delay in
cognitive development, communication development, physical development, social
or emotional development, or adaptive development as defined in WAC 392-172-116; or
(b) Qualify for one of the other eligibility categories specified in this
chapter; and
(c) Are in need of special education and any necessary related services.
Children who qualify for special education services under this category must be
reevaluated prior to age three in order to continue to be eligible for special
education and related services.
(2) As used in this chapter, the term "developmentally delayed, three to six
years" shall mean those children between three and six years of age who
demonstrate a delay on a standardized norm referenced test, with a test-retest
or split-half reliability of .80 that is at least:
(a) Two standard deviations below the mean in one or more of the five
developmental areas defined in WAC
392-172-116; or
(b) One and one-half standard deviations below the mean in two or more of the
five developmental areas defined in WAC
392-172-116; or
(c) Qualify for one of the other eligibility categories specified in this
chapter; and
(d) Are in need of special education and any necessary related services.
(e) Children aged six to nine years who previously qualified as
"developmentally delayed, three to six years," may at the option of the school
district or other public agency, continue to be eligible under the criteria for
"developmentally delayed, three to six years" until they are reevaluated, but
not later than three years after the eligibility decision for "developmentally
delayed, three to six years" was initially made.
(3) As used in this chapter, the term "developmentally delayed, six to nine
years" shall mean those children between six and nine years of age who either
continue to qualify under subsection (2) of this section, or demonstrate a delay
on a standardized norm referenced test, with a test-retest or split-half
reliability of .80 that is at least:
(a) Two standard deviations below the mean in one or more of the five
developmental areas defined in WAC
392-172-116; or
(b) Qualify for one of the other eligibility categories specified in this
chapter; and
(c) Are in need of special education and any necessary related services.
(4) Children who qualify for special education as "developmentally delayed,
six to nine years" must be reevaluated prior to the age of nine consistent with
WAC 392-172-182 et seq. and a
determination made that the child either:
(a) Qualifies under the provisions of one of the other disabling conditions
in this chapter; or
(b) Is no longer in need of special education and related services.
(5) A school district or other public agency is not required to adopt and use
the category "developmentally delayed" for children, three to nine, within its
jurisdiction.
(6) If a school district or other public agency uses the category
"developmentally delayed," the district or public agency must conform to both
the definition and age range of three to nine, established under this
section.
(7) School districts or other public agencies who use the category
"developmentally delayed," may also use any other eligibility category at any
time.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-114, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-114, filed 10/11/95, effective 11/11/95.]
WAC 392-172-116 Areas of
developmental delay-Definitions. The five developmental areas for the
purpose of applying eligibility criteria to developmentally delayed children
are:
(1) Cognitive development: Comprehending, remembering, and making sense out
of one’s experience. Cognitive ability is the ability to think and is often
thought of in terms of intelligence;
(2) Communication development: The ability to effectively use or understand
age-appropriate language, including vocabulary, grammar, and speech sounds;
(3) Physical development: Fine and/or gross motor skills requiring precise,
coordinated, use of small muscles and/or motor skills used for body control such
as standing, walking, balance, and climbing;
(4) Social or emotional development: The ability to develop and maintain
functional interpersonal relationships and to exhibit age appropriate social and
emotional behaviors; and
(5) Adaptive development: The ability to develop and exhibit age appropriate
self-help skills, including independent feeding, toileting, personal hygiene and
dressing skills.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-116, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-116, filed 10/11/95, effective 11/11/95.]
WAC 392-172-118 Definition and
eligibility for emotionally/behaviorally disabled. (1) Students who are
emotionally/behaviorally disabled are those who exhibit over a long period of
time and to a marked degree, one or more of the following characteristics, which
adversely affects their educational performance and requires specially designed
instruction:
(a) An inability to learn which cannot be explained by intellectual, sensory,
or health factors;
(b) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers;
(c) Inappropriate types of behavior or feelings under normal
circumstances;
(d) A general pervasive mood of unhappiness or depression; or
(e) A tendency to develop physical symptoms or fears associated with personal
or school problems.
(2) The term includes students who are schizophrenic.
(3) The term does not include students who are socially maladjusted, unless
it is determined that they are also emotionally/behaviorally disabled.
(4) All students considered for special education and any necessary related
services in this category shall be evaluated in all areas of suspected
disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-118, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-118, filed 10/11/95, effective 11/11/95.]
WAC 392-172-120 Definition and
eligibility for communication disordered. A student shall be considered to
have a communication disorder if there is a documented speech or language
impairment such as stuttering, voice disorder, language impairment, or impaired
articulation which adversely affects a student’s educational performance and
requires specially designed instruction.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106
through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-120, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-120, filed 10/11/95, effective 11/11/95.]
WAC 392-172-122 Definition and
eligibility for orthopedically impaired. Students who are orthopedically
impaired are those who lack normal function of muscles, joints or bones due to
congenital anomaly, disease or permanent injury, and such conditions adversely
affect their educational performance and require specially designed
instruction.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-122, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-122, filed 10/11/95, effective 11/11/95.]
WAC 392-172-124 Definition and
eligibility for health impaired. Students with health impairments are those
who have limited strength, vitality or alertness, including a heightened
alertness to environmental stimuli, that results in limited alertness with
respect to the educational environment due to chronic or acute health problems,
such as a heart condition, rheumatic fever, nephritis, asthma, attention deficit
disorder or attention deficit hyperactivity disorder, sickle cell anemia,
hemophilia, lead poisoning, leukemia, or diabetes, that adversely affect their
educational performance and require specially designed instruction.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-124, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-124, filed 10/11/95, effective 11/11/95.]
WAC 392-172-126 Definition and
eligibility for specific learning disability. (1) Specific learning
disability is a disorder in one or more of the basic psychological processes
involved in understanding or using spoken or written language that may manifest
itself in an imperfect ability to listen, think, speak, read, write, spell, or
to do mathematical calculations, including conditions such as perceptual
disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia.
(2) Specific learning disability does not include learning problems that are
primarily the result of visual, hearing, or motor disabilities, of mental
retardation, of emotional disturbance, or of environmental, cultural, or
economic disadvantage.
(3) All students being considered for eligibility for special education and
any necessary related services under this category shall be evaluated in all
areas of suspected disability in
accordance with the procedures in WAC 392-172-106 through 392-172-111 in addition to the procedures
set forth in WAC 392-172-128 through
392-172-132.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-126, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-126, filed 10/11/95, effective 11/11/95.]
WAC 392-172-128 Specific learning
disability-Evaluation procedures. The group described in WAC 392-172-108 (2)(b) may determine
that a student has a specific learning disability if:
(1) The student does not achieve commensurate with his or her age and ability
levels in one or more of the areas listed in subsection (2) of this section, if
provided with learning experiences appropriate for the student’s age and ability
levels;
(2) The group finds that a student has a severe discrepancy between
achievement and intellectual ability in one or more of the following areas:
(a) Oral expression.
(b) Listening comprehension.
(c) Written expression.
(d) Basic reading skill.
(e) Reading comprehension.
(f) Mathematics calculations.
(g) Mathematics reasoning;
(3) The group may not identify a student as having a specific learning
disability if the severe discrepancy between ability and achievement is
primarily the result of:
(a) A visual, hearing, or motor impairment;
(b) Mental retardation;
(c) Emotional/behavioral disability; or
(d) Environmental, cultural or economic disadvantage;
(4) At least one group member other than the student’s general education
teacher shall observe the student’s academic performance in the general
classroom setting;
(5) In the case of a student of less than school age or out of school, a
group member shall observe the student in an environment appropriate for a
student of that age;
(6) Written documentation that the student has an academic achievement
problem in the general education program shall be available. Examples of data
used for documentation may include:
(a) Student performance on daily classroom work and/or criterion-referenced
tests;
(b) Summary of past student performance;
(c) Group test results;
(d) Teacher observation and judgments; and
(e) Performance on state established standards;
(7) Documentation of the existence of a severe discrepancy between the
student’s intellectual ability and academic achievement in one or more of the
seven areas specified in this section shall be recorded. Such documentation
shall conform to the requirements of WAC
392-172-132; and
(8) Tests used to assess the student’s intellectual ability and academic
achievement shall be:
(a) Reliable as demonstrated by a reliability coefficient of .85 or
above;
(b) Normed on representative national samples; and
(c) Selected and individually administered in accordance with the general
requirements of WAC 392-172-106
through 392-172-108.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-128, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-128, filed 10/11/95, effective 11/11/95.]
WAC 392-172-130 Discrepancy tables
for determining severe discrepancy under WAC 392-172-132. The superintendent
of public instruction shall develop and publish discrepancy tables for the
purpose of determining a severe discrepancy between intellectual ability and
academic achievement pursuant to WAC
392-172-132. Such tables shall be developed on the basis of a regressed
standard score discrepancy method which shall consider the following
variables:
(1) The reliability coefficient of the intellectual ability test;
(2) The reliability coefficient of the academic achievement test; and
(3) An appropriate correlation between the intellectual ability and the
academic achievement tests.
The regressed standard score discrepancy method shall be applied at a
criterion level of 1.55.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-130, filed 10/11/95, effective 11/11/95.]
WAC 392-172-132 Method for
documenting severe discrepancy. (1) A severe discrepancy shall be determined
and documented from tables developed pursuant to WAC 392-172-130.
(2) For the purposes of applying the severe discrepancy tables, the following
scores shall be used:
(a) A total or full scale intellectual ability score;
(b) An academic achievement test score which can be converted into a standard
score with a mean of one hundred and a standard deviation of fifteen; and
(c) A severe discrepancy between the student’s intellectual ability and
academic achievement in one or more of the seven areas provided for in WAC 392-172-128 shall be determined by
applying the regressed standard score discrepancy method to the obtained
intellectual ability and achievement test scores using the tables referenced
above. Where the evaluation results do not appear to accurately represent the
student’s intellectual ability and where the discrepancy between the student’s
intellectual ability and academic achievement does not initially appear to be
severe upon application of the discrepancy tables in WAC 392-172-130, the evaluation group,
described in WAC 392-172-108 (2)(b),
shall apply professional judgment in order to determine the presence of a severe
discrepancy. In this event, the group shall document in a written narrative an
explanation as to why the student has a severe discrepancy. The written
narrative must provide supportive evidence, including the procedures used to
determine that a severe discrepancy exists between the student’s intellectual
ability and academic achievement. If the prohibition against the use of specific
tests or test results as provided in WAC
392-172-108 precludes the use of any of the tests referenced above, the
evaluation group shall document the basis upon which the members decided that
there exists a severe discrepancy.
(3) Each member of the evaluation group shall certify in writing whether the
evaluation report in WAC 302-172-10905 (3) and (4) reflects his or her conclusion. If
it does not, the group member must submit a separate statement presenting his or
her conclusion.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-132, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-132, filed 10/11/95, effective 11/11/95.]
WAC 392-172-134 Definition and
eligibility for mental retardation. Students with mental retardation are
those who demonstrate significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and manifested during
the developmental period, that adversely affects their educational performance
and requires specially designed instruction.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-134, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-134, filed 10/11/95, effective 11/11/95.]
WAC 392-172-136 Definition and
eligibility for multiple disabilities. Multiple disabilities means
concomitant impairments which adversely affect education performance and require
specially designed instruction (such as mental retardation-blindness, mental
retardation-orthopedic impairment, etc.), the combination of which causes such
severe educational needs that they cannot be accommodated in special education
programs solely for one of the impairments. The term does not include
deaf-blindness.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-136, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-136, filed 10/11/95, effective 11/11/95.]
WAC 392-172-138 Definition and
eligibility for deafness. Students who are deaf are those students who have
a documented hearing impairment which is so severe that the student is impaired
in processing linguistic information through hearing, with or without
amplification, that adversely affects educational performance and requires
specially designed instruction.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-138, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-138, filed 10/11/95, effective 11/11/95.]
WAC 392-172-140 Definition and
eligibility criteria for hearing impairment. Students with hearing
impairments have impaired hearing, whether permanent or fluctuating, that
adversely affects the student’s educational performance and requires specially
designed instruction but is not included under the definition of deafness.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-140, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-140, filed 10/11/95, effective 11/11/95.]
WAC 392-172-142 Definition and
eligibility for visually impaired/blindness. Students with a visual
impairment including blindness have an impairment that, even with correction,
adversely affects the student’s educational performance and requires specially
designed instruction. The term includes both partial sight and blindness.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-142, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-142, filed 10/11/95, effective 11/11/95.]
WAC 392-172-144 Definition and
eligibility for deaf/blindness. Students with deaf/blindness are those whose
hearing and vision impairments, in combination, cause such severe communication
and other developmental and educational needs that they cannot be accommodated
in special education programs solely for students with deafness or blindness.
The impairments adversely affect the student’s educational performance and
require specially designed instruction.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-144, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-144, filed 10/11/95, effective 11/11/95.]
WAC 392-172-146 Definition and
eligibility for autism. "Autism" means a developmental disability
significantly affecting verbal and nonverbal communication and social
interaction, generally evident before age three, that adversely affects a
student’s educational performance and requires specially designed instruction.
If a student manifests characteristics of autism after age three, that student
still could be diagnosed as having autism if the criteria in this section are
satisfied.
Other characteristics often associated with autism are engagement in
repetitive activities and stereotyped movements, resistance to environmental
change or change in daily routines and unusual responses to sensory
experiences.
The term does not apply if a student’s educational performance is adversely
affected primarily because the student has an emotional/behavioral disability,
as defined in this chapter. The category of autism includes students with
pervasive developmental disorders.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-146, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-146, filed 10/11/95, effective 11/11/95.]
WAC 392-172-148 Definition and
eligibility for traumatic brain injury. "Traumatic brain injury" means an
acquired injury to the brain caused by an external physical force resulting in
total or partial functional disability or psychosocial impairment, or both, that
adversely affects educational performance and requires specially designed
instruction. The term applies to open or closed head injuries resulting in
impairments in one or more of the following areas such as: Cognition; language;
memory; attention; reasoning; abstract thinking; judgment; problem-solving;
sensory perceptual and motor abilities; psychosocial behavior; physical
functions; information processing; and speech. The term does not apply to brain
injuries that are congenital or degenerative or brain injuries induced by birth
trauma.
All students being considered for eligibility for special education and any
necessary related services under this category shall be evaluated in all areas
of suspected disability and in accordance with the procedures in WAC 392-172-106 through 392-172-111.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-148, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-148, filed 10/11/95, effective 11/11/95.]
WAC 392-172-150 Independent
educational evaluation. (1) Parents of a special education student or a
student referred for special education have the right under this chapter to
obtain an independent educational evaluation of the student if the parent
disagrees with the school district’s or other public agency’s evaluation subject
to subsections (4) through (11) of this section.
(2) Each school district or other public agency shall provide to parents,
upon request for an independent educational evaluation, information about where
an independent educational evaluation may be obtained, and the agency criteria
applicable for independent educational evaluations as set forth in subsections
(10) and (11) of this section.
(3) For the purposes of this section:
(a) Independent educational evaluation means an evaluation conducted by a
qualified examiner who is not employed by the school district or other public
agency responsible for the education of the student in question; and
(b) Public expense means that the school district or other public agency
either pays for the full cost of the evaluation or ensures that the evaluation
is otherwise provided at no cost to the parent, consistent with this
chapter.
(4) A parent has the right to an independent educational evaluation at public
expense if the parent disagrees with an evaluation obtained by the school
district or other public agency.
(5) If a parent requests an independent educational evaluation at public
expense, the school district or other public agency must either:
(a) Initiate a hearing within fifteen days under this chapter to show that
its evaluation is appropriate; or
(b) Ensure that an independent educational evaluation is provided at public
expense, unless the agency demonstrates in a hearing under this chapter that the
evaluation obtained by the parent did not meet agency criteria.
(6) If the school district or other public agency initiates a hearing and the
final decision is that the agency’s evaluation is appropriate, the parent still
has the right to an independent educational evaluation, but not at public
expense.
(7) If a parent requests an independent educational evaluation, the school
district or other public agency may ask for the parent’s reason why he or she
objects to the public evaluation. However, the explanation by the parent may not
be required and the school district or other public agency must either provide
the independent educational evaluation at public expense or initiate a due
process hearing to defend the public evaluation.
(8) If the parent obtains an independent educational evaluation at public or
private expense, the results of the evaluation:
(a) Must be considered by the school district or other public agency, if it
meets agency criteria, in any decision made with respect to the provision of
FAPE to the student; and
(b) May be presented as evidence at a hearing under this chapter regarding
that student.
(9) If a hearing officer requests an independent educational evaluation as
part of a hearing, the cost of the evaluation must be at public expense.
(10) If an independent educational evaluation is at public expense, the
criteria under which the evaluation is obtained, including the location of the
evaluation and the qualifications of the examiner, must be the same as the
criteria that the school district or other public agency uses when it initiates
an evaluation, to the extent those criteria are consistent with the parent’s
right to an independent educational evaluation.
(11) Except for the criteria described in subsection (10) of this section, a
school district or other public agency may not impose conditions or timelines
related to obtaining an independent educational evaluation at public
expense.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-150, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-150, filed 10/11/95, effective 11/11/95.]
Individual Education Program
WAC 392-172-153 IEP team
members. The school district or other public agency shall ensure that the
IEP team for each special education student includes:
(1) The parent(s) of the student;
(2) At least one general education teacher (or preschool education provider)
of the student if the student is, or may be participating, in the general
education environment;
(3) At least one special education teacher of the student, or if appropriate,
at least one special education provider of the student;
(4) A representative of the school district or public agency who:
(a) Is qualified to provide, or supervise the provision of, specially
designed instruction to meet the unique needs of special education students;
(b) Is knowledgeable about the general curriculum; and
(c) Is knowledgeable about the availability of resources of the school
district or other public agency.
(5) An individual who can interpret the instructional implications of
evaluation results, who may be a member of the team described in subsections (2)
through (6) of this section.
(6) At the discretion of the parent or the school district or other public
agency, other individuals who have knowledge or special expertise regarding the
student, including related services personnel as appropriate;
(7) If appropriate, the student; and
(8) Transition services participants as described in WAC 392-172-166.
The determination of the knowledge or special expertise of any individual
described in this section shall be made by the party (parents or public agency)
who invited the individual to be a member of the IEP team.
A public agency may designate another public agency member of the IEP team to
also serve as the agency representative, if the criteria in this section are
satisfied.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-153, filed 12/1/99, effective
1/1/00.]
WAC 392-172-156 IEP meetings.
A meeting shall be held within thirty calendar days after the date the eligible
student’s evaluation is completed and group of qualified professionals and the
parent determine the student is eligible pursuant to WAC 392-172-111 for the purpose of
developing the student’s individualized education program. Meetings consistent
with this section shall be conducted by the school district or other public
agency periodically but at least annually for the purpose of reviewing and
revising as necessary each student’s individualized education program, to
determine whether the annual goals for the student are being achieved. The
individualized education program shall be revised, as appropriate, to address:
Any lack ofexpected progress toward the annual goals and in the general
curriculum if appropriate; the results of any reevaluation conducted;
information about the student provided to, or by, the parents; the student’s
anticipated needs; or other matters.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-156, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-156, filed 10/11/95, effective 11/11/95.]
WAC 392-172-15700 Parent and
general education teacher participation in meetings. (1) Each school
district or other public agency shall take steps to ensure (in the case of
nonadult students) that one or both parents of the special education student are
present at each meeting or are afforded the opportunity to participate, by:
(a) Notifying the parent(s) of the meeting early enough
to ensure that they will have an opportunity to attend; and
(b) Scheduling the meeting at a mutually agreed upon place and time.
(2) The notice to the parent(s) shall include the
purpose, time, location of the meeting and who will be in attendance. If the
purpose of the meeting is to develop, review or revise an IEP, the notice shall
also inform the parents of the provisions relating to the participation of other
individuals on the IEP team who have knowledge or special expertise about the
student. If the purpose of the meeting is the consideration of transition needs
or services, the provisions in WAC
392-172-164 apply.
(3) If neither parent can attend, the district or other
public agency shall use other methods to ensure participation, including
individual or conference telephone calls, or video conferencing.
(4) If neither parent can attend (in the case of a
nonadult student), a meeting may be conducted without a parent if the district
or other public agency is unable to convince the parents that they should
attend. In such a case the school district or other public agency must have a
record of its attempts to arrange a mutually agreed upon time and place. The
record shall contain such information as:
(a) Detailed records of telephone calls made or attempted and the results of
those calls;
(b) Copies of correspondence sent to the parents and any responses received;
and
(c) Detailed records of visits made to the parent’s home or place of
employment and the results of those visits.
(5) The school district or other public agency shall take
whatever action is necessary to ensure that the parent or adult student
understands the proceedings at an IEP meeting, or any other meeting, including
arranging for an interpreter for parents (or adult students) who are deaf or
whose native language is other than English.
(6) The general education teacher of a special education student (or
preschool education provider), as a member of the individualized education
program team, must, to the extent appropriate, participate in the development,
review, and revision of the student’s individualized education program,
including assisting in:
(a) The determination of appropriate positive behavioral interventions and
strategies for the student; and
(b) The determination of supplementary aids and services, program
modifications, and supports for school personnel that will be provided for the
student consistent with WAC 392-172-160
(1)(c).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-15700, filed 12/1/99, effective
1/1/00.]
WAC 392-172-15705 Parent
involvement in placement decisions. (1) Each public agency shall ensure that
the parents of each special education student are afforded the opportunity to be
members of any team that makes decisions on the educational placement of their
student.
(2) In implementing the requirements of this section, the public agency shall
use procedures consistent with the procedures described in WAC 392-172-15700.
(3) If neither parent can participate in a meeting in which a decision is to
be made relating to the educational placement of their student, the public
agency shall use other methods to ensure their participation, including
individual or conference telephone calls, or video conferencing.
(4) A placement decision may be made by a team without the involvement of the
parents, if the public agency is unable to obtain the parents’ participation in
the decision. In this case, the public agency must have a record of its attempt
to ensure their involvement, including information that is consistent with the
requirements of WAC
392-172-15700.
(5) The public agency shall make reasonable efforts to ensure that the
parents understand, and are able to participate in, any team discussions
relating to the educational placement of their student, consistent with WAC 392-172-15700.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-15705, filed 12/1/99, effective
1/1/00.]
WAC 392-172-158 Individualized
education program-Implementation. (1) At the beginning of each school year,
each public agency shall have in effect an individualized education program for
every special education student within its jurisdiction. An individualized
education program must:
(a) Be in effect before special education and related services are provided
to an eligible student; and
(b) Be implemented as soon as possible following the meetings under this
chapter.
(2) The student’s IEP shall be accessible to each general education teacher,
special education teacher, related service provider, and any other service
provider who is responsible for its implementation; and
(3) Each teacher and provider described above shall be informed of:
(a) His or her specific responsibilities related to implementing the
student’s IEP; and
(b) The specific accommodations, modifications, and supports that must be
provided for the student in accordance with the IEP.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-158, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-158, filed 10/11/95, effective 11/11/95.]
WAC 392-172-159 Development,
review, and revision of individualized education program-consideration of
special factors. (1) In developing, reviewing and revising each student’s
individualized education program, the team shall consider:
(a) The strengths of the student and the concerns of the parents for
enhancing the education of their student; and
(b) The results of the initial or most recent evaluation of the student;
and
(c) As appropriate, the results of the student’s performance on any general
state or district-wide assessment programs.
(2) The individualized education program team also shall:
(a) In the case of a student whose behavior impedes his or her learning or
that of others, consider, if appropriate, strategies, including positive
behavioral interventions, strategies, and supports to address that behavior;
(b) In the case of a student with limited English proficiency, consider the
language needs of the student as these needs relate to the student’s
individualized education program;
(c) In the case of a student who is blind or visually impaired, provide for
instruction in Braille and the use of Braille unless the IEP team determines,
after an evaluation of the student’s reading and writing skills, needs, and
appropriate reading and writing media (including an evaluation of the student’s
future needs for instruction in Braille or the use of Braille), that instruction
in Braille or the use of Braille is not appropriate for the student;
(d) Consider the communication needs of the student, and in the case of a
student who is deaf or hard of hearing, consider the student’s language and
communication needs, opportunities for direct communications with peers and
professional personnel in the student’s language and communication mode,
academic level, and full range of needs, including opportunities for direct
instruction in the student’s language and communication mode; and
(e) Consider whether the student requires assistive technology devices and
services.
(3) If, in considering the special factors described above, the IEP team
determines that a student needs a particular device or service (including an
intervention, accommodation, or other program modification) in order for the
student to receive a free appropriate public education, the
IEP team must include a statement to that effect in the student’s
individualized education program.
(4) Nothing in this section requires the team to include information under
one component of a student’s individualized education program that is already
contained under another component of the student’s individualized education
program.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-159, filed 12/1/99, effective
1/1/00.]
WAC 392-172-160 Individualized
education program. (1) Each student’s individualized education program shall
include:
(a) A statement of the student’s present levels of educational performance,
including:
(i) How the student’s disability affects the student’s involvement and
progress in the general curriculum (i.e., the same curriculum as for nondisabled
students); or
(ii) For preschool students, as appropriate, how the disability affects the
student’s participation in appropriate activities.
(b) A statement of measurable annual goals, including benchmarks or
short-term objectives, related to:
(i) Meeting the student’s needs that result from the student’s disability to
enable the student to be involved in and progress in the general curriculum
(i.e., the same curriculum as for nondisabled students), or for preschool
students, as appropriate, to participate in appropriate activities; and
(ii) Meeting each of the student’s other educational needs that result from
the student’s disability.
(c) A statement of the special education and any necessary
related services and supplementary aids and services to be provided to the
student, or on behalf of the student, and a statement of the program
modifications or supports for school personnel that will be provided for the
student consistent with WAC 392-172-045
(4)(a):
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with
this section and to participate in extracurricular and other nonacademic
activities; and
(iii) To be educated and participate with other special education students
and nondisabled students in the activities described in this section.
(d) An explanation of the extent, if any, to which the student will not
participate with nondisabled students in the general class and in activities
described in this section.
(e) A statement of any individual modifications in the administration of
state or district-wide assessments of student achievement that are needed in
order for the student to participate in the assessment. If the individualized
education program team determines that the student will not participate in a
particular state or district-wide assessment of student achievement (or part of
an assessment), a statement of:
(i) Why that assessment is not appropriate for the student; and
(ii) How the student will be assessed.
(f) The projected date for the beginning of the services and modification
described in this section and the anticipated frequency, location, and duration
of those services and modifications.
(g) A statement of:
(i) How the student’s progress toward the annual goals described in this
section will be measured; and
(ii) How the student’s parents will be regularly informed (through such means
as periodic report cards), at least as often as parents are informed of their
nondisabled student’s progress of:
(A) The annual goals; and
(B) The extent to which that progress is sufficient to enable the student to
achieve the goals by the end of the year.
(h) For each special education student beginning at age fourteen (or younger,
if determined appropriate by the IEP team), and updated annually, a statement of
the transition service needs of the student under the applicable components of
the student’s IEP that focuses on the student’s courses of study (such as
participation in advanced placement courses or a vocational education
program).
(i) For each student beginning at age sixteen (or younger, if determined
appropriate by the IEP team), a statement of needed transition services for the
student, including, if appropriate, a statement of the interagency
responsibilities or any needed linkages.
(j) If a participating agency, other than the public agency, fails to provide
the transition services described in the IEP, the public agency shall reconvene
the IEP team to identify alternative strategies to meet the transition
objectives for the student set out in the IEP.
(k) Beginning at least one year before a student reaches age eighteen,
consistent with WAC 392-172-309, the
student’s individualized education program must include a statement that the
student has been informed of his or her rights under Part B of the Individuals
with Disabilities Education Act, if any, that will transfer to the student on
reaching the age of majority.
(l) Aversive interventions, if applicable, consistent with WAC 392-172-388 through 392-172-396. The individualized education
program shall describe the positive interventions attempted by the district or
other public agency prior to the use of aversive interventions.
(m) Extended school year services, pursuant to WAC 392-172-163.
(2) Nothing in this chapter relieves any participating
agency, including a state vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that the agency
would otherwise provide to special education students who meet the eligibility
criteria of that agency.
(3) The school district or other public agency shall
provide the parent or the adult student a copy of the individualized education
program at no cost.
(4) Each public agency must:
(a) Provide special education and related services to a special education
student in accordance with an individualized education program; and
(b) Make a good faith effort to assist the student to achieve the goals and
objectives or benchmarks listed in the IEP.
(i) Part B of the Individuals with Disabilities Education Act does not
require that any agency, teacher, or other person be held accountable if a
student does not achieve the growth projected in the annual goals and benchmarks
or objectives.
(ii) Nothing in this section limits a parent’s right to ask for revisions of
the student’s IEP or to invoke due process procedures if the parent feels that
the efforts required in this subsection are not being made.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-160, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-160, filed 10/11/95, effective 11/11/95.]
WAC 392-172-162 Physical education
required. (1) Physical education services, specially designed if necessary,
must be made available to every special education student receiving FAPE.
(2) Each special education student must be afforded the opportunity to
participate in the general physical education program available to students who
are not disabled unless:
(a) The student is enrolled full time in a separate facility; or
(b) The student needs specially designed physical education, as prescribed in
the student’s individualized education program.
(3) If specially designed physical education is prescribed in a student’s
individualized education program, the school district or other public agency
shall ensure that the public agency responsible for the education of that
student provides the service directly, or makes arrangements for it to be
provided through other public or private programs.
(4) The school district or other public agency shall ensure that any special
education student who is enrolled in a separate facility will be provided with
appropriate physical education services.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-162, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-162, filed 10/11/95, effective 11/11/95.]
WAC 392-172-163 Extended school
year services. (1) Each public agency shall ensure that extended school year
services are available as necessary to provide FAPE, consistent with this
section.
(2) Extended school year services must be provided only if a student’s IEP
team determines, on an individual basis, in accordance with this chapter 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 extended school year services to particular categories of
disability; or
(b) Unilaterally limit the type, amount, or duration of those services.
(4) As used in this section, the term extended school year services means
special education and any necessary related services that:
(a) Are provided to a student with a disability:
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the student’s IEP; and
(iii) At no cost to the parents of the student; and
(b) Meet the standards of the state for provision of special education and
related services.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-163, filed 12/1/99, effective
1/1/00.]
WAC 392-172-164 Parent notice of
individualized education program meeting-Transition needs or services. If a
purpose of the individualized education program meeting is the consideration of
transition services needs or services for a student, the notice required under
WAC 392-172-15700 of the
individualized education program meeting must also:
(1) For a special education student beginning at age fourteen, or younger, if
appropriate:
(a) Indicate that a purpose of the meeting will be the development of a
statement of the transition services needs of the student; and
(b) Indicate that the agency will invite the student.
(2) For a special education student beginning at age sixteen, or younger, if
appropriate:
(a) Indicate that a purpose of the meeting is the consideration of needed
transition services for the student;
(b) Indicate that the agency will invite the student; and
(c) Identify any other agency that will be invited to send a
representative.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-164, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-164, filed 10/11/95, effective 11/11/95.]
WAC 392-172-166 Transition
services, student participation. (1) The school district or other public
agency shall invite a special education student of any age to attend his or her
IEP meeting if a purpose of the meeting will be the consideration of:
(a) The student’s transition services needs;
(b) The needed transition services for the student; or
(c) Both.
(2) If the student does not attend the IEP meeting, the school district or
other public agency shall take other steps to ensure that the student’s
preferences and interests are considered.
(3) In implementing the requirements of this section, the school district or
other public agency also shall invite a representative of any other agency that
is likely to be responsible for providing or paying for transition services.
(4) If an agency invited to send a representative to a meeting does not do
so, the school district or other public agency shall take other steps to obtain
participation of the other agency in the planning of any transition
services.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-166, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-166, filed 10/11/95, effective 11/11/95.]
Service Delivery Options
WAC 392-172-170 Initial service
delivery-Parental consent for initial placement-Notice required. (1) Written
consent of the parent(s) or adult student shall be requested and obtained,
consistent with WAC 392-172-304 before
initial special education and related services are provided.
(2) Each school district or other public agency shall provide prior written
notice of the initial provision of special education services to the student,
consistent with WAC 392-172-302.
(3) The student’s proposed special education and related services shall begin
when:
(a) Written consent has been given by the parent(s) or the adult student
(using mediation if appropriate); or
(b) The refusal of a student’s parent(s) or adult student to grant consent
has been overridden by the school district or other public agency pursuant to a
hearing (or appeal) conducted in accordance with WAC 392-172-350 et seq.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-170, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-170, filed 10/11/95, effective 11/11/95.]
WAC 392-172-172 Least restrictive
environment. Each public agency shall establish and implement procedures
which meet the least restrictive environment requirements of this chapter. The
provision of services to each special education student, including preschool
students and students in public or private institutions or other care
facilities, shall be provided:
(1) To the maximum extent appropriate in the general education environment
with students who are nondisabled; and
(2) Special classes, separate schooling or other removal of students with
disabilities from the general educational environment occurs only if the nature
or severity of the disability is such that education in general classes with the
use of supplementary aids and services cannot be achieved satisfactorily.
(3) Nonacademic settings-Each special education student shall be provided
nonacademic and extracurricular services and activities conducted by the school
district or other public agency with students who are not disabled to the
maximum extent appropriate to the needs of the student. Nonacademic and
extracurricular services and activities may also include counseling services,
athletics, transportation, health services, recreational activities, special
interest groups or clubs sponsored by the district or other public agency,
referrals to agencies that provide assistance to individuals with disabilities,
and employment of students, including both employment by the district or other
public agency and assistance in making outside employment available. Each school
district or public agency shall take steps to ensure that its special education
students have available to them the variety of educational programs and services
available to nonspecial education students in the area served by the school
district or public agency, including art, music, industrial arts, consumer and
homemaking education, and vocational education.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-172, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-172, filed 10/11/95, effective 11/11/95.]
WAC 392-172-174 Continuum of
alternative service delivery options. (1) Each school district or other
public agency shall ensure that a continuum of alternative placements is
available to meet the needs of special education students for special education
and related services.
(2) The continuum required in this section must:
(a) Include the alternative placements listed in the definition of special
education in WAC 392-172-045, such as
instruction in general classes, special classes, special schools, home
instruction, and instruction in hospitals and institutions; and
(b) Make provision for supplementary services such as resource room or
itinerant instruction to be provided in conjunction with general classroom
placement.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-174, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-174, filed 10/11/95, effective 11/11/95.]
WAC 392-172-176 Transition to
preschool program. Each school district or other public agency shall have
policies and procedures for transition to preschool programs to ensure that:
(1) Students 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 the Part C requirements.
(2) Each school district will participate in transition planning conferences
arranged by the designated lead agency for Part C in the state. A transition
planning conference will be convened for each student who may be eligible for
preschool services at least ninety days (or at the discretion of all parties up
to six months) prior to the student’s third birthday.
(3) By the third birthday of a student described in subsection (1) of this
section, an IEP has been developed and is being implemented for the student
consistent with WAC
392-172-030(1).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-176, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-176, filed 10/11/95, effective 11/11/95.]
WAC 392-172-180 Procedures for
establishing educational placement. (1) The educational placement of each
special education student, including a preschool student, shall be determined at
least annually at a meeting conducted pursuant to WAC 392-172-156.
(2) The selection of the appropriate placement for each special education
student shall be based upon:
(a) The student’s individualized education program;
(b) The least restrictive environment requirements of WAC 392-172-172;
(c) The placement option(s) that provides a reasonably high probability of
assisting the student to attain his or her annual goals; and
(d) A consideration of any potential harmful effect on the student or on the
quality of services which he or she needs.
(3) Unless the IEP of a special education student requires some other
arrangement, the student shall be educated in the school that he or she would
attend if nondisabled. The placement shall be as close as possible to the
student’s home, unless the parents otherwise agree.
(4) The decision on the educational placement shall be made by a group of
persons, including the parents, and other persons knowledgeable about the
student, the evaluation data, and the placement options.
(5) A special education student is not removed from education in
age-appropriate general classrooms solely because of needed modifications in the
general curriculum.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-180, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-180, filed 10/11/95, effective 11/11/95.]
Evaluation of
Progress-Reevaluation
WAC 392-172-182 Reevaluation-Requirement.
Each school district or other public agency shall ensure:
(1) That the IEP of each special education student is reviewed in accordance
with this chapter; and
(2) That a reevaluation of each student is conducted in
accordance with this chapter if conditions warrant a reevaluation, or if the
student’s parent or teacher requests a reevaluation, but at least once every
three years.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-182, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-182, filed 10/11/95, effective 11/11/95.]
WAC 392-172-185 Reevaluation-Notice and
consent requirements. (1) A reasonable time prior to conducting a
reevaluation, the district or other public agency shall provide prior written
notice to parents or adult students consistent with WAC 392-172-302.
(2) Informed parental consent for reevaluation shall be obtained consistent
with the provisions in WAC
392-172-304.
(3) Parental consent is not required before reviewing existing data as part
of a reevaluation, or administering a test or other evaluation that is
administered to all students unless, before administration of that test or
evaluation, consent is required of parents of all students.
(4) Informed parental consent need not be obtained for reevaluation if the
school district or other public agency can demonstrate that it has taken
reasonable measures to obtain that consent, and the student’s parent has failed
to respond.
(5) To meet the reasonable measures requirement in this section, the public
agency must use procedures consistent with those in WAC 392-172-15700 (3) and (4).
(6) A reevaluation shall be conducted consistent with the timelines in WAC 392-172-104(2) and 392-172-182(2).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-185, filed 12/1/99, effective
1/1/00.]
WAC 392-172-186 Reevaluation-Procedures.
(1) As part of any reevaluation, a group that includes the individuals described
in WAC 392-172-153, and other
qualified professionals, as appropriate, shall review existing evaluation data
on the student, including:
(a) Evaluations and information provided by the parents of the student;
(b) Current classroom-based assessment and observations; and
(c) Observations by teachers and related services providers.
(2) Based on the above review and input from the student’s parents, identify
what additional data, if any, are needed to determine:
(a) Whether the student continues to be a special education student and
continues to need special education and any necessary related services;
(b) The present levels of performance and educational needs of the student;
and
(c) If any additions or modifications to the special education and any
necessary related services are needed to enable the student to meet the
measurable annual goals set out in the student’s individualized education
program and to participate, as appropriate, in the general curriculum.
(3) The group described in subsection (1) of this section may conduct its
review without a meeting. If the school district or other public agency conducts
a meeting for the purposes under this section, parents must have an opportunity
to participate in the meeting consistent with WAC 392-172-105.
(4) A public agency must evaluate a special education student in accordance
with this chapter before determining that the student is no longer a special
education student.
(5) The evaluation described in subsection (4) of this section is not
required before the termination of a student’s eligibility under this chapter
due to graduation with a regular high school diploma, or exceeding the age
eligibility for FAPE under state law. Prior written notice is required,
consistent with WAC 392-172-302.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-186, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-186, filed 10/11/95, effective 11/11/95.]
WAC 392-172-188 Reevaluation-Purposes.
The group described in WAC 392-172-186 shall determine if additional evaluation
procedures are necessary to confirm the decisions to be made in WAC 392-172-186, consistent with WAC 392-172-106 through 392-172-111.
If no additional data are needed to determine whether the student continues
to be a special education student, the school district or other public agency
shall notify the student’s parents, consistent with WAC 392-172-302:
(1) Of that determination and the reasons for it; and
(2) Of the right of the parents to request an assessment to determine, for
purposes of services under this chapter, the continuing eligibility of the
student.
The school district or other public agency is not required to conduct the
assessment unless requested to do so by the parents.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-188, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-188, filed 10/11/95, effective 11/11/95.]
WAC 392-172-190 Reevaluation-Notice of
results. Within ten calendar days of the completion of the reevaluation, the
district or other public agency superintendent or designee shall notify the
parent or adult student, pursuant to WAC
392-172-302, of one or more of the following decisions:
(1) Whether the student continues to be eligible and in need of special
education;
(2) The present levels of performance and educational needs of the student;
and
(3) Whether any additions or modifications to the special education and any
necessary related services are needed to enable the student to meet the
measurable annual goals set out in the IEP of the student and to participate, as
appropriate, in the general curriculum.
When a determination is made that the individualized education program is no
longer appropriate, an individualized education program team meeting shall be
convened in accordance with WAC 392-172-153 through 392-172-166.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-190, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-190, filed 10/11/95, effective 11/11/95.]
SERVICE DELIVERY STANDARDS
Staff Qualifications
WAC 392-172-200 Staff
qualifications for special education funding. All employees of a school
district or other public agency funded in whole or part with state or federal
special education excess cost funds shall be qualified as follows:
(1) All employees shall hold such credentials, certificates, endorsements or
permits as are now or hereafter required by the state board of education for the
particular position of employment and shall meet such supplemental standards as
may be established by the school district or other public agency of employment.
Supplemental standards established by a district or other public agency may
exceed, but not be less than, those established by this section.
Pursuant to WAC
180-82-100,after August 31, 2000, a teacher who has completed twenty-four
quarter hours (sixteen semester credit hours) of the required special education
course work shall be eligible for a pre-endorsement waiver which will allow that
person to be employed as a special education teacher. The remaining credits and
all endorsement requirements shall be completed within three years of service as
a special education teacher. Application for the special education or early
childhood special education preendorsement waiver shall be made to the special
education section at the office of superintendent of public instruction.
(2) In addition to the requirement of subsection (1) of this section, all
special education teachers providing, designing, supervising, monitoring or
evaluating the provision of special education shall possess "substantial
professional training." "Substantial professional training" as used in this
section shall be evidenced by issuance of an appropriate special education
endorsement on an individual teaching certificate issued by the superintendent
of public instruction.
(3) Other certificated instructional personnel providing specially designed
instruction or related services as defined in this chapter, shall meet standards
established under the educational staff associate rules of the state board of
education, as now or hereafter amended.
(4) Employees with only an early childhood special education endorsement
shall be assigned to programs that serve students birth through age eight.
Preference for early childhood special education assignment must always be given
first to employees having early childhood special education endorsement.
(5) Certified and/or classified staff assigned to provide instruction in
Braille, the use of Braille, or the production of Braille must demonstrate
competency with grade two standard literary Braille code by successful
completion of a test approved by the state board of education pursuant to WAC
180-82-130.
(6) Classified staff shall present evidence of skills and knowledge necessary
to meet the needs of students with disabilities, and shall be supervised
consistent with WAC 392-172-045
(4)(a)(iii). Districts shall have procedures that ensure that classified
staff receive training to meet state recommended core competencies pursuant to
RCW 28A.415.310.
(7) General education classroom personnel providing specially designed
instruction defined in WAC
392-172-045 (4)(a)(iii) pursuant to a properly formulated individual
education program may be paid from state or federal special education excess
cost funds if the district has
in place a cost allocation plan which meets the requirements established by
the superintendent of public instruction.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-200, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-200, filed 10/11/95, effective 11/11/95.]
WAC 392-172-202 Emergency-Temporary
out-of-endorsement assignment. In order to temporarily assign classroom
teacher without a special education endorsement to a special education position,
the district or other public agency must keep written documentation on the
following:
(1) The district or other public agency must make one or more of the
following factual determinations:
(a) The district or other public agency was unable to recruit a teacher with
the proper endorsement who was qualified for the position;
(b) The need for a teacher with such an endorsement could not have been
reasonably anticipated and the recruitment of such a classroom teacher at the
time of assignment was not reasonably practicable; and/or
(c) The reassignment of another teacher within the district or other public
agency with the appropriate endorsement to such assignment would be unreasonably
disruptive to the current assignments of other classroom teachers or would have
an adverse effect on the educational program of the students assigned such other
classroom teachers.
(2) Upon determination by a school district that one or more of these
criteria can be documented, and the district determines that a teacher has the
competencies to be an effective special education teacher but does not have
endorsement in special education, the district can so assign the teacher to
special education. The teacher so assigned must have completed six semester
hours or nine quarter hours of course work which are applicable to an
endorsement in special education. The following requirements apply:
(a) A designated representative of the district and any such teacher shall
mutually develop a written plan which provides for necessary assistance to the
teacher, and which provides for a reasonable amount of planning and study time
associated specifically with the out-of-endorsement assignment;
(b) Such teachers shall not be subject to nonrenewal or probation based on
evaluations of their teaching effectiveness in the out-of-endorsement
assignments;
(c) Such teaching assignments shall be approved by a formal vote of the local
school board for each teacher so assigned; and
(d) The assignment of such teachers for the previous school year shall be
reported annually to the state board of education by the employing school
district as required by WAC 180-16-195. Included in the report shall be the
number of teachers in out-of-endorsement assignments and the specific assistance
being given to the teacher.
(3) An emergency out-of-endorsement assignment by the district or other
public agency is only valid for one school year.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-202, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-202, filed 10/11/95, effective 11/11/95.]
Program
Standards-Transportation-Facilities-Comparability
WAC 392-172-204 Transportation. (1)
Methods. Transportation options for special education students shall include the
following categories and shall be exercised in the following sequence:
(a) A scheduled school bus;
(b) Contracted transportation, including public transportation; and
(c) Other transportation arrangements, including that provided by parents.
Board and room cost in lieu of transportation may be provided whenever the above
stated transportation options are not feasible because of the need(s) of a
special education student or because of the unavailability of adequate means of
transportation, in accordance with rules of the superintendent of public
instruction.
(2) Welfare of the student. The transportation of a special education student
shall be in accordance with rules of the superintendent of public instruction
governing transportation by public school districts and other public
agencies.
(3) Bus aides and drivers. Training and supervision of bus aides and drivers
shall be the responsibility of the school district or other public agency
superintendent or designee.
(4) Special equipment. Special equipment may include lifts, wheelchair
holders, restraints, and two-way radios. All such special equipment shall comply
with specifications contained in the specifications for school buses as now or
hereafter established by the superintendent of public instruction.
(5) Transportation time on bus. Wherever reasonably possible, no student
should be required to ride more than sixty minutes one way.
(6) Transportation for state residential school students to and from the
residential school and the sites of the educational program shall be the
responsibility of the department of social and health services and each state
residential school pursuant to law.
(7) Transportation for a state residential school student, including students
attending the state school for the deaf and the state school for the blind, to
and from such school and the residency of such student shall be the
responsibility of the district of residency only if the student’s placement was
made by such district or other public agency pursuant to an interagency
agreement-i.e., an appropriate placement in the least restrictive
environment.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055
(Order 95-11), § 392-172-204, filed 10/11/95, effective 11/11/95.]
WAC 392-172-208 Comparable
facilities. If a school district or other public agency, in compliance with
this chapter, operates a facility that is identifiable as being for special
education students, the district or other public agency shall assure that the
facility and the services and activities provided in the facility are comparable
in quality to the school district and other public agency’s facilities,
services, and activities for students who are not disabled.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055
(Order 95-11), § 392-172-208, filed 10/11/95, effective 11/11/95.]
WAC 392-172-210 Program
length. The length of the education program for special education students
shall be at least as long as the education program for students who are not
disabled in terms of both the number of school days in the general school year
and the average number of hours per school day. If a special education student
cannot attend school a full school day, the reason shall be documented in his or
her records and addressed in the individualized education program. The program
length for a student during an extended school year shall be determined by the
student’s individualized education program.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-210, filed 10/11/95, effective 11/11/95.]
WAC 392-172-212 Health or safety
standards. The superintendent of public instruction and districts shall
comply with any federal health or safety requirements that apply to facilities
used under Part B of Individuals with Disabilities Education Act.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-212, filed 10/11/95, effective 11/11/95.]
Home/Hospital Instruction
WAC 392-172-218 Home/hospital
instruction. Home or hospital instruction shall be provided to both special
education students and other students who are unable to attend school for an
estimated period of four weeks or more because of physical disability or
illness. As conditions to such services, the parent(s) of a student or the adult
student shall request the services and provide a written statement to the school
district or other public agency from a qualified medical practitioner that
states the student will not be able to attend school for an estimated period of
at least four weeks. A student who is not otherwise disabled pursuant to WAC 392-172-035 who qualifies pursuant to
this subsection shall be deemed "disabled" only for the purpose of home/hospital
instructional services and funding and may not otherwise qualify as a special
education student for the purposes of generating state or federal special
education funds. A school district or other public agency shall not pay the cost
of the statement from a qualified medical practitioner for the purposes of
qualifying a student for home/hospital instructional services pursuant to this
section.
Home/hospital instructional services funded in accordance with the provisions
of this section shall not be used for the initial or ongoing delivery of
services to special education students. It shall be limited to placement as is
deemed necessary to provide temporary intervention as a result of a physical
disability or illness.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055
(Order 95-11), § 392-172-218, filed 10/11/95, effective 11/11/95.]
School District Placements for Provision of
FAPE
WAC 392-172-219 Applicability.
The provisions of WAC 392-172-220
through 392-172-226 apply only to
special education students who are, or have been placed in, or referred to a
nonpublic or public school agency by a school district as a means of providing
special education and related services.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-219, filed 12/1/99, effective
1/1/00.]
WAC 392-172-220 Contractual
services. School districts shall be authorized to:
(1) Enter into interdistrict agreements with another school district(s) or
other public agencies; or
(2) Contract with nonpublic and public agencies for special education and
related services for special education students if the school district
establishes that it cannot provide an appropriate education for the special
education student within the district.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-220, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-220, filed 10/11/95, effective 11/11/95.]
WAC 392-172-222 Approval of
nonpublic agencies. (1) A school district or other public agency shall not
award a contract to a nonpublic agency to provide special education to a special
education student until the state board of education approves the nonpublic
agency.
(2) The school district or other public agency shall notify the office of
superintendent of public instruction, in writing, of their intent to enroll a
student and/or contract with a nonpublic agency.
(3) The office of superintendent of public instruction shall provide the
agency named with the procedures/application for nonpublic agency approval,
which shall consist of description of agency and services provided, assurances,
personnel record, and fire and health inspection forms.
(4) Upon review of the completed application and an on-site visitation the
superintendent of public instruction or designee shall recommend approval or
disapproval of the agency to the state board of education.
(5) The superintendent of public instruction or designee shall make
information regarding currently approved nonpublic agencies available to all
school districts.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-222, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-222, filed 10/11/95, effective 11/11/95.]
WAC 392-172-224 School district or
other public agency responsibility when contracting for the delivery of services
in a public agency or approved nonpublic agency. Any school district or
other public agency contracting with a public or approved nonpublic agency for
special education and related services shall:
(1) Initiate and conduct a meeting with appropriate personnel and the
student’s parent(s) to develop the student’s individualized education program.
The district or other public agency shall ensure that a representative of the
approved nonpublic or public agency attends the meeting or in some other way
assure participation. Meetings to review or revise the student’s individualized
education program after the student has been placed shall be initiated and
conducted by the approved nonpublic or public agency at the discretion of the
school district or other public agency. The district or other public agency
shall assure that both the parent(s) or the adult student and the public agency
or approved nonpublic agency are represented in any decision concerning the
student’s individualized education program and agree to proposed changes in the
program before those changes are implemented. The responsibility for compliance
with this section lies with the school district or other public agency.
(2) Develop a written contract which shall include, but not be limited to,
the following elements:
(a) Names of the parties involved;
(b) The name(s) of the special education student(s) for whom the contract is
drawn;
(c) Location and setting of the services to be provided;
(d) Description of services provided, program administration and
supervision;
(e) Designation of responsible parties;
(f) Charges and reimbursement-Billing and payment procedures;
(g) Total contract cost;
(h) School district and other public agency’s responsibility for compliance
with due process, individualized education program, and yearly review and
determination of placement requirements; and
(i) Other contractual elements that may be necessary to assure compliance
with state and federal rules.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-224, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-224, filed 10/11/95, effective 11/11/95.]
WAC 392-172-226 Residential
educational services-Methods of payment. (1) If the delivery of services in
a public or private residential educational program is necessary to provide
special education and any necessary related services to a special education
student, the program, including nonmedical care and room and board, must be at
no cost to the parents of the student. Nothing in this chapter limits the
responsibility of agencies other than educational agencies for providing or
paying some or all of the costs of a free appropriate public education to
special education students in the state.
(2) Nothing in this chapter relieves an insurer or similar third party from
an otherwise valid obligation to provide or to pay for services provided to
special education students.
(3) Consistent with the IEP provisions in this chapter, the office of the
superintendent of public instruction shall ensure 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.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-226, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-226, filed 10/11/95, effective 11/11/95.]
Parental Placements for Provision of
FAPE
WAC 392-172-230 Placement of
students by parents. If a special education student has a free appropriate
public education available and the parents choose to place the student in a
private school or facility, the public agency is not required by this chapter to
pay for the student’s education, including special education and related
services, at the private school or facility. However, the public agency shall
include that student in the population whose needs are addressed consistent with
WAC 392-172-232 through 392-172-248.
Disagreements between a parent and a public agency regarding the availability
of a program appropriate for the student, and the question of financial
responsibility, are subject to
the due process procedures of this chapter. Disagreements may also be
resolved through the mediation process described in this chapter.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-230, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-230, filed 10/11/95, effective 11/11/95.]
WAC 392-172-231 Reimbursement for
private school placement. (1) If the parents of a special education student,
who previously received special education and any necessary related services
under the authority of a school district or other public agency, enroll the
student in a private preschool, elementary or secondary school without the
consent of or referral by a school district or other public agency, a court or a
hearing officer may require a school district or other public agency to
reimburse the parents for the cost of that enrollment if the court or hearing
officer finds that a school district or other public agency had not made a free
appropriate public education 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
it does not meet the state standards that apply to education provided by a
school district or other public agency.
(2) The cost of reimbursement may be reduced or denied if:
(a) At the most recent individualized education program meeting that the
parents attended prior to removal of the student from the public school, the
parents did not inform the team that they were rejecting the placement proposed
by a school district or other public agency to provide a free appropriate public
education to their student, including stating their concerns and their intent to
enroll their student in a private school at public expense; or
(b) At least ten 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 a school district or other public agency
of the information described in (a) of this subsection; or
(c) If, prior to the parents’ removal of the student from the public school,
a school district or other public agency informed the parents, through the
notice requirements described in this chapter, 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
(d) Upon a judicial finding of unreasonableness with respect to actions taken
by the parents.
(3) Notwithstanding the notice requirement in subsection (2)(a) and (b) of
this section, the cost of reimbursement may not be reduced or denied for failure
to provide the notice if:
(a) The parent is illiterate and/or cannot write in English;
(b) Compliance with the notice requirements of this section would likely
result in physical or serious emotional harm to the student;
(c) The school district or other public agency prevented the parent from
providing the notice; or
(d) The parent had not received notice of the requirement to notify a school
district or other public agency of the information required in subsection (2)(a)
and (b) of this section.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-231, filed 12/1/99, effective
1/1/00.]
Students Enrolled in Private Schools by
Parent
WAC 392-172-232 Definition-"Private
school special education student(s)." For the purpose of WAC 392-172-23300 through 392-172-248 "private school special
education student(s)" means special education students who are not full or part
time enrolled in the public school or other public agency for the purpose of
receiving special education and related services, who are enrolled in private
schools or agencies, and whose private school enrollment is not the result of a
contractual arrangement between a public school district or other public agency
and the private school or agency. "Resident special education students" means
those students who reside within school district or other public agency
boundaries, consistent with chapter 28A.225 RCW.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-232, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-232, filed 10/11/95, effective 11/11/95.]
WAC 392-172-23300 Child
count. (1) Each school district or other public agency shall:
(a) Consult with representatives of private school students in deciding how
to conduct the annual count of the number of private school special education
students; and
(b) Ensure that the count is conducted on December 1 of each year.
(2) The child count must be used to determine the amount that the school
district or other public agency must spend on providing special education and
related services to private school special education students, described in WAC 392-172-232, in the next subsequent
fiscal year.
(3) State and local educational agencies are not prohibited from providing
services to private school special education students in excess of those
required by this section consistent with state law or local policy.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-23300, filed 12/1/99, effective
1/1/00.]
WAC 392-172-23305 Expenditures.
Each school district or public agency shall spend a proportionate amount of
federal funds on providing special education and related services to private
school special education students as follows:
(1) For students aged three through twenty-one, an amount that is the same
proportion of the school district’s or other public agency’s total subgrant
under Part B of the Individuals with Disabilities Education Act as the number of
private school special education students aged three through twenty-one residing
in its jurisdiction is to the total number of special education students in its
jurisdiction aged three through twenty-one; and
(2) For students aged three through five, an amount that is the same
proportion of the school district’s or other public agency’s total subgrant
under the school district’s or other agency’s preschool grant under section 619
of the Individuals with Disabilities Education Act as the number of private
school special education students aged three through five residing in its
jurisdiction is to the total number of special education students in its
jurisdiction aged three through five.
(3) Expenditures for child find activities described in WAC 392-172-100 may not be considered in
determining whether the school district of other public agency has met the
requirements of this section.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-23305, filed 12/1/99, effective
1/1/00.]
WAC 392-172-23600 Determination
(of needs, numbers of students and types) of services. (1) No private school
special education student, as defined in WAC 392-172-232, 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. Decisions about the
services that will be provided to private school special education students
under WAC 392-172-232 through 392-172-248 must be made in accordance
with this section.
(2) Each school district or other public agency shall consult, in a timely
and meaningful way, with appropriate representatives of private school special
education students in light of the funding under WAC 392-172-23305, the number of
private school special education students, the needs of private school special
education students, and their location to decide:
(a) Which students will receive services;
(b) What services will be provided;
(c) How and where the services will be provided; and
(d) How the services provided will be evaluated.
(3) Each school district or other public agency shall give appropriate
representatives of private school special education students a genuine
opportunity to express their views regarding each matter that is subject to the
consultation requirements in this section.
(4) The consultation required by this section shall occur before the school
district or other public agency makes any decision that affects the
opportunities of private school special education students to participate in
services under WAC 392-172-232 through
392-172-248.
(5) The school district or other public agency shall make the final decision
with respect to the services to be provided to eligible private school
students.
(6) If a special education student is enrolled in a religious or other
private school and will receive special education or related services from a
school district or other public agency, the district or agency shall:
(a) Initiate and conduct meetings to develop, review, and revise a services
plan for the student, in accordance with WAC 392-172-23605; and
(b) Ensure that a representative of the religious or other private school
attends each meeting. If the representative cannot attend, the school district
or other public agency shall use other methods to ensure participation by the
private school, including individual or conference telephone calls.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-23600, filed 12/1/99, effective
1/1/00.]
WAC 392-172-23605 Services
provided. (1) The services provided to private school special education
students, as defined in WAC
392-172-232, must be provided by personnel meeting the same standards as
personnel providing services in the public schools.
(2) Private school special education students may receive a different amount
of services than special education students in public schools.
(3) No private school special education student is entitled to any service or
to any amount of a service the student would receive if enrolled in a public
school.
(4) Each private school special education student who has been designated to
receive services under WAC
392-172-23600 must have a services plan that describes the specific special
education and related services that the school district or other public agency
will provide to the student in light of the services that the district or agency
has determined, through the process described in WAC 392-172-23300 and 392-172-23600, it will make available
to private school special education students.
(5) The services plan must, to the extent appropriate:
(a) Meet the requirements of WAC
392-172-160 with respect to the services provided;
(b) Be developed, reviewed, and revised consistent with WAC 392-172-156, 392-172-158, and 392-172-161.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-23605, filed 12/1/99, effective
1/1/00.]
WAC 392-172-23610 Location of
services and transportation. (1) Services provided to private school special
education students, as defined in WAC
392-172-232, may be provided on-site at a student’s private school,
consistent with WAC 392-172-238.
(2) If necessary for the student to benefit from or participate in the
services provided under this section, a private school special education student
must be provided transportation:
(a) From the student’s school or the student’s home to a site other than the
private school; and
(b) From the service site to the private school, or to the student’s
home.
(3) School districts or other public agencies are not required to provide
transportation from the student’s home to the private school.
(4) The cost of the transportation described in subsection (2) of this
section may be included in calculating whether the school district or other
public agency has met the requirement of WAC 392-172-23305.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-23610, filed 12/1/99, effective
1/1/00.]
WAC 392-172-238 Service
arrangements. (1) Special education services to private school students may
be provided through such arrangements as dual enrollment pursuant to chapter
392-134 WAC.
(2) No services, material, or equipment of any nature shall be provided to or
on the site of any private school or agency subject to sectarian (i.e.,
religious) control or influence.
(3) Special education students enrolled in any private school or agency
subject to sectarian control or influence shall be provided services in a manner
that:
(a) Maintains a physical and administrative separation between the private
and the public school programs; and
(b) Does not benefit the private school at public expense, e.g., pursuant to
dual enrollment or shared time arrangements in accordance with chapter 392-134
WAC.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-238, filed 10/11/95, effective 11/11/95.]
WAC 392-172-239 Complaints.
(1) The procedures under WAC
392-172-350 et seq., do not apply to complaints that a school district or
other public agency has failed to meet the requirements of WAC 392-172-232 through 392-172-248, including the provision of
services indicated on the student’s individualized education program.
(2) The procedures under WAC
392-172-350 et seq. do apply to complaints that a school district or other
public agency has failed to meet the requirements under child find, including
evaluation and reevaluation procedures under this chapter.
(3) Complaints that the state, or a school district or other public agency,
has failed to meet the requirements of WAC
392-172-232 through 392-172-248
may be filed under the procedures in WAC
392-172-324 et seq.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-239, filed 12/1/99, effective
1/1/00.]
WAC 392-172-240 Personnel in
private schools and agencies. (1) School district or other public agency
personnel may be made available to nonsectarian private schools and agencies
only to the extent necessary to provide services required by the special
education student if those services are not normally provided by the private
school.
(2) Each school district or other public agency providing services to
students enrolled in nonsectarian private schools or agencies shall maintain
continuing administrative control and direction over those services.
(3) Services to private school special education students shall not include
the payment of salaries of teachers or other employees of private schools or
agencies, except for services performed outside regular hours of the school day
and under public supervision and control.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-240, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-240, filed 10/11/95, effective 11/11/95.]
WAC 392-172-242 Equipment,
property and supplies-Construction. (1) Equipment and supplies used with
special education students in a private school or agency may be placed on
nonsectarian private school or agency premises for the period of time necessary
for the program, but title to and administrative control over all equipment
property and supplies must be retained and exercised by the school district or
other public agency.
(2) Records shall be kept of equipment and supplies and an accounting made of
the equipment and supplies which shall assure that the equipment is used solely
for the purposes of the program. Equipment and supplies placed in private
schools must be able to be removed from the private school without remodeling
the private school facility.
(3) The equipment and supplies shall be removed from the private school or
agency if necessary to avoid its being used for other purposes or if it is no
longer needed for the purposes of the program or project.
(4) Funds shall not be used for repairs, minor remodeling, or to construct
facilities for private schools or agencies.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-242, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-242, filed 10/11/95, effective 11/11/95.]
WAC 392-172-244 Prohibition of
segregation. Programs or projects carried out in public facilities, and
involving joint participation by special education students otherwise enrolled
in private schools or agencies and special education students enrolled in public
schools, shall not include classes that are separated on the basis of school
enrollment or the religious affiliations of the students.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-244, filed 10/11/95, effective 11/11/95.]
WAC 392-172-246 Funds and property
not to benefit private schools. Public funds provided and property derived
from those funds shall not benefit any private school or agency.
A school district shall use funds provided under Part B of the IDEA to meet
the special education and related services needs of special education students
enrolled in private schools, but not for:
(1) The needs of a private school; or
(2) The general needs of the students enrolled in the private school.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-246, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-246, filed 10/11/95, effective 11/11/95.]
WAC 392-172-248 Existing level of
instruction. Provisions for serving private school special education
students shall not include the financing of the existing level of instruction in
a private school or agency.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055
(Order 95-11), § 392-172-248, filed 10/11/95, effective 11/11/95.]
Procedural Safeguards
WAC 392-172-300 General
responsibility of public agencies. Each school district and public agency
shall establish, implement and maintain procedural safeguards that meet the
requirements of 34 CFR 300.500 through 34 CFR 300.529.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-300, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-300, filed 10/11/95, effective 11/11/95.]
Notice Requirements-General
WAC 392-172-302 When prior written
notice must be given. A school district or other public agency shall give
prior written notice in accordance with WAC 392-172-306 to the parent(s) of a
student (or to the adult student) a reasonable time before the school district
or other public agency:
(1) Proposes or refuses to initiate or change the identification, evaluation,
educational placement of the student or provision of FAPE to the student.
(2) If the notice required under this section relates to an action proposed
by a district or other public agency that also requires parental consent under
WAC 392-172-185 and 392-172-304, notice may be given at the
same time parental consent is being requested.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-302, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-302, filed 10/11/95, effective 11/11/95.]
WAC 392-172-304 Parent
consent. (1) Informed parental consent must be obtained in writing (using
mediation if appropriate), or denial of consent must be overridden by a due
process hearing before:
(a) Conducting an initial evaluation, or reevaluation consistent with WAC 392-172-185; and
(b) Providing initial special education and any necessary related services to
a special education student.
(2) Consent for initial evaluation may not be construed as consent for
initial placement described in this section.
(3) Parental consent is not required before:
(a) Reviewing existing data as part of an evaluation or reevaluation; or
(b) Administering a test or other evaluation that is administered to all
students unless, before administration of that test or evaluation, consent is
required of parents of all students.
(4) A public agency may not use a parent’s refusal to consent to one service
or activity under this section to deny the parent or child any other service,
benefit, or activity of the public agency, except as required by this
chapter.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-304, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-304, filed 10/11/95, effective 11/11/95.]
WAC 392-172-306 Contents of prior
written notice. (1) The notice required by WAC 392-172-302 shall include:
(a) A statement that the parents of a special education student have
protection under the procedural safeguards of this chapter. If a copy of the
procedural safeguards are not included with the prior written notice, the
district or other public agency shall include a statement that describes the
means by which a copy of a description of the procedural safeguards can be
obtained;
(b) A description of the action proposed or refused by the school district or
other public agency, an explanation of why the district or other public agency
proposes or refuses to take the action, and a description of any other options
the district or other public agency considered and the reasons why those options
were rejected;
(c) A description of each evaluation procedure, test, record, or report the
district or other public agency used as a basis for the proposal or refusal;
(d) A description of any other factors which are relevant to the school
district and other public agency’s proposal or refusal;
(e) A description of any evaluation procedures the school district or other
public agency proposes to conduct; and
(f) Sources for parents to contact to obtain assistance in understanding the
procedural safeguards provisions of this chapter.
(2) The notice shall be:
(a) Written in language understandable to the general public; and
(b) Provided in the native language of the parent or adult student or other
mode of communication used by the parent or adult student, unless it is clearly
not feasible to do so.
(3) If the native language or other mode of communication
of the parent or adult student is not a written language, the district or other
public agency shall take steps to assure that:
(a) The notice is translated orally or by other means to the parent or adult
student in his or her native language or other mode of communication;
(b) The parent or adult student understands the content of the notice;
and
(c) There is written evidence that the requirements in (a) and (b) of this
subsection have been met.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-306, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-306, filed 10/11/95, effective 11/11/95.]
WAC 392-172-307 Procedural
safeguards. (1) A copy of the procedural safeguards available to the parents
of a special education student shall be given to the parents, at a minimum:
(a) Upon initial referral for evaluation;
(b) Upon each notification of an individualized education program
meeting;
(c) Upon reevaluation of the student;
(d) Upon receipt of a request for due process; and
(e) Upon notification of a parent that a school district or other public
agency intends to take disciplinary action that constitutes a change of
placement.
(2) The procedural safeguards notice must include a full explanation of all
of the procedural safeguards available, listed in 34 CFR 300.504 (4)(b),
including and relating to:
(a) Independent educational evaluation;
(b) Prior written notice;
(c) Parental consent;
(d) Access to educational records;
(e) Opportunity to present complaints to initiate due process hearings;
(f) The student’s placement during pendency of due process proceedings;
(g) Procedures for students who are subject to placement in an interim
alternative educational setting;
(h) Requirements for unilateral placement by parents of students in private
schools at public expense;
(i) Mediation;
(j) Due process hearings, including requirements for disclosure of evaluation
results and recommendations;
(k) Civil actions;
(l) Attorneys’ fees; and
(m) State complaint procedures, including a description of how to file a
complaint and the timelines under those procedures.
(3) The notice shall meet the requirements of WAC 392-172-306 (2) and (3).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-307, filed 12/1/99, effective
1/1/00.]
Surrogate Parents
WAC 392-172-308 Surrogate
parents. (1) Each school district or other public agency providing a special
education program to a nonadult special education student shall assure that the
rights of the nonadult student are protected when:
(a) No parent, as defined in WAC
392-172-035(5), can be identified;
(b) The school district or other public agency, after reasonable efforts,
cannot discover the whereabouts of a parent; or
(c) The student is a ward of the state. A student is a ward of the state if (i) parental rights have been terminated and no guardian has been appointed or
(ii) the student is found dependent under chapter 13.34 RCW. If the child is
found dependent and is placed with the parent or with relatives, those persons
may be considered a parent under the definition of WAC 392-172-035(5).
(2) The duty of a school district or other public agency under this section
includes the assignment of a person to act as a surrogate for the parents. This
duty includes the establishment of a method:
(a) For determining whether a nonadult student needs a surrogate parent;
and
(b) For assigning a surrogate parent to the student.
(3) Each school district or other public agency shall ensure that a person
selected as a surrogate:
(a) Has no interest that conflicts with the interests of the student he or
she represents; and
(b) Has knowledge and skills that assure adequate representation of the
student.
(4) (a) A person assigned as a surrogate may not be an employee of the office
of superintendent of public instruction, a school district or other public
agency which is involved in the education or care of the student; and
(b) A person who otherwise qualifies as a surrogate parent pursuant to this
section is not an "employee" of the school district or other public agency
solely because he or she is paid by the school district and/or agency to serve
as a surrogate parent.
(c) A public agency may select as a surrogate, a person who is an employee of
a nonpublic agency that only provides noneducational care for the student and
who meets the standards in subsection (3) of this section.
(d) A foster parent may be appointed as a surrogate parent if he or she meets
the qualifications of subsection (3) of this section and is willing to make
educational decisions on behalf of the student.
(5) Responsibilities. A surrogate parent may represent the student in all
matters relating to the identification, evaluation, educational placement of the
student and the provision of FAPE to the student.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-308, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-308, filed 10/11/95, effective 11/11/95.]
WAC 392-172-309 Transfer of
parental rights at age of majority. (1) Consistent with RCW 26.28.010 and
26.28.015, when a special education student reaches the age of eighteen, unless
declared incapacitated as to person under chapter 11.88 RCW, the following shall
occur:
(a) A school district or other public agency shall provide any notice
required under the chapter to both the student and the parents; and
(b) All other rights accorded to parents under Part B of the Individuals with
Disabilities Education Act transfer to the student.
(2) All rights accorded to parents under Part B of the Individuals with
Disabilities Education Act transfer to students at the age of majority who are
incarcerated in an adult or juvenile, state, or local correctional
institution.
(3) Whenever a school district or other public agency transfers rights under
this section, they shall notify the individual and the parents of the transfer
of rights.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-309, filed 12/1/99, effective
1/1/00.]
Mediation
WAC 392-172-310 Mediation-Purpose.
The purpose of mediation is to offer both the parent and the school district or
other public agency an optional alternative to a formal due process hearing.
Mediation requires the consent and agreement of both parties. Mediation cannot
be used to deny or delay access by a parent to a due process hearing under this
chapter, or to deny any other rights afforded under this chapter. Mediation is
used to resolve disagreements concerning the identification, evaluation,
educational placement of the special education student or provision of FAPE to
the special education student. Mediation may be terminated by either party at
any time during the process. Mediation shall be available whenever a hearing is
requested under this chapter.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-310, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-310, filed 10/11/95, effective 11/11/95.]
WAC 392-172-312 Mediation-Definition.
Mediation is a dispute resolution process in which an impartial mediator assists
both parties in reaching a mutually acceptable agreement on the educational
needs of a special education student. The primary participants in the mediation
process are the parent(s), school district or other public agency
representative(s), and mediator. The process is voluntary, confidential, and
informal. It is a collaborative process, conducted in a nonadversarial manner.
Mediation services are provided by the office of superintendent of public
instruction at no cost to either party, including the costs of meetings
described in WAC 392-172-317. The
office of superintendent of public instruction will provide mediation services
for individuals whose primary language is not English unless it is clearly not
feasible to do so. Each session in the mediation process shall be scheduled in a
timely manner and shall be held in a location that is convenient to the parties
to the dispute.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-312, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-312, filed 10/11/95, effective 11/11/95.]
WAC 392-172-313 Mediators-Qualified and
impartial. (1) Mediation is conducted by qualified and impartial mediators
who are trained in effective mediation techniques.
(2) The office of superintendent of public instruction shall maintain a list
of individuals who are qualified mediators and knowledgeable in laws and
regulations relating to the provision of special education and related
services.
(3) An individual who serves as a mediator:
(a) May not be an employee of:
(i) Any school district or any state agency described under WAC 392-172-035(6); or
(ii) A state education agency that is providing direct services to a student
who is the subject of the mediation process; and
(b) Shall not have a personal or professional conflict of interest.
(4) A person who otherwise qualifies as a mediator is not an employee of a
school district or other public agency solely because he or she is paid by the
agency to serve as a mediator.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-313, filed 12/1/99, effective
1/1/00.]
WAC 392-172-314 Request for
mediation services. (1) To access the state-wide mediation system, a request
for mediation services may be made in writing or verbally to administrative
agents for the office of superintendent of public instruction. Written
confirmation of the request shall be provided to both parties by an intake
coordinator and a mediator shall be assigned to the case.
(2) If a mediator is not selected on a random (e.g., a rotation) basis from
the list described in WAC 392-172-313,
both parties must be involved in selecting the mediator and agree with the
selection of the individual who will mediate.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-314, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-314, filed 10/11/95, effective 11/11/95.]
WAC 392-172-316 Written mediation
agreement-Mediation discussions. (1) Agreements reached through the
mediation process shall be documented in writing and signed by both parties.
Solutions to the issue(s) raised through the mediation process shall not be in
conflict with state and federal laws or regulations. The parties shall be given
a copy of the written mediation agreement. A copy of the mediation agreement
shall also be filed by the mediator with the office of superintendent of public
instruction.
(2) Discussions that occur during the mediation process must be confidential
and may not be used as evidence in any subsequent due process hearings or civil
proceedings, and the parties to and participants in the mediation process may be
required to sign a confidentiality pledge prior to the commencement of the
process.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-316, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-316, filed 10/11/95, effective 11/11/95.]
WAC 392-172-317 Meeting to
encourage mediation. (1) A school district or other public agency may
establish procedures to require parents who elect not to use the mediation
process to meet, at a time and location convenient to the parents, with a
disinterested party:
(a) Who is under contract with a parent training and information center or
community parent resource center in the state established under the Individuals
with Disabilities Education Act or an appropriate alternative dispute resolution
entity; and
(b) Who would explain the benefits of the mediation process, and encourage
the parents to use the process.
(2) A school district or other public agency may not deny or delay a parent’s
right to a due process hearing under this chapter if the parent fails to
participate in the meeting described in this section.
(3) A school district or other public agency shall submit its procedures for
implementing this section to the office of superintendent of public instruction
for review and approval, including projected costs for carrying out the
process.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-317, filed 12/1/99, effective
1/1/00.]
Citizen Complaint Process
WAC 392-172-324 Definition-Complaint.
As used in this chapter, the term "complaint" means an allegation, by the
complainant, that the state, a local school district or other public agency, an
educational service district, or other subgrantee receiving federal funds (or
receiving state funds to carry out a federal requirement), including private
schools and facilities where students are placed on a contractual basis, has
violated a federal statute or regulation or a state regulation that applies to a
federal program covered under this chapter.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-324, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-324, filed 10/11/95, effective 11/11/95.]
WAC 392-172-326 Definition-Other
subgrantee. As used in this chapter, the term "other subgrantee" means the
government, for profit or nonprofit, or other legal entity to which the state as
grantee awards a subgrant or the district or public agency grants a contract,
and which is accountable to the state for the use of the funds provided. The
subgrantee is the entire legal entity even if only a particular component of the
entity is designated in the subgrant award document.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-326, filed 10/11/95, effective 11/11/95.]
WAC 392-172-328 Informing citizens
about complaint procedures. The superintendent of public instruction shall
inform parents and other interested individuals about the citizen complaint
procedures in this chapter. Specific actions to be taken by the superintendent
of public instruction include:
(1) Widely disseminating copies of the state’s procedures to parents and
other interested individuals, including protection and advocacy agencies, parent
training and information centers, independent living centers, and other
appropriate entities;
(2) Conducting in-service training sessions on the complaint process through
educational service districts; and
(3) Including information about the system in state-wide conferences.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-328, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-328, filed 10/11/95, effective 11/11/95.]
WAC 392-172-329 Remedies for
denial of appropriate services. In resolving a complaint in which it has
found a failure to provide appropriate services, the office of the
superintendent of public instruction pursuant to its general supervisory
authority under Part B of the IDEA, must address:
(1) How to remediate the denial of those services, including, as appropriate,
the awarding of monetary reimbursement or other corrective action appropriate to
the needs of the student; and
(2) Appropriate future provision of services for all special education
students.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-329, filed 12/1/99, effective
1/1/00.]
WAC 392-172-330 Right to register
a complaint. Any individual or organization, including an organization or
individual from another state, may register a signed written complaint.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-330, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-330, filed 10/11/95, effective 11/11/95.]
WAC 392-172-332 Contents of
complaint. (1) A written complaint filed under this chapter shall
include:
(a) A statement that an educational entity, which includes the state, a local
school district or other public agency, an educational service district, or
other subgrantee has violated one or more requirements of federal statutes or
regulations or state regulations that apply to Part B of the IDEA;
(b) The facts on which the statement is based;
(c) The name and address of the complainant; and
(d) The name and address of the educational entity.
(2) The complaint must be signed.
(3) The complaint must allege a violation that occurred not more than one
year prior to the date that the complaint is received unless a longer period is
reasonable because the violation is continuing, or the complainant is requesting
compensatory services for a violation that occurred not more than three years
prior to the date the complaint is received.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-332, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-332, filed 10/11/95, effective 11/11/95.]
WAC 392-172-334 Procedure for
filing a complaint. The procedure for filing a complaint shall be as
follows:
(1) All complaints alleging a violation by a local school district or other
public agency, an educational service district, the state or other subgrantee
shall be filed directly with the superintendent of public instruction.
(2) The superintendent of public instruction, upon receipt of a signed,
written complaint against a local school district or other public agency, an
educational service district, or other subgrantee, shall refer the complaint to
the educational entity for action pursuant to this chapter. A complaint against
the state shall be investigated pursuant to WAC 392-172-344.
(3) Receipt of a complaint by the superintendent of public instruction
activates a time limit not to exceed sixty calendar days unless an extension of
the time limit is approved by the superintendent of public instruction on the
basis of exceptional circumstances relative to a particular complaint.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-334, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-334, filed 10/11/95, effective 11/11/95.]
WAC 392-172-336 Designation of
responsible employee. The chief officer of each local school district or
other public agency, an educational service district, or other subgrantee shall
designate at least one employee to monitor and coordinate the entity’s
compliance with this chapter. Such employee shall also be charged with the
responsibility for investigating any complaint(s) communicated to the
superintendent of public instruction pursuant to WAC 392-172-334.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-336, filed 10/11/95, effective 11/11/95.]
WAC 392-172-338 Investigation of
and response to complaints against a school district or other public agency,
educational service district, or other subgrantee. Investigation of and
response to a complaint shall be as follows:
(1) Upon receipt of a properly filed complaint, the superintendent of public
instruction shall send a copy of the complaint to the educational entity, for
their investigation of the alleged violations.
(2) The educational entity shall investigate the complaint. The responsible
official of the educational entity shall respond in writing to the
superintendent of public instruction, and include documentation of the
investigation, no later than twenty calendar days after the date of receipt by
the entity of such complaint.
(3) The response to the superintendent of public instruction shall clearly
state either:
(a) That the educational entity denies the allegations contained in the
complaint and the basis for such denial; or
(b) Proposes reasonable corrective action(s) deemed necessary to correct the
violation.
(4) Upon request, the superintendent of public instruction shall provide the
complainant a copy of the entity’s response to the complaint.
(5) The superintendent of public instruction will provide the complainant the
opportunity to submit additional information, either orally or in writing, about
the allegations in the complaint.
(6) Within thirty calendar days, and upon review of all relevant information
including, if necessary, information obtained through an independent on-site
investigation by the superintendent of public instruction, the superintendent of
public instruction will make an independent determination as to whether the
public agency is violating a requirement of Part B of the Individuals with
Disabilities Education Act or of this chapter.
(7) Consistent with the provisions of WAC 392-172-320 through 392-172-346, the superintendent of public
instruction shall issue a written decision to the complainant that addresses
each allegation in the complaint including findings of fact, conclusions and the
reasonable corrective measures deemed necessary to correct any violation.
Corrective measures necessary to resolve a complaint shall be instituted as soon
as possible but in no event later than thirty calendar days following the date
of the decision, unless otherwise agreed to, or for good cause.
(8) If compliance by a local school district or other public agency,
educational service district, or other subgrantee is not achieved pursuant to
subsection (7) of this section, the superintendent of public instruction shall
initiate fund withholding, fund recovery, or any other sanction deemed
appropriate.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-338, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-338, filed 10/11/95, effective 11/11/95.]
WAC 392-172-342 Complaints against
the superintendent of public instruction-Designation of responsible
employee(s). A complaint alleging a violation by the superintendent of
public instruction shall be filed directly with the superintendent of public
instruction in the form specified in WAC
392-172-332.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-342, filed 10/11/95, effective 11/11/95.]
WAC 392-172-344 Complaints against
the superintendent of public instruction-Investigation of and response to
complaints. (1) The staff responsible for investigating the alleged
violation shall commence investigation within ten days of receipt of the
complaint by the superintendent of public instruction.
(2) Investigation by the superintendent of public instruction may include
on-site investigations as appropriate.
(3) Upon completion of the investigation, investigating staff shall provide
the superintendent of public instruction with a written report on the results of
the investigation.
(4) The superintendent of public instruction shall respond in writing to the
complainant as soon as possible but in no event later than sixty calendar days
after the date of receipt of such complaint by the superintendent of public
instruction.
(5) The response shall clearly state either:
(a) That the complaint is without merit, the allegations are denied, and the
basis for such denial; or
(b) The reasonable corrective measures deemed necessary to correct any
violation. Any such corrective measures deemed necessary shall be instituted as
soon as possible but in no event later than thirty calendar days following the
date of the response to the complainant.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-344, filed 10/11/95, effective 11/11/95.]
WAC 392-172-348 Complaints and due
process hearings. (1) If a written complaint is received that is also the
subject of a due process hearing under this chapter or contains multiple issues,
of which one or more are part of that hearing, the office of the superintendent
of public instruction must set aside any part of the complaint that is being
addressed in the due process hearing, until the conclusion of the hearing.
However, any issue in the complaint that is not a part of the due process action
must be resolved using the time limit and procedures described in this
section.
(2) If an issue is raised in a complaint filed under this section that has
previously been decided in a due process hearing involving the same parties:
(a) The hearing decision is binding; and
(b) The office of the superintendent of public instruction must inform the
complainant to that effect.
(3) A complaint alleging a public agency’s failure to implement a due process
decision must be resolved by the office of the superintendent of public
instruction.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-348, filed 12/1/99, effective
1/1/00.]
Hearings-General
WAC 392-172-350 Right to
initiate-Purposes. (1) Hearings conducted in accordance with WAC 392-172-350
through 392-172-360 may be initiated
in the following cases for the purposes stated:
(a) The parent(s) of a student (or an adult student) or a school district or
other public agency may initiate a hearing to challenge or to show the
appropriateness of a proposal or refusal by the school district or other public
agency to initiate or change:
(i) The identification of the student;
(ii) The evaluation of the student;
(iii) The educational placement of the student; or
(iv) The provision of FAPE to the student pursuant to this chapter;
(b) A school district or other public agency may initiate a hearing to show
that its evaluation of a student is appropriate if the student’s parent(s) or
adult student disagrees with the evaluation results and requests an independent
educational evaluation, pursuant to WAC
392-172-150.
(2) A request by a student’s parent(s) or adult student for a hearing
pursuant to this section shall:
(a) Be in writing, specify the district or other public agency and the school
the student attends, explain the concerns of the parent(s) or adult student in
general or specific terms, and provide other information regarding the request
for hearing described in WAC
392-172-351; and
(b) Be mailed or provided directly to the Office of Superintendent of Public
Instruction, Office of Legal Services, Old Capitol Building, P.O. Box 47200,
Olympia, Washington 98504. A copy of the request for hearing should also be
given to the district or other public agency, consistent with WAC 392-172-351.
(3) A request by a school district or other public agency for a hearing
pursuant to this section shall:
(a) Be in writing;
(b) Be mailed or provided directly to Office of Superintendent of Public
Instruction, Office of Legal Services, Old Capitol Building, P.O. Box 47200,
Olympia, Washington 98504. A copy of such request, including attachments shall
be mailed to the student’s parent(s) or adult student;
(c) Include a copy of the notice to parent(s) or adult student as required by
WAC 392-172-302. If the hearing
request by the district or other public agency is in response to a request for
an independent educational evaluation pursuant to WAC 392-172-150, the school district or
other public agency shall attach documentation of the parent’s request.
(4) A notice of a hearing requested by a student’s parent(s) or adult student
or initiated by a school district or other public agency pursuant to this
section shall be provided by the hearing officer and shall include, but not
necessarily be limited to:
(a) The date, time, and place of the hearing;
(b) The issues to be addressed at the hearing to the extent the issues have
been identified at the time of the notice;
(c) The rights, procedures, and other matters set forth in WAC 392-172-352 through 392-172-364; and
(d) The right of the parent(s) or adult student to seek an independent
evaluation at public expense pursuant to WAC 392-172-150.
(5) The forty-five day time line for completing the hearing process shall
begin on the day the superintendent receives the written request for a due
process hearing.
(6) When a hearing is initiated under this section, the office of
superintendent of public instruction shall inform the parents of the
availability of mediation described in WAC
392-172-310 et seq.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-350, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-350, filed 10/11/95, effective 11/11/95.]
WAC 392-172-351 Request for
hearing, notice by parent. (1) The school district or other public agency
must have procedures that require the parent of a special education student or
the attorney representing the student to provide notice (which must remain
confidential) to the school district or other public agency in a request for a
hearing to the office of superintendent of public instruction. The notice for a
request for hearing must include:
(a) The name of the student;
(b) The address of the residence of the student;
(c) The name of the school the student is attending;
(d) A description of the nature of the problem of the student relating to the
proposed initiation or change, including facts relating to the problem; and
(e) A proposed resolution of the problem to the extent known and available to
the parents at the time.
(2) The office of superintendent of public instruction shall develop a model
hearing request form to assist parents in filing a request for a due process
hearing that includes the information required above.
(3) A school district or other public agency may not deny or delay a parent’s
right to a due process hearing for failure to provide the notice required in
this section. However, failure to
provide the notice required in subsection (1) of this section may result in a
reduction of attorneys’ fees under WAC
392-172-362 (3)(e)(iv).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-351, filed 12/1/99, effective
1/1/00.]
WAC 392-172-352 Hearing
officers-Selection and expenses of-Parent assistance. (1) If a hearing is
initiated pursuant to WAC
392-172-350:
(a) The hearing shall be conducted by and at the expense of the
superintendent of public instruction.
(b) The superintendent of public instruction shall provide for a court
reporter’s stenographic record of all testimony and other oral hearing
proceedings at the expense of the superintendent of public instruction: A court
reporter’s stenographic record need not be transcribed for any purpose except as
provided or required in WAC 392-172-354 (1)(g) and (h).
(c) The superintendent of public instruction shall inform the parent(s) or
adult student of any free or low-cost legal and other relevant services
available in the area if:
(i) The parent or adult student requests the information; or
(ii) The school district or other public agency or the parent or adult
student initiates a hearing.
(d) The hearing shall be conducted by a qualified person selected and
appointed by the chief administrative law judge in the office of administrative
hearings pursuant to chapter 10-08 WAC and shall be a person who:
(i) Is not an employee of a public agency which is involved in the education
or care of the student; and
(ii) Does not have a personal or professional interest which would conflict
with his or her objectivity in the hearing.
(2) A person who otherwise qualifies to conduct a hearing under this section
is not an employee of the public agency solely because he or she is paid by the
agency to serve as a hearing officer.
(3) The hearing shall be conducted in accordance with the provisions of WAC
392-101-005 unless modified by this chapter.
(4) Each public agency shall keep a list of the persons who serve as hearing
officers. The list must include a statement of the qualifications of each of
those persons.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-352, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-352, filed 10/11/95, effective 11/11/95.]
WAC 392-172-354 Hearing
rights. (1) Any party to a hearing initiated pursuant to WAC 392-172-350 has the right to:
(a) Be accompanied and advised by persons with special knowledge or training
with respect to the problems of special education students;
(b) Be advised and/or represented by an attorney;
(c) Present evidence, including the opinion(s) of qualified experts,
confront, cross-examine, and compel the attendance of witnesses;
(d) Prohibit the introduction of any evidence at the hearing that has not
been disclosed to that party at least five business days before the hearing, or
two business days if the hearing is expedited pursuant to WAC 392-172-38415 (1)(b);
(e) At least five business days (or two business days if the hearing is
expedited pursuant to WAC
392-172-38415 (1)(b)) prior to a hearing conducted pursuant to this section,
each party shall disclose to all other parties all evaluations completed by that
date and recommendations based on the offering party’s evaluations that the
party intends to use at the hearing;
(f) A hearing officer may bar any party that fails to comply with (e) of this
subsection from introducing the relevant evaluation or recommendation at the
hearing without the consent of the other party;
(g) Obtain a written, or at the option of the parents,
electronic verbatim record of the hearing at no cost to any party to a hearing;
and
(h) Obtain written, or at the option of the parents,
electronic findings of fact, decisions, conclusions of law and judgments. The
state, after deleting any personally identifiable information, shall:
(i) Transmit those findings and decisions to the state advisory panel
established under this chapter; and
(ii) Make those findings and decisions available to the public.
(2) Parents who are a party to a hearing have the right to have the student
who is the subject of the hearing present.
(3) Parents (or adult students) who are a party to a hearing have the right
to open the hearing to the public.
(4) The record of the hearing and the findings of fact and decisions
described in this section shall be provided at no cost to parents.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-354, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-354, filed 10/11/95, effective 11/11/95.]
WAC 392-172-356 Time line for
hearing officer’s decision-Time and place of hearing. (1) Not later than
forty-five days after the date of receipt of a request for a hearing pursuant to
WAC 392-172-350:
(a) A final decision shall be reached in the hearing; and
(b) A copy of the decision shall be mailed to each of the parties.
(2) A hearing officer may grant specific extensions of time beyond the period
set forth in subsection (1) of this section at the request of the parent(s) or
school district or other public agency.
(3) Each hearing shall be conducted at a time and place which is reasonably
convenient to the parent(s) and student involved.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-356, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-356, filed 10/11/95, effective 11/11/95.]
WAC 392-172-360 Final
decision-Appeal to court of law. (1) A decision made in a hearing initiated
pursuant to WAC 392-172-350 is final, unless modified or overturned by a court
of law. Any party aggrieved by the findings and decision made in a hearing who
does not have the right to appeal under this chapter has the right to bring a
civil action under section 615 (e)(2) of the Individuals with Disabilities
Education Act. A civil action may be filed in either state or federal court.
(2) In any action brought under this section, the court:
(a) Shall receive the records of the administrative proceedings.
(b) Shall hear additional evidence at the request of a party.
(c) Shall grant the relief that the court determines to be appropriate basing
its decision on the preponderance of the evidence.
(3) The district courts of the United States have jurisdiction of actions
brought under section 615 of the Individuals with Disabilities Education Act
without regard to the amount in controversy.
(4) Nothing in this part restricts or limits the rights, procedures, and
remedies available under the Constitution, the Americans with Disabilities Act
of 1990, Title V of the Rehabilitation Act of 1973, or other Federal laws
protecting the rights of special education students, except that before the
filing of a civil action under these laws seeking relief that is also available
under section 615 of the Individuals with Disability Education Act, the
procedures for a due process hearing in this chapter must be exhausted to the
same extent as would be required had the action been brought under section 615
of the Individuals with Disabilities Education Act.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-360, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-360, filed 10/11/95, effective 11/11/95.]
WAC 392-172-362 Attorneys’
fees. (1) Each public agency shall inform parents that in any action or
proceeding under section 615 of the Individuals with Disabilities Education Act,
courts in their discretion, may award parents reasonable attorneys’ fees as part
of the costs to the parents of a special education student who is the prevailing
party.
(2) Funds under Part B of the Individuals with Disabilities Education Act may
not be used to pay attorneys’ fees or costs of a party related to an action or
proceeding under section 615 of the IDEA and the procedural safeguards in this
chapter. This does not preclude a public agency from using funds under Part B of
the IDEA for conducting an action or proceeding under section 615 of the
IDEA.
(3) A court awards reasonable attorneys’ fees under section 615 (i)(3) of the
IDEA consistent with the following:
(a) Fees awarded under section 615 (i)(3) of the IDEA must be based on rates
prevailing in the community in which the action or proceeding arose for the kind
and quality of services furnished. No bonus or multiplier may be used in
calculating the fees awarded under this section.
(b) Attorneys’ fees may not be awarded and related costs may not be
reimbursed in any action or proceeding under section 615 of the IDEA for
services performed subsequent to the time of a written offer of settlement to a
parent if:
(i) The offer is made within the time prescribed by Rule 68 of the Federal
Rules of Civil Procedure or, in the case of an administrative proceeding, at any
time more than ten days before the proceeding begins;
(ii) The offer is not accepted within ten days; and
(iii) The court or administrative hearing officer finds that the relief
finally obtained by the parents is not more favorable to the parents than the
offer of settlement.
(c) Attorneys’ fees may not be awarded relating to any meeting of the IEP
team unless the meeting is convened as a result of an administrative proceeding
or judicial action.
(d) Notwithstanding (b) of this subsection, an award of attorneys’ fees and
related costs may be made to a parent who is the prevailing party and who was
substantially justified in rejecting the settlement offer.
(e) Except as provided in (f) of this subsection, the court reduces,
accordingly, the amount of the attorneys’ fees awarded under section 615 of the
IDEA, if the court finds that:
(i) The parent, during the course of the action or proceeding, unreasonably
protracted the final resolution of the controversy;
(ii) The amount of the attorneys’ fees otherwise authorized to be awarded
unreasonably exceeds the hourly rate prevailing in the community for similar
services by attorneys of reasonably comparable skill, reputation, and
experience;
(iii) The time spent and legal services furnished were excessive considering
the nature of the action or proceeding; or
(iv) The attorney representing the parent did not
provide to the school district the appropriate information in the due process
complaint in accordance with WAC
392-172-351.
(f) The provisions of (e) of this subsection do not apply in any action or
proceeding if the court finds that the state or local agency unreasonably
protracted the final resolution of the action or proceeding or there was a
violation of section 615 of the IDEA.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-362, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-362, filed 10/11/95, effective 11/11/95.]
WAC 392-172-364 Student’s status
during hearing and judicial review processes. (1) Except as provided in WAC 392-172-370 through 392-172-385, during the pendency of any
administrative or judicial proceeding regarding a hearing request initiated
pursuant to WAC 392-172-350 unless the
school district or other public agency and the parent(s) of the student or the
adult student agree otherwise, the student involved in the hearing request shall
remain in the educational program he or she was in at the time the hearing
request was made.
(2) If the complaint involves an application for initial admission to public
school, the student, with the consent of the parents, must be placed in the
public school until the completion of all the proceedings.
(3) If the decision of a hearing officer in a due process hearing agrees with
student’s parents that a change of placement is appropriate, that placement must
be treated as an agreement between the state, school district or other public
agency and the parents for purposes of this section.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-364, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-364, filed 10/11/95, effective 11/11/95.]
Disciplinary Exclusion
WAC 392-172-370 Disciplinary
exclusion-Purpose. The purpose of WAC
392-172-370 through 392-172-385 is
to ensure that special education students are not being improperly excluded from
school for disciplinary reasons. Each school district or other public agency,
educational service district and public agency serving special education
students shall take steps to ensure that each employee, contractor, and other
agent of the district or other public agency responsible for education or care
of a special education student is knowledgeable of WAC 392-172-370 through 392-172-385. No school district or other
public agency and no educational service district shall authorize, permit, or
condone the use of disciplinary procedures which violate chapter 180-40 WAC and
WAC 392-172-370 through 392-172-385 by any employee, contractor,
or other agent of the district or other public agency responsible for the
education or care of a special education student.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-370, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-370, filed 10/11/95, effective 11/11/95.]
WAC 392-172-371 Disciplinary
exclusion-Definitions. The following definitions apply to this section
only:
(1) "Controlled substance" means a drug or other substance identified under
schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances
Act (21 U.S.C. 812(c)).
(2) "Illegal drug" means a controlled substance, but does not include, a
substance that is legally possessed or used under the supervision of a licensed
health-care professional or that is legally possessed or used under any other
authority under the Controlled Substances Act or under any other provision of
federal law.
(3) "Dangerous weapon" means a weapon, device, instrument, material, or
substance, animate or inanimate, that is used for, or is readily capable of,
causing death or serious bodily injury, except that such term does not include a
pocket knife with a blade of less than two and one-half inches in length.
(4) "Substantial evidence" means beyond a preponderance of the evidence.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-371, filed 12/1/99, effective
1/1/00.]
WAC 392-172-373 Change of
placement for disciplinary removals. For purposes of removals of a special
education student from the student’s current educational placement under WAC 392-172-370 through 392-172-38410, a change of placement
occurs if:
(1) The removal is for more than ten consecutive school days; or
(2) The student is subjected to a series of removals that
constitute a pattern because they cumulate to more than ten school days in a
school year, and because of factors such as the length of each removal, the
total amount of time the student is removed, and the proximity of the removals
to one another.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-373, filed 12/1/99, effective
1/1/00.]
WAC 392-172-37500 Removals-Ten
school days or less. To the extent removal would be applied to students
without disabilities, school personnel may order the removal of a special
education student from the student’s current placement for not more than ten
consecutive school days for any violation of school rules, and additional
removals of not more than ten
consecutive school days in that same school year for separate incidents of
misconduct as long as those removals do not constitute a change of placement
under WAC 392-172-373(2).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-37500, filed 12/1/99, effective
1/1/00.]
WAC 392-172-37505 Required
services. (1) A public agency need not provide services during periods of
removal under WAC 392-172-37500 to a
special education student who has been removed from his or her current placement
for ten school days or less in that school year, if services are not provided to
a student without disabilities who has been similarly removed.
(2) In the case of a special education student who has been removed from his
or her current placement for more than ten school days in that school year, the
public agency, for the remainder of the removals, shall provide services to the
extent necessary to enable the student to appropriately progress in the general
curriculum and appropriately advance toward achieving the goals set out in the
student’s IEP.
(3) When there is no change of placement, school personnel, in consultation
with the student’s special education teacher, determine the extent to which
services are necessary to enable the student to appropriately progress in the
general curriculum and appropriately advance toward achieving the goals set out
in the student’s IEP.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-37505, filed 12/1/99, effective
1/1/00.]
WAC 392-172-37510 Change of
placement-Removals for weapons or drugs. School personnel may order a change
in placement of a special education student to an appropriate interim
alternative educational setting for the same amount of time that a student
without a disability would be subject to discipline, but for not more than
forty-five days, if:
(1) The student possesses a weapon, or carries a weapon to school or to a
school function under the jurisdiction of a state or local education agency;
or
(2) The student knowingly possesses or uses illegal drugs or sells or
solicits the sale of a controlled substance while at school or a school function
under the jurisdiction of a state or local educational agency.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-37510, filed 12/1/99, effective
1/1/00.]
WAC 392-172-377 Functional
behavioral assessment and intervention plan. Within ten business days after
first removing a student for more than ten school days in a school year,
including weapons violations, drugs violations, or behavior that is
substantially likely to result in injury to the student or to others, the
following actions shall be taken by the school district or other public
agency:
(1) If the district or other public agency did not conduct a functional
behavioral assessment and implement a behavioral intervention plan for the
student before the behavior that resulted in the removal occurred, the district
or other public agency shall convene an individualized education program meeting
to develop an assessment plan.
(2) If the student already has a behavioral intervention plan, the
individualized education program team shall meet to review the plan and its
implementation and modify it, as necessary, to address the behavior.
(3) As soon as practicable after developing the plan described in subsection
(1) of this section, and completing the assessments required by the plan, the
district or other public agency shall convene an IEP meeting to develop
appropriate behavioral interventions to address that behavior and shall
implement those interventions.
(4) If subsequently, a special education student who has a behavioral
intervention plan and who has been removed from the student’s current
educational placement for more than ten school days in a school year is
subjected to a removal that does not constitute a change of placement under WAC 392-172-373, the IEP team members
shall review the behavioral intervention plan and its implementation to
determine if modifications are necessary.
If one or more of the team members believe that modifications are needed, the
team shall meet to modify the plan and its implementation, to the extent the
team determines necessary.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-377, filed 12/1/99, effective
1/1/00.]
WAC 392-172-379 Dangerous
behavior-Authority of hearing officer. A hearing officer, described in WAC 392-172-352, may order a change in
the placement of a special education student to an appropriate interim
alternative educational setting for not more than forty-five days if the hearing
officer, in an expedited due process hearing:
(1) Determines that the district or other public agency has demonstrated by
substantial evidence that maintaining the current placement of the student is
substantially likely to result in injury to the student or to others;
(2) Considers the appropriateness of the student’s current placement;
(3) Considers whether the district or other public agency has made reasonable
efforts to minimize the risk of harm in the student’s current placement,
including the use of supplementary aids and services; and
(4) Determines that the interim alternative educational setting that is
proposed by school personnel who have consulted with the student’s special
education teacher meets the requirements of WAC 392-172-381 (1) and (2).
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-379, filed 12/1/99, effective
1/1/00.]
WAC 392-172-381 Determination of
interim alternative educational setting. Any interim alternative educational
setting in which a student is placed under WAC 392-172-37510 and 392-172-379 shall:
(1) Be selected so as to enable the student to continue to
progress in the general curriculum, although in another setting, and to continue
to receive those services and modifications, including those described in the
student’s current individualized education program, that will enable the student
to meet the goals set out in that individualized education program; and
(2) Include services and modifications designed to address
the behavior described in WAC
392-172-37510 and 392-172-379,
that are designed to prevent the behavior from recurring.
The individualized education program team shall determine an interim
alternative educational setting under WAC 392-172-37510.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-381, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38300 Manifestation
determination review requirements. If an action is contemplated by a school
district, other public agency personnel, or a hearing officer that involves
removing a student for weapons violations, drugs violations, behavior that is
substantially likely to result in injury to the student or to others, or other
behavior that violates any rule or code of conduct that applies to all students
which results in a change of placement under WAC 392-172-373, the following actions
shall be taken by the school district or other public agency:
(1) Not later than the date on which the decision to remove the student is
made, the parents must be notified of that decision and provided the procedural
safeguards notice described under this chapter; and
(2) Immediately, if possible, but in no case later than ten school days after
the date on which the decision to remove the student is made, a review must be
conducted of the relationship between the student’s disability and the behavior
subject to the disciplinary action.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38300, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38305 Procedures for
conducting a manifestation determination. The individualized education
program team and other qualified personnel in a meeting shall conduct a
manifestation determination review. In carrying out the review, the team may
determine that the behavior of the student was not a manifestation of the
student’s disability only if the team:
(1) First considers, in terms of the behavior subject to disciplinary action,
all relevant information including:
(a) Evaluation and diagnostic results, including the results of other
relevant information supplied by the parents of the student;
(b) Observations of the student; and
(c) The student’s individualized education program and placement.
(2) Then determines that:
(a) In relationship to the behavior subject to disciplinary action, the
student’s individualized education program and placement were appropriate and
the special education services, supplementary aids and services, and behavior
intervention strategies were provided consistent with the student’s
individualized education program and placement;
(b) The student’s disability did not impair the ability of the student to
understand the impact and consequences of the behavior subject to disciplinary
action; and
(c) The student’s disability did not impair the ability of the student to
control the behavior subject to disciplinary action.
(3) If the team determines that any of the above standards in this section
were not met, the behavior must be considered a manifestation of the student’s
disability.
(4) The manifestation determination review described in this section may be
conducted at the same individualized education program meeting that is convened
to address a functional behavioral assessment and behavioral intervention
plan.
(5) If the review identifies deficiencies in the student’s IEP or placement
or in their implementation, the district or other public agency must take
immediate steps to remedy those deficiencies.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38305, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38310 Determination
that behavior was not manifestation of disability. (1) If the results of the
manifestation determination review indicate that the behavior of the special
education student was not a manifestation of the student’s disability, the
relevant disciplinary procedures applicable to students without disabilities may
be applied to the student in the same manner in which they would be applied to
students without disabilities, except that a free appropriate public education
shall continue to be made available to those students consistent with this
chapter.
(2) The student’s IEP team determines the extent to which services are
necessary to enable the student to appropriately progress in the general
curriculum and appropriately advance toward achieving the goals set out in the
student’s IEP if the student is removed because of behavior that has been
determined not to be a manifestation of the student’s disability.
(3) If the school district or other public agency initiates disciplinary
procedures applicable to all students, the district or other public agency shall
ensure that the special education and disciplinary records of the special
education student are transmitted for consideration by the person or persons
making the final determination regarding the disciplinary action.
(4) If a parent requests a hearing to challenge the determination that the
behavior of the student was not a manifestation of the student’s disability,
then the student shall remain in the student’s current educational placement as
described in WAC 392-172-364 or
interim alternative educational setting consistent with WAC 392-172-38405, whichever
applies.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38310, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38400 Parent
appeal. (1) If the student’s parent disagrees with a determination that the
student’s behavior was not a manifestation of the student’s disability or with
any decision regarding placement for disciplinary purposes, the parent may
request a hearing.
(2) Pursuant to WAC 392-172-350 the
office of superintendent of public instruction shall arrange for an expedited
hearing in any case described in WAC
392-172-38415 if requested by the parent.
(3) In reviewing a decision with respect to the manifestation determination,
the hearing officer shall determine whether the district or other public agency
has demonstrated that the student’s behavior was not a manifestation of the
student’s disability consistent with the requirements of WAC 392-172-38305.
(4) In reviewing a decision to place the student in an interim alternative
educational setting, the hearing officer shall apply the standards, under WAC 392-172-379.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38400, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38405 Placement
during appeals. (1) If a parent requests a hearing regarding a disciplinary
action related to removals for weapons or drugs or dangerous behavior to
challenge the interim alternative educational setting or the manifestation
determination, the student must remain in the interim alternative educational
setting pending the decision of the hearing officer or until the expiration of
the forty-five day time period provided for, whichever occurs first, unless the
parent and the school district or other public agency agree otherwise.
(2) If a student is placed in an interim alternative educational setting
pursuant to this section and school personnel propose to change the student’s
placement after expiration of the interim alternative placement, during the
pendency of any proceeding to challenge the proposed change in placement the
student must remain in the current placement (the student’s placement prior to
the interim alternative educational setting), except as provided for below.
(3) If school or other agency personnel maintain that it is dangerous for the
student to be in the current placement (placement prior to removal to the
interim alternative educational setting) during the pendency of the due process
proceedings, the district or other public agency may request an expedited due
process hearing.
(4) In determining whether the student may be placed in the alternative
educational setting or in another appropriate placement ordered by the hearing
officer, the hearing officer shall apply the standards under WAC 392-172-379.
(5) A placement ordered pursuant to this section may not be longer than
forty-five days.
(6) The procedure in this section may be repeated as necessary.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38405, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38410 Protections
for students not yet eligible for special education and related services.
(1) A student who has not been determined to be eligible for special education
and any necessary related services under this chapter and who has engaged in
behavior that violated any rule or code of conduct of the school district or
other public agency, including any behavior described in this section, may
assert any of the protections provided for in this section if the school
district or other public agency had knowledge that the student was a special
education student before the behavior that precipitated the disciplinary action
occurred. A school district or other public agency must be deemed to have
knowledge that a student is a special education student if:
(a) The parent of the student has expressed concern in writing (or orally if
the parent does not know how to write or has a disability that prevents a
written statement) to personnel of the appropriate educational or other public
agency that the student is in need of special education and related
services;
(b) The behavior or performance of the student demonstrates the need for
these services in accordance with this chapter;
(c) The parent of the student has requested an evaluation of the student
pursuant to this chapter; or
(d) The teacher of the student, or other personnel of the district or other
public agency, has expressed concern about the behavior or performance of the
student to the director of special education of the district or other public
agency or to other personnel of the district or other public agency in
accordance with their established child find or special education referral
system.
(2) A district or other public agency would not be deemed to have knowledge
under subsection (1) of this section, if as a result of receiving the
information, the district or other public agency:
(a) Either:
(i) Conducted an evaluation consistent with this chapter and determined that
the student was not a special education student; or
(ii) Determined that an evaluation was not necessary; and
(b) Provided notice to the student’s parents of its determination consistent
with this chapter.
(3) If the district or other public agency does not have knowledge that a
student is a special education student prior to taking disciplinary measures
against the student, the student may be subjected to the same disciplinary
measures as measures applied to students without disabilities who engaged in
comparable behaviors consistent with this section.
(4) If a request is made for an evaluation of a student during the time
period in which the student is subjected to disciplinary measures under this
section, the evaluation must be conducted in an expedited manner.
(5) Until the evaluation is completed, the student remains in the educational
placement determined by school or other public agency which can include
suspension or expulsion without educational services.
(6) If the student is determined to be a special education student taking
into consideration information from the evaluation conducted by the district or
other public agency and information provided by the parents, the district or
other public agency shall provide special education and any necessary related
services in accordance with the provisions of this chapter, including the
discipline procedures and free appropriate public education requirements.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38410, filed 12/1/99, effective
1/1/00.]
WAC 392-172-38415 Expedited due
process hearings. (1) Expedited due process hearings under this section
shall:
(a) Result in a written decision being mailed to the parties within
forty-five days of the office of superintendent of public instruction’s receipt
of the request for the hearing without exceptions or extensions. The timeline
established in this subsection shall be the same for hearings requested by
parents, school districts or other public agencies;
(b) Meet the requirements of WAC 392-172-354 except that the time
periods identified for the disclosure of records and evaluations for purposes of
expedited due process hearings are not less than two business days; and
(c) Be conducted by a due process hearing officer who satisfies the
impartiality requirements of WAC
392-172-352.
(2) The decisions on expedited due process hearings are appealable under the
state’s normal due process appeal procedures.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-38415, filed 12/1/99, effective
1/1/00.]
WAC 392-172-385 Referral to and
action by law enforcement and judicial authorities. (1) Nothing in Part B of
the Individuals with Disabilities Education Act, or this chapter prohibits a
school district or other public agency from reporting a crime committed by a
special education student to appropriate authorities, or prevents state law
enforcement and judicial authorities from exercising their responsibilities with
regard to the application of federal and state law to crimes committed by a
special education student.
(2) A school district or other public agency reporting a crime committed by a
special education student shall ensure that copies of the special education and
disciplinary records of the student are transmitted for consideration by the
appropriate authorities to whom it reports the crime.
(3) A school district or other public agency reporting a crime under this
section may transmit copies of the student’s special education and disciplinary
records only to the extent that the transmission is permitted by the Family
Educational Rights and Privacy Act.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-385, filed 12/1/99, effective
1/1/00.]
AVERSIVE
INTERVENTIONS-SAFEGUARDS
WAC 392-172-388 Aversive
interventions. The purpose of WAC
392-172-388 through 392-172-398 is
to assure that special education students are safeguarded against the use and
misuse of various forms of aversive interventions. Each school district or other
public agency and educational service district shall take steps to assure that
each employee, volunteer, contractor, and other agent of the district or other
public agency responsible for the education, care, or custody of a special
education student is aware of WAC
392-172-388 through 392-172-398.
No school district or other public agency and no educational service district
shall authorize, permit, or condone the use of aversive interventions which
violates WAC 392-172-390 through 392-172-396 by any employee, volunteer,
contractor or other agent of the district or other public agency responsible for
the education, care, or custody of a special education student. Aversive
interventions, to the extent permitted, shall only be used as a last resort.
Positive interventions shall be attempted by the district or other public agency
and educational service district and described in the individualized education
program consistent with WAC
392-172-161 prior to the use of aversive interventions.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-388, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-388, filed 10/11/95, effective 11/11/95.]
WAC 392-172-390 Aversive
interventions-Definition. For the purpose of WAC 392-172-388 through 392-172-398, the term "aversive
interventions" means the systematic use of stimuli or other treatment which a
student is known to find painful or unpleasant for the purpose of discouraging
undesirable behavior on the part of the student. The term does not include the
use of reasonable force, restraint, or other treatment to control unpredicted
spontaneous behavior which poses one of the following dangers:
(1) A clear and present danger of serious harm to the student or another
person.
(2) A clear and present danger of serious harm to property.
(3) A clear and present danger of seriously disrupting the educational
process.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-390, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-390, filed 10/11/95, effective 11/11/95.]
WAC 392-172-392 Aversive
interventions-Prohibited forms. There are certain forms of aversive
interventions that are manifestly inappropriate by reason of their offensive
nature or their potential negative physical consequences, or both. The purpose
of this section is to uniformly prohibit their use respecting special education
students as follows:
(1) Electric current. No student may be stimulated by contact with electric
current.
(2) Food services. No student who is willing to consume subsistence food or
liquid when the food or liquid is customarily served may be denied or subjected
to an unreasonable delay in the provision of the food or liquid.
(3) Force and restraint in general. No force or restraint which is either
unreasonable under the circumstances or deemed to be an unreasonable form of
corporal punishment as a matter of state law may be used. See RCW 9A.16.100
which cites the following uses of force or restraint as uses which are presumed
to be unreasonable and therefore unlawful:
(a) Throwing, kicking, burning, or cutting a student.
(b) Striking a student with a closed fist.
(c) Shaking a student under age three.
(d) Interfering with a student’s breathing.
(e) Threatening a student with a deadly weapon.
(f) Doing any other act that is likely to cause bodily harm to a student
greater than transient pain or minor temporary marks.
(4) The statutory listing of worst case uses of force or restraint described
in subsection (3) of this section may not be read as implying that all unlisted
uses (e.g., shaking a four year old) are permissible. Whether or not an unlisted
use of force or restraint is permissible depends upon such considerations as the
balance of these rules, and whether the use is reasonable under the
circumstances.
(5) Hygiene care. No student may be denied or subjected to an unreasonable
delay in the provision of common hygiene care.
(6) Isolation. No student may be excluded from his or her general
instructional or service area and isolated within a room or any other form of
enclosure, except under the conditions set forth in WAC 392-172-394.
(7) Medication. No student may be denied or subjected to an unreasonable
delay in the provision of medication.
(8) Noise. No student may be forced to listen to noise or sound that the
student finds painful.
(9) Noxious sprays. No student may be forced to smell or be sprayed in the
face with a noxious or potentially harmful substance.
(10) Physical restraints. No student may be physically restrained or
immobilized by binding or otherwise attaching the student’s limbs together or by
binding or otherwise attaching any part of the student’s body to an object,
except under the conditions set forth in WAC 392-172-394.
(11) Taste treatment. No student may be forced to taste or ingest a substance
which is not commonly consumed or which is not commonly consumed in its existing
form or concentration.
(12) Water treatment. No student’s head may be partially or wholly submerged
in water or any other liquid.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-392, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-392, filed 10/11/95, effective 11/11/95.]
WAC 392-172-394 Aversive
interventions-Other forms-Conditions. Use of various forms of aversive
interventions which are not prohibited by WAC 392-172-392 warrant close scrutiny.
Accordingly, the use of aversive interventions involving bodily contact,
isolation, or physical restraint not prohibited by WAC 392-172-392 is conditioned upon
compliance with certain procedural and substantive safeguards, as follows:
(1) Bodily contact. The use of any form of aversive interventions not
prohibited by WAC 392-172-392 which
involves contacting the body of a special education student shall be provided
for by the terms of the student’s individualized education program established
in accordance with the requirements of WAC
392-172-396.
(2) Isolation. The use of aversive interventions which involves excluding a
special education student from his or her general instructional area and
isolation of the student within a room or any other form of enclosure is subject
to each of the following conditions:
(a) The isolation, including the duration of its use, shall be provided for
by the terms of the student’s individualized education program established in
accordance with the requirements of WAC
392-172-396.
(b) The enclosure shall be ventilated, lighted, and temperature controlled
from inside or outside for purposes of human occupancy.
(c) The enclosure shall permit continuous visual monitoring of the student
from outside the enclosure.
(d) An adult responsible for supervising the student shall remain in visual
or auditory range of the student.
(e) Either the student shall be capable of releasing himself or herself from
the enclosure or the student shall continuously remain within view of an adult
responsible for supervising the student.
(3) Physical restraint. The use of aversive interventions which involves
physically restraining or immobilizing a special education student by binding or
otherwise attaching the student’s limbs together or by binding or otherwise
attaching any part of the student’s body to an object is subject to each of the
following conditions:
(a) The restraint shall only be used when and to the extent it is reasonably
necessary to protect the student, other persons, or property from serious
harm.
(b) The restraint, including the duration of its use, shall be provided for
by the terms of the student’s individualized education program established in
accordance with the requirements of WAC
392-172-396.
(c) The restraint shall not interfere with the student’s breathing.
(d) An adult responsible for supervising the student shall remain in visual
or auditory range of the student.
(e) Either the student shall be capable of releasing himself or herself from
the restraint or the student shall continuously remain within view of an adult
responsible for supervising the student.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-394, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-394, filed 10/11/95, effective 11/11/95.]
WAC 392-172-396 Aversive
interventions-Individualized education program requirements. If the need for
use of aversive interventions are determined appropriate by the IEP team, the
individualized education program shall:
(1) Be consistent with the recommendations of the IEP team which includes a
school psychologist and/or other certificated employee who understands the
appropriate use of the aversive interventions and who concurs with the
recommended use of the aversive interventions, and a person who works directly
with the student.
(2) Specify the aversive interventions that may be used.
(3) State the reason the aversive interventions is judged to be appropriate
and the behavioral objective sought to be achieved by its use, and shall
describe the positive interventions attempted and the reasons they failed, if
known.
(4) Describe the circumstances under which the aversive interventions may be
used.
(5) Describe or specify the maximum duration of any isolation or
restraint.
(6) Specify any special precautions that must be taken in connection with the
use of the aversive interventions technique.
(7) Specify the person or persons permitted to use the aversive interventions
and the current qualifications and required training of the personnel permitted
to use the aversive interventions.
(8) Establish a means of evaluating the effects of the use of the aversive
interventions and a schedule for periodically conducting the evaluation.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-396, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-396, filed 10/11/95, effective 11/11/95.]
Student Records
WAC 392-172-400 Definition of
"educational records" as used in records rules. (1) For the purpose of WAC 392-172-400 through 392-172-426 and consistent with the
Family Educational Rights and Privacy Act, the term "educational records" shall
mean those records that:
(a) Are directly related to a student; and
(b) Are maintained by a school district or other public agency or by a party
acting for the school district or other public agency.
(2) The term "educational records" does not include:
(a) Records of instructional, supervisory, administrative personnel, and
educational personnel ancillary to those persons if those records:
(i) Are in the sole possession of the maker of the record; and
(ii) Are not accessible or revealed to any other individual except a
substitute. For the purpose of this definition, a "substitute" means an
individual who performs on a temporary basis the duties of the individual who
made the record and does not refer to an individual who permanently succeeds the
maker of the record in his or her position;
(b) Records of a law enforcement unit of a school district or other public
agency which are:
(i) Maintained separately from the educational records described in
subsection (1) of this section;
(ii) Maintained solely for law enforcement purposes; and
(iii) Not disclosed to individuals other than law enforcement officials of
the same district or other public agency. This exception from the definition of
educational records does not apply if educational records are disclosed to
personnel of the school district and other public agency’s law enforcement
unit;
(c) Records relating to an individual who is employed by a school district or
other public agency, that:
(i) Are made and maintained in the normal course of business;
(ii) Relate exclusively to the individual in that individual’s capacity as an
employee; and
(iii) Are not available for use for any other purpose. This exception from
the definition of "educational records" does not apply to records relating to an
individual in attendance at the school district or other public agency who is
employed as a result of his or her status as a student;
(d) Records relating to an adult student which are:
(i) Created or maintained by a physician, psychiatrist, psychologist, or
other recognized professional acting in their professional or paraprofessional
capacity;
(ii) Created, maintained, or used only in connection with the treatment of
the student; and
(iii) Disclosed only to individuals providing the treatment. However, the
records can be personally reviewed by a physician or other appropriate
professional of the student’s choice. For the purpose of this definition,
"treatment" does not include remedial educational activities or activities which
are part of the program of instruction at the school district or other public
agency;
(e) Records that only contain information about a student after he or she is
no longer a student at that school district or other public agency.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-400, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-400, filed 10/11/95, effective 11/11/95.]
WAC 392-172-402 Definitions-"Destruction,"
"participating agency" and "personally identifiable." For the purpose of WAC 392-172-400 through 392-172-426 governing records of special
education students:
(1) "Destruction" shall mean physical destruction or removal of personal
identifiers from information so that the information is no longer personally
identifiable.
(2) "Participating agency" means any agency or institution which collects,
maintains, or uses personally identifiable information or from which information
is obtained in implementing this chapter, and includes school districts and
other public agencies.
(3) "Personally identifiable" means information that includes:
(a) The name of the student, the student’s parent, or other family
member;
(b) The address of the student;
(c) A personal identifier, such as the student’s social security number or
student number; or
(d) A list of personal characteristics or other information that would make
it possible to identify the student with reasonable certainty.
(4) "Consent" and "Native language" are defined at WAC 392-172-040.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-402, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-402, filed 10/11/95, effective 11/11/95.]
WAC 392-172-404 Notice to
parents. (1) Parents of special education students and adult students have
rights regarding the protection of the confidentiality of any personally
identifiable information collected, used, or maintained under WAC 392-172-400 through 392-172-426, the Family Educational
Rights and Privacy Act of 1974, as amended, chapter 28A.155 RCW, and other
Washington state law.
(2) State publications regarding special education are available in
alternative languages and formats on request.
(3) Personally identifiable information about students for use by the state
may be contained in citizen’s complaints, safety net applications, due process
hearings and mediation agreements. The state may also receive personally
identifiable information as a result of grant evaluation performance. This
information is removed before forwarding information to other agencies or
individuals requesting the information, unless the parent or adult student
consents to release the information or the information is allowed to be released
without parent consent under the regulations implementing the Family Educational
Rights and Privacy Act, 34 CFR Part 99.
(4) Before undertaking any major identification, location, or evaluation
activity, the state, at a minimum, publishes notice in newspapers with
circulation adequate to notify parents throughout the state of the activity and
posts information on its web site.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-404, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-404, filed 10/11/95, effective 11/11/95.]
WAC 392-172-406 Opportunity to
examine records. The parents of a special education student, in accordance
with the confidentiality procedures in this chapter, shall be afforded an
opportunity to inspect and review all educational records which shall include,
but not be limited to:
(1) The identification, evaluation, and the delivery of educational services
to the student; and
(2) The provision of free, appropriate public education to the student.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-406, filed 10/11/95, effective 11/11/95.]
WAC 392-172-408 Access rights.
(1) Each school district or other public agency shall permit parents of special
education students (or adult students) to inspect and review, during school
business hours, any educational records relating to their student or the adult
student which are collected, maintained, or used by the district or other public
agency under this chapter. The district or other public agency shall comply with
a request promptly and before any meeting regarding an individualized education
program or hearing relating to the identification, evaluation, educational
placement of the student or provision of FAPE to the student, including
disciplinary proceedings. The school district or other public agency shall
respond, in no case, more than forty-five calendar days after the request has
been made.
(2) The right to inspect and review educational records under this section
includes:
(a) The right to a response from the educational agency to reasonable
requests for explanations and interpretations of the records;
(b) The right to request that the school district or other public agency
provide copies of the records containing the information if failure to provide
those copies would effectively prevent the parent from exercising the right to
inspect and review the records; and
(c) The right to have a representative of the parent or adult student inspect
and review records.
(3) A school district or other public agency may presume that a parent has
authority to inspect and review records relating to his or her student unless
the district or other public agency has been advised that the parent does not
have the authority under applicable state law governing such matters as
guardianship, separation, and divorce.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-408, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-408, filed 10/11/95, effective 11/11/95.]
WAC 392-172-410 Record of
access. Each school district or other public agency shall keep a record of
parties obtaining access to educational records collected, maintained, or used
under this chapter including the name of the party, the date access was given,
and the purpose for which the party is authorized to use the records. The agency
is not required to keep a record of access by parents, adult students, and
authorized employees of the school district or other public agency with a
legitimate educational interest in the records.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-410, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-410, filed 10/11/95, effective 11/11/95.]
WAC 392-172-412 Records on more
than one student. If any educational record includes information on more
than one student, the parent(s) of those students (and/or adult students) shall
have the right to inspect and review only the information relating to their
student (or themselves) or to be informed of that specific information.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-412, filed 10/11/95, effective 11/11/95.]
WAC 392-172-414 List of types and
locations of information. Each school district or other public agency shall
provide parents (and adult students) on request a list of the types and
locations of educational records collected, maintained, or used by the
agency.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-414, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-414, filed 10/11/95, effective 11/11/95.]
WAC 392-172-416 Fees. (1) A
participating educational agency may charge a fee for copies of records which
are made for parents (or adult students) under this chapter if the fee does not
effectively prevent the parents (or adult students) from exercising their right
to inspect and review those records.
(2) A participating educational agency may not charge a fee to search for or
to retrieve information under this chapter.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-416, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-416, filed 10/11/95, effective 11/11/95.]
WAC 392-172-418 Amendment of
records at the request of a parent or adult student. (1) A parent of a
special education student (or an adult student) who believes that information in
educational records collected, maintained, or used under this chapter is
inaccurate or misleading or violates the privacy or other rights of the student
may request that the school district or other public agency which maintains the
information amend the information.
(2) The agency shall decide whether to amend the information in accordance
with the request within a reasonable period of time after receipt of the
request.
(3) If the agency refuses to amend the information in accordance with the
request, the agency shall inform the parent or adult student of the refusal and
advise the parent or adult student of the right to a hearing provided for in WAC 392-172-420.
(4) The school district or other public agency, on request, shall provide the
parent or adult student an opportunity for a hearing to challenge information,
in the educational records, to insure that it is not inaccurate, misleading, or
otherwise in violation of the privacy or other rights of the student.
(5) If, as a result of the hearing, the school district or other public
agency decides that the information is inaccurate, misleading, or otherwise in
violation of the privacy or other rights of the student, the agency shall amend
the information accordingly and so inform the parent or adult student in
writing.
(6) If, as a result of the hearing, the school district or other public
agency decides that the information is not inaccurate, misleading or otherwise
in violation of the privacy or other rights of the student, the agency shall
inform the parent(s) or adult student of the right to place in the records it
maintains on the student a statement commenting on the information or setting
forth any reasons for disagreeing with the decision of the agency.
(7) Any explanation placed in the records of the student in compliance with
this section shall:
(a) Be maintained by the participating agency as part of the records of the
student as long as the records or the contested portion is maintained by the
educational agency; and
(b) Also be disclosed to any party to whom the records of the student (or the
contested portion thereof) are disclosed.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-418, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-418, filed 10/11/95, effective 11/11/95.]
WAC 392-172-420 Hearing procedures
regarding records. A hearing initiated pursuant to WAC 392-172-418 to challenge information
in educational records shall be
conducted according to procedures developed by the school district or other
public agency, that include at least the following elements:
(1) The hearing shall be held within a reasonable period of time after the
agency has received the request;
(2) The parent or adult student shall be given notice of the date, place, and
time reasonably in advance of the hearing;
(3) The hearing may be conducted by any party, including an official of the
agency, who does not have a direct interest in the outcome of the hearing;
(4) The parent or adult student shall be afforded a full and fair opportunity
to present evidence relevant to the issues raised pursuant to WAC 392-172-418 and may be assisted or
represented by individuals of his or her choice at his or her own expense,
including an attorney;
(5) The agency shall provide a written decision to the parent or adult
student within a reasonable period of time after the conclusion of the hearing;
and
(6) The decision of the agency shall:
(a) Be based solely upon the evidence presented at the hearing; and
(b) Include a summary of the evidence and the reasons for the decision.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-420, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-420, filed 10/11/95, effective 11/11/95.]
WAC 392-172-422 Consent. (1)
Subject to subsection (3) of this section, written consent of a parent or adult
student shall be obtained before personally identifiable information is:
(a) Disclosed to anyone other than officials of participating agencies
collecting or using the information obtained under this chapter; or
(b) Used for any purpose other than meeting a requirement imposed by this
chapter.
(2) The written parental consent must be signed, dated and:
(a) Specify the records that may be disclosed;
(b) State the purpose of the disclosure; and
(c) Identify the party or class of parties to whom the disclosure may be
made.
(3) No school district or other public agency shall release information from
educational records to participating agencies or other agencies or institutions
without the written consent of a parent or adult student, unless release of the
educational records is allowed under one of the exceptions under the rules
implementing the federal Educational Rights and Privacy Act, 34 Code of Federal
Regulations (CFR) 34 Part 99, sections 99.1 et seq.
(4) If a parent refuses to provide consent under this section, the school
district or other public agency may offer mediation to the parent or use the due
process hearing procedures in this chapter to override parental refusal.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-422, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-422, filed 10/11/95, effective 11/11/95.]
WAC 392-172-424 Safeguards. (1) Each
participating agency shall protect the confidentiality of personally
identifiable information at the collection, storage, disclosure, and destruction
stages. The same privacy provisions provided to parents are extended to special
education students with consideration given to the type and severity of the
student’s disability.
(2) One official at each participating agency shall be designated as the
individual responsible for assuring the confidentiality of any personally
identifiable information.
(3) All persons collecting or using personally identifiable information shall
receive training or instruction regarding:
(a) The procedures on protection of the confidentiality of personally
identifiable information, contained in this chapter, state law, the regulations
implementing the Family Educational Rights and Privacy Act (34 CFR Part 99), and
the school district’s or other public agency’s procedures.
(4) Each participating agency shall maintain, for public inspection, a
current listing of the names and positions of those employees within the agency
who may have access to personally identifiable information.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-424, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-424, filed 10/11/95, effective 11/11/95.]
WAC 392-172-426 Destruction of
information. (1) Each school district or other public agency shall inform
parent(s) (and adult students) when personally identifiable information
collected, maintained, or used in compliance with this chapter is no longer
needed to provide educational services to the student. State law regarding
records retention is contained in chapter 40.24 RCW. State procedures for school
district records retention is published by the secretary of state, division of
archives and records management.
(2) The information shall thereafter be destroyed at the request of the
parent(s) or adult student. However, a permanent record of a student’s name,
address, and phone number, his or her grades, attendance record, classes
attended, grade level completed and year completed may be maintained without
time limitation.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-426, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-426, filed 10/11/95, effective 11/11/95.]
STATE
PROCEDURES-REQUIREMENTS-STANDARDS
State Advisory Council
WAC 392-172-500 Advisory
council. (1) The special education state advisory council is established in
order to help facilitate the provision of special education and related services
to meet the unique needs of special education students.
(2) The membership of the council shall include at least one representative
of each of the following groups or entities:
(a) Individuals with disabilities;
(b) Teachers;
(c) Parents of special education students;
(d) Local administrators of special education programs;
(e) Support services personnel;
(f) Superintendents;
(g) Principals;
(h) Nonpublic schools serving special education students;
(i) School directors;
(j) Institutions of higher education that prepare special education and
related services personnel;
(k) State agencies involved in the financing or delivery of related services
to special education students;
(l) Vocational, community, or business organization concerned with the
provision of transition services to special education students;
(m) State juvenile and adult corrections agencies;
(n) Other individuals or groups as may hereafter be designated and approved
by the superintendent of public instruction.
A majority of the members of the advisory council shall be individuals with
disabilities or parents of special education students.
(3) The council’s purposes are to:
(a) Advise the superintendent of public instruction and make recommendations
on all matters related to special education and specifically advise the
superintendent of unmet needs within the state in the education of special
education students including personnel needs as addressed in the state’s
comprehensive system of personnel development, WAC 392-172-550 et seq.;
(b) Comment publicly on any rules or regulations proposed by the state
regarding the education of special education students;
(c) Assist the state in developing and reporting such information and
evaluations as may assist the federal government;
(d) Advise the state in developing corrective action plans to address
findings identified in federal monitoring reports under Part B of the
Individuals with Disabilities Education Act;
(e) Advise the state in developing and implementing policies relating to the
coordination of services for special education students; and
(f) Advise the state on the education of eligible special education students
who have been convicted as adults and incarcerated in adult prisons.
(4) The council shall follow the procedures in this subsection.
(a) The advisory council shall meet as often as necessary to conduct its
business.
(b) By July 1 of each year, the advisory council shall submit an annual
report of council activities and suggestions to the superintendent of public
instruction. This report must be made available to the public in a manner
consistent with other public reporting requirements of this chapter.
(c) Official minutes must be kept on all council meetings and shall be made
available to the public on request to the office of superintendent of public
instruction.
(d) All advisory council meetings and agenda items must be publicly announced
enough in advance of the meeting to afford interested parties a reasonable
opportunity to attend, and meetings must be open to the public.
(e) Interpreters and other necessary services must be provided at council
meetings for council members or participants.
(f) The advisory council shall serve without compensation but the
superintendent of public instruction must reimburse the council for reasonable
and necessary expenses for attending meetings and performing duties.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-500, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-500, filed 10/11/95, effective 11/11/95.]
Methods of Ensuring Services
WAC 392-172-502 Interagency
agreements. (1) The superintendent of public instruction shall ensure that
an interagency agreement or other mechanism for interagency coordination is in
effect between each noneducational public agency described in this section and
the superintendent of public instruction, in order to ensure that all services
described in this section that are needed to ensure FAPE are provided, including
the provision of these services during the pendency of any dispute.
Consideration shall be given to preserving existing arrangements between school
districts and other noneducational public agencies which are consistent with
this chapter. These agreements or mechanisms shall:
(a) Describe the role that each agency plays in providing or paying for
required services;
(b) Define the financial responsibility of each agency for providing special
education students with a free appropriate public education. The financial
responsibility of each noneducational public agency including the state Medicaid
agency and other public insurers of special education students, shall precede
the financial responsibility of the school district (or the state agency
responsible for development of the student’s individualized education
program);
(c) Establish procedures for resolving interagency disputes among agencies
that are parties to the agreements;
(d) Establish procedures under which school districts and other public
agencies may initiate proceedings in order to secure reimbursement from agencies
that are parties to the agreements or otherwise implement the provisions of the
agreements; and
(e) Establish 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.
(2) If any public agency other than a school district is otherwise obligated
under federal or state law, or assigned responsibility under state policy to
provide or pay for any services that are also considered special education or
related services as defined in this chapter, such as, but not limited to,
assistive technology devices and services, supplementary aids and services and
transition services that are necessary for ensuring a free appropriate public
education to special education students within the state, the public agency
shall fulfill that obligation or responsibility, either directly or through
contract or other arrangement.
(3) A noneducational public agency may not disqualify an eligible service for
Medicaid reimbursement because that service is provided in a school context.
(4) If a public agency other than an educational agency fails to provide or
pay for the special education and related services described in this section,
the school district (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 school district or state agency may then claim reimbursement for the
services from the noneducational public agency that failed to provide or pay for
these services and that agency shall reimburse the school district or state
agency in accordance with the terms of the interagency agreement or other
mechanism described in this section, and the agreement described in subsection
(1)(d) of this section.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-502, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-502, filed 10/11/95, effective 11/11/95.]
WAC 392-172-50300 Special
education students covered by public insurance. (1) A public agency may use
the Medicaid or other public insurance benefits programs in which a student
participates to provide or pay for services required under this chapter, as
permitted under the public insurance program, except as provided in subsection
(2) of this section.
(2) With regard to services required to provide FAPE to an eligible student
under this chapter, the public agency:
(a) May not require parents to sign up for or enroll in public insurance
programs in order for their student to receive FAPE under Part B of the
IDEA;
(b) May not require parents to incur an out-of-pocket expense such as the
payment of a deductible or co-pay amount incurred in filing a claim for services
provided pursuant to this chapter, but pursuant to WAC 392-172-50305, may pay the cost
that the parent otherwise would be required to pay; and
(c) May not use a student’s benefits under a public insurance program if that
use would:
(i) Decrease available lifetime coverage or any other insured benefit;
(ii) Result in the family paying for services that would otherwise be covered
by the public insurance program and that are required for the student outside of
the time the student is in school;
(iii) Increase premiums or lead to the discontinuation of insurance; or
(iv) Risk loss of eligibility for home and community-based waivers, based on
aggregate health-related expenditures.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-50300, filed 12/1/99, effective
1/1/00.]
WAC 392-172-50305 Special
education students covered by private insurance. (1) With regard to services
required to provide FAPE to an eligible student under this chapter, a public
agency may access a parent’s private insurance proceeds only if the parent
provides informed consent consistent with this chapter.
(2) Each time the public agency proposes to access the parent’s private
insurance proceeds, it must:
(a) Obtain parent consent in accordance with this chapter; and
(b) Inform the parents that their refusal to permit the public agency to
access their private insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to
the parents.
(3) If a public agency is unable to obtain parental consent to use the
parent’s private insurance, or public insurance when the parent would incur a
cost for a specified service required under this chapter, to ensure FAPE the
public agency may use its Part B funds to pay for the service.
(4) To avoid financial cost to parents who otherwise would consent to use
private insurance, or public insurance if the parent would incur a cost, the
public agency may use its Part B funds to pay the cost the parents otherwise
would have to pay to use the parent’s insurance (e.g., the deductible or co-pay
amounts).
(5) Proceeds from public or private insurance will not be treated as program
income for purposes of 34 CFR 80.25.
(6) If a public agency spends reimbursements from federal funds (e.g.,
Medicaid) for services under this chapter those funds will not be considered
"state or local" funds for purposes of the maintenance of effort provisions in
this chapter.
(7) Nothing in this section should be construed to alter the requirements
imposed on a state Medicaid agency, or any other agency administering a public
insurance program by federal statute, regulations or policy under title XIX, or
title XXI of the Social Security Act, or any other public insurance program.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-50305, filed 12/1/99, effective
1/1/00.]
Program Monitoring-Funding-Fiscal
Auditing
WAC 392-172-504 Monitoring.
(1) The superintendent of public instruction or designee shall annually monitor
selected local school districts or other public agency special education
programs, so that all districts or other public agencies are monitored at least
once every four years. The purpose of monitoring is to determine the school
district and other public agency’s compliance with this chapter, chapter 28A.155
RCW, federal regulations implementing 20 USC Section 1400, et seq. (Part B of
the Individuals with Disabilities Education Act) and other federal and state
education laws necessary to validate compliance with this chapter, including
validation of information included in school district or other public agency
requests for federal funds.
(2) Procedures for monitoring school districts and other public agencies
include:
(a) Collection of data;
(b) Conduct of on-site visits; and
(c) Comparison of a sampling of evaluation reports and individualized
education programs with the services actually provided.
(3) Following a monitoring visit, an interim monitoring report, including a
proposed corrective action plan, shall be submitted to the school district or
other public agency. The monitoring report shall include, but not be limited
to:
(a) Findings of noncompliance, if any; and
(b) Required corrective actions for remediation of any such instance(s) of
noncompliance.
(4) The school district or other public agency shall have thirty calendar
days after the date of its receipt of the interim monitoring report to provide
the office of superintendent of public instruction with:
(a) Acceptance of the report; or
(b) Supplemental arguments and/or facts which may serve as a basis for
alteration of the monitoring report; and
(c) Any revisions to the proposed action plan which sets forth the measures
the district or other public agency shall take and time period(s) within which
the district or other public agency shall act in order to remediate the
instance(s) of noncompliance.
(5) In the event that the district or other public agency submits
supplemental arguments and/or facts which may serve as a basis for alteration of
the monitoring report, the office of superintendent of public instruction shall
provide the district or other public agency with a final monitoring report
within thirty calendar days after receipt of the supplemental arguments and/or
facts.
(6) If the school district or other public agency fails to comply with a
corrective action plan approved pursuant to subsection (5) of this section, the
superintendent of public instruction
or designee shall institute procedures to ensure corrective action. Such
procedures may include one or more of the following:
(a) Verification visits by office of superintendent of public instruction
staff, or its designee, to:
(i) Determine whether the school district or other public agency is taking
the required corrective action;
(ii) Expedite the school district and other public agency’s response to the
final monitoring report; and
(iii) Provide any necessary technical assistance to the school district or
other public agency in its efforts to comply.
(b) Withholding, in whole or part, a specified amount of state and/or federal
special education funds, in compliance with the provisions of WAC 392-172-590 and 392-172-514.
(c) Initiating an audit of the school district or other public agency
consistent with WAC 392-172-512.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-504, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-504, filed 10/11/95, effective 11/11/95.]
WAC 392-172-506 State use and
allocation of Part B funds. (1) The superintendent of public instruction may
not use more than fifteen percent of the total state allocation under Part B of
the Individuals with Disabilities Education Act and section 619 (including the
coordination of activities under Part B of the IDEA with, and providing
technical assistance to, other programs that provide services to special
education students) in any preceding fiscal year, cumulatively adjusted by the
secretary of the department of education for each succeeding fiscal year by the
lesser of:
(a) The percentage increase, if any from the preceding fiscal year in the
state’s allocation under section 611 of the act; or
(b) The rate of inflation, as measured by the percentage increase, if any,
from the preceding fiscal year in the consumer price index for all urban
consumers, published by the bureau of labor statistics of the department of
labor.
(2) Allowable costs for use of the administrative funds under Part B and
section 619 of the Individuals with Disabilities Education Act include:
(a) Administration of state activities and for planning at the state level,
including planning, or assisting in the planning, of programs or projects for
the education of special education students;
(b) Approval, supervision, monitoring, and evaluation of the effectiveness of
local programs and projects for the education of special education students;
(c) Technical assistance to districts with respect to the requirements of
this chapter;
(d) Leadership services for the program supervision and management of special
education activities for special education students; and
(e) Other state leadership activities and consultative services.
(3) The office of the superintendent of public instruction based on input
from school districts may use the portion of its allocation it does not use for
administration:
(a) For support services and direct services; and
(b) For the administrative costs of the state’s monitoring activities and
complaint investigations, to the extent that these costs exceed the
administrative costs for monitoring and complaint investigations incurred during
fiscal year 1985;
(c) The establishment and implementation of the mediation process required by
this chapter, including providing for the costs of mediators and support
personnel;
(d) To assist school districts in meeting personnel shortages;
(e) Activities at the state and local levels to meet the performance goals
established by the state and to support the development and implementation of
the state improvement plan under subpart 1 of Part D of the IDEA if the state
receives funds under that subpart;
(f) To supplement other amounts used to develop and implement a state-wide
coordinated services system designed to improve results for students and
families, including special education students and their families, but not to
exceed one percent of the amount received by the state under section 611 of the
IDEA. This system must be coordinated with and, to the extent appropriate, build
on the system of coordinated services developed by the state under Part C of the
IDEA; and
(g) For subgrants to school districts for capacity-building and
improvement.
(4) Based upon the availability of federal funds for any given fiscal year,
the office of superintendent of public instruction may establish priorities in
awarding subgrants to school districts for capacity-building and improvement on
a competitive or targeted basis.
These federal funds are to be used by school districts to assist them in
providing direct services and in making systemic change to improve results for
special education students through one or more of the following:
(a) Direct services, including alternative programming for students who have
been expelled from school, and services for students in correctional facilities,
and students enrolled in state-operated or state-supported schools;
(b) Addressing needs or carrying out improvement strategies identified in the
state’s improvement plan under subpart 1 of Part D of the IDEA;
(c) Adopting promising practices, materials, and technology, based on
knowledge derived from education research and other sources;
(d) Establishing, expanding, or implementing interagency agreements and
arrangements between school districts and other agencies or organizations
concerning the provision of services to special education students and their
families; and
(e) Increasing cooperative problem-solving between parents and school
personnel and promoting the use of alternative dispute resolution.
(5) For the purposes of this section:
(a) "Direct services" means services provided to a special education student
by the state directly, by contract, or through other arrangements; and
(b) "Support services" includes implementing the comprehensive system of
personnel development, recruitment and training of hearing officers, mediators,
and surrogate parents, and public information and parent training activities
relating to free, appropriate public education for special education
students.
(6) Of the funds the office of the superintendent of public instruction
retains under this section, the office may use the funds directly, or distribute
them to school districts, educational service districts, and other public
agencies on a competitive, targeted, or formula basis.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-506, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-506, filed 10/11/95, effective 11/11/95.]
WAC 392-172-507 State level
nonsupplanting and maintenance of effort. (1) Except as provided under WAC 392-172-606, federal funds available
for special education students under Part B of the Individuals with Disabilities
Education Act, shall be used to supplement, and in no case supplant, federal,
state and local funds (including funds that are not under the direct control of
the state or local education agencies) expended for special education and
related services provided to special education students.
(2) On either a total or per-capita basis, the state will not reduce the
amount of state financial support for special education and related services for
special education students, or otherwise made available because of the excess
costs of educating those students, below the amount of that support for the
preceding fiscal year.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-507, filed 12/1/99, effective
1/1/00.]
WAC 392-172-508 Definition of
"unlawfully received or expended funds." For the purpose of WAC 392-172-512 through 392-172-518, "unlawfully received or
expended funds" shall mean any state or federal special education funds received
and held or expended by a school district or other public agency in a manner or
for a purpose that is in violation of any provision of:
(1) State statute or rule, including this chapter; or
(2) Any federal rule or condition to funding that may now or hereafter
supplement this chapter including:
The recovery of funds based on inaccurate child count information under the
Individuals with Disabilities Education Act.
(3) In addition to meeting the other requirements of this chapter, the
superintendent of public instruction shall:
(a) Establish procedures to be used by school districts and other public
agencies in counting the number of special education students receiving special
education and related services;
(b) Set dates by which those agencies and institutions must report to the
superintendent of public instruction to ensure that the state complies with
federal requirements;
(c) Obtain certification from each agency and institution that an
unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each agency and
institution, and prepare the reports required by the United States Department of
Education; and
(e) Ensure that documentation is maintained that enables the state and the
United States Secretary of Education to audit the accuracy of the count.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-508, filed 10/11/95, effective 11/11/95.]
WAC 392-172-510 Child count
procedures. The superintendent of public instruction shall report to the
United States Secretary of Education no later than February 1 of each year the
number of special education students aged three through twenty-one residing in
the state who are receiving special education and related services. The
superintendent shall submit the report on forms provided by the United States
Secretary of Education.
(1) Information required in the report includes:
(a) The number of special education students receiving special education and
related services on December 1 of that school year;
(b) The number of special education students aged three through five who are
receiving free, appropriate public education;
(c) The number of those special education students aged six through seventeen
and eighteen through twenty-one within each disability category, as defined in
the definition of "special education students"; and
(d) The number of those special education students aged three through
twenty-one for each year of age (three, four, five, etc.).
(2) For the purpose of this part, a student’s age is the student’s actual age
on the date of the child count: December 1.
(3) The state superintendent may not report a student under more than one
disability category.
(4) If a special education student has more than one disability, the
superintendent shall report that student in accordance with the following
procedure:
(a) A student with deaf-blindness and not reported as having a developmental
delay must be reported under the category "deaf-blindness."
(b) A student who has more than one disability (other than deaf-blindness or
developmental delay) must be reported under the category "multiple
disabilities."
(5) The office of the superintendent of public instruction shall include in
its report a certification signed by an authorized official of the agency that
the information provided is an accurate and unduplicated count of special
education students receiving special education and related services on the dates
in question.
(6) The office of the superintendent of public instruction will include in
its report special education students who are enrolled in a school or program
that is operated or supported by a public agency, and that:
(a) Provides them with both special education and related services; or
(b) Provides them only with special education if they do not need related
services to assist them in benefiting from that special education.
(7) The superintendent may not include special education students in its
reports who:
(a) Are not enrolled in a school or program operated or supported by a public
agency;
(b) Are not provided special education that meets state standards;
(c) Are not provided with a related service that they need to assist them in
benefiting from special education;
(d) Are counted by the state’s lead agency for Part C services; or
(e) Are receiving special education funded solely by the federal government
including students served by the U.S. Departments of the Interior or
Education.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-510, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-510, filed 10/11/95, effective 11/11/95.]
WAC 392-172-511 Disproportionality.
(1) The state shall provide for the collection and examination of data to
determine if significant disproportionality based on race is occurring in the
state with respect to:
(a) The identification of students as special education students, including
the identification of students as special education students in accordance with
a particular impairment described in this chapter; and
(b) The placement in particular educational settings of these students.
(2) In the case of a determination of significant disproportionality with
respect to the identification of a student as a special education student, or
the placement in particular educational settings of these students, the
superintendent of public instruction shall provide for the review and, if
appropriate, revision of the policies, procedures, and practices used in the
identification or placement to ensure that the policies, procedures, and
practices comply with the requirements of Part B of the IDEA.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-511, filed 12/1/99, effective
1/1/00.]
WAC 392-172-512 Audits. (1)
The state auditor’s office shall conduct fiscal/program audits of school
district or other public agency special education programs. The purposes of such
audits shall be:
(a) To determine compliance or noncompliance with:
(i) A school district and other public agency’s application(s) for state and
federal excess cost funds;
(ii) The provisions of this chapter; and
(iii) Any supplemental federal conditions to funding as may now or hereafter
exist.
(b) To establish a factual basis for:
(i) The recovery of unlawfully received or expended state or federal special
education funds; or
(ii) The initiation of fund withholding proceedings.
(2) The superintendent of public instruction shall comply with chapter
392-115 WAC in the resolution of all audits.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-512, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-512, filed 10/11/95, effective 11/11/95.]
WAC 392-172-514 Fund
withholding. (1) In the event a school district or other public agency fails
to submit an approvable corrective action plan required by chapter 392-115 WAC,
audit resolution, or fails to submit an approvable corrective action plan
pursuant to WAC 392-172-504,
monitoring, or fails to comply with a corrective action plan approved pursuant
to chapter 392-115 WAC or fails to comply with a corrective action plan pursuant
to WAC 392-172-504, the superintendent
or designee shall provide the school district or other public agency notice
which complies with RCW 34.05.434 of:
(a) Intent to withhold a specified amount of state and/or federal special
education funds; and
(b) The school district and other public agency’s opportunity for a hearing
before the superintendent of public instruction or designee prior to
commencement of the withholding.
(2) Funds may be withheld in whole or part in the event the district or other
public agency fails to request a hearing or the hearing decision upholds the
final audit or monitoring in whole or part. (RCW 28A.155.100.)
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-514, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-514, filed 10/11/95, effective 11/11/95.]
WAC 392-172-516 Recovery of
funds. The superintendent of public instruction shall comply with the
provisions of chapter 392-115 WAC in the event an audit conducted pursuant to WAC 392-172-512 indicates that a district
or other public agency has unlawfully received and/or expended state or federal
special education funds.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-516, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-516, filed 10/11/95, effective 11/11/95.]
WAC 392-172-518 Fund withholdings
to enforce parent appeal decisions. The superintendent of public instruction
or designee may withhold any amount of state funds and/or any amount of federal
special education funds as deemed necessary to enforce a decision made on appeal
pursuant to WAC 392-172-360 without
any necessity of a further hearing on the matter.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-518, filed 10/11/95, effective 11/11/95.]
Private School Requirements
WAC 392-172-520 Implementation by
state of special education students placed or referred by school districts or
other public agencies. In implementing the private school provisions of WAC 392-172-219 through 392-172-226, the state 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 special education
student;
(3) Provide an opportunity for those private schools and facilities to
participate in the development and revision of state standards that apply to
them; and
(4) Ensure that a special education student who is placed in or referred to a
private school or facility by a school district or other public agency:
(a) Is provided special education and related services;
(i) In conformance with an IEP that meets the requirements of WAC 392-172-156 et seq.; and
(ii) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to education
provided by school districts and other public agencies, including the
requirements of this chapter; and
(c) Has all of the rights of a special education student who is served by a
school district or other public agency.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-520, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-520, filed 10/11/95, effective 11/11/95.]
WAC 392-172-522 Students in public
or private institutions. The state shall make arrangements with public and
private institutions (such as a memorandum of agreement or
special implementation procedures) as may be necessary to ensure that the
least restrictive environment provisions in this chapter are effectively
implemented.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-522, filed 10/11/95, effective 11/11/95.]
WAC 392-172-524 Technical
assistance training and monitoring activities. (1) The state shall carry out
activities to ensure that staff members and administrators in all public
agencies:
(a) Are fully informed about their responsibilities for implementing the
least restrictive environment requirements; and
(b) Are provided with technical assistance and training necessary to assist
them in this effort.
(2) The state shall carry out activities to ensure that the least restrictive
environment requirements are implemented by each public agency.
If there is evidence that a public agency delivers services in locations that
are inconsistent with the least restrictive environment requirements, the state
shall:
(a) Review the public agency’s justification for its actions; and
(b) Assist in planning and implementing any necessary corrective action.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-524, filed 10/11/95, effective 11/11/95.]
WAC 392-172-526 State
responsibility. The state shall ensure that to the extent consistent with
their number and location in the state, provision is made for the participation
of private school special education students in the program assisted or carried
out under this chapter by providing them with special education and related
services, in accordance with WAC
392-172-232 through 392-172-248.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-526, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-526, filed 10/11/95, effective 11/11/95.]
Comprehensive System of Personnel
Development
WAC 392-172-550 Comprehensive
system of personnel development. The superintendent of public instruction
shall establish and implement procedures for developing and conducting a
comprehensive system of personnel development that:
(1) Is consistent with the purposes of Part B of the Individuals with
Disabilities Education Act and the Part C Program for Infants and Toddlers with
Disabilities;
(2) Is designed to ensure an adequate supply of qualified special education,
general education, and related services personnel;
(3) Meets the requirements of 34 CFR 300.381 and 300.382; and
(4) Is updated at least every five years.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-550, filed 12/1/99, effective
1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-550, filed 10/11/95, effective 11/11/95.]
WAC 392-172-552 Definitions.
The following definitions apply to this chapter:
(1) "Appropriate professional requirements in the state," means those entry
level requirements that are based on the highest requirements in the state
applicable to the profession or discipline in which a person is providing
special education or related services and that establish suitable qualifications
for personnel providing special education and related services under Part B of
the IDEA to special education children and youth who are served by state, local,
and private agencies;
(2) "Highest requirements in the state applicable to a specific profession or
discipline," means the highest entry-level academic degree needed for any
state-approved or recognized certification, licensing, or registration or other
comparable requirements that apply to that profession or discipline;
(3) "Profession or discipline," means a specific occupational category that
provides special education and related services to special education children
and youth under Part B of the IDEA, has been established or designated by the
state, and has a required scope of responsibility and degree of supervision, and
is not limited to traditional occupational categories;
(4) "Qualified" means that a person, in accordance with the provisions
contained in 34 CFR 300.136 of the Individuals with Disabilities Education Act
and WAC 392-172-200, has met
superintendent of public instruction approved or recognized certification,
licensing, registration, or other comparable requirements for the profession or
discipline in which the person is providing special education and related
services; and
(5) "State-approved or state-recognized certification, licensing,
registration, or other comparable requirements" means the requirements that the
state legislature either has enacted or has authorized a state agency to
promulgate through rules to establish the entry-level standards for employment
in a specific profession or discipline in the state.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-552, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-552, filed 10/11/95, effective 11/11/95.]
WAC 392-172-553 Adequate supply of
qualified personnel. The office of superintendent of public instruction
shall complete an analysis of state and local needs for professional development
for personnel to serve special education students that includes, at a
minimum:
(1) The number of personnel providing special education and related services;
and
(2) Relevant information on current and anticipated personnel vacancies and
shortages (including the number of individuals with temporary certification),
and on the extent of certification or retraining necessary to eliminate these
shortages, that is based, to the maximum extent possible, on existing
assessments of personnel needs.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-553, filed 12/1/99, effective
1/1/00.]
WAC 392-172-559 Improvement
strategies. After conducting the analysis described in WAC 392-172-553, the office of
superintendent of public instruction shall develop strategies
to address the needs identified under WAC 392-172-553, and in accordance with
federal requirements in 34 CFR 300.382.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-559, filed 12/1/99, effective
1/1/00.]
WAC 392-172-561 School district
implementation of comprehensive system of personnel development. Each school
district or other public agency shall have on file with the office of
superintendent of public instruction information to demonstrate that:
(1) All personnel necessary to carry out Part B of the IDEA within the
jurisdiction of the school district or other public agency are appropriately and
adequately prepared consistent with WAC
392-172-550 et seq.; and
(2) To the extent the school district or other public agency determines
appropriate, it shall contribute to and use the comprehensive system of
personnel development of the state established under WAC 392-172-550 et seq.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-561, filed 12/1/99, effective
1/1/00.]
WAC 392-172-572 Personnel
standards. In order to ensure that all personnel necessary to carry out the
purposes of Part B the Individuals with Disabilities Education Act are
appropriately and adequately prepared and trained, the superintendent of public
instruction shall:
(1) Establish and maintain standards for personnel providing special
education and related services; and
(2) Determine that all personnel providing special education and related
services perform these functions under state-approved or state-recognized
certification, licensure, or other comparable requirements that apply to the
area in which the person is providing special education and related
services.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-572, filed 10/11/95, effective 11/11/95.]
WAC 392-172-574 Professional
standards review. The superintendent of public instruction, shall
periodically review the professional requirements in the statutes necessary for
the provision of special education and related services. This professional
standards review must include the requirements of all statutes and the rules of
all state agencies applicable to serving special education students, and shall
include the standards of the superintendent of public instruction, the
department of licensing, the division of vocational rehabilitation, the
department of social and health services, and any other public agency
responsible for the licensing or certification of personnel who provide special
education or related services. In conducting this review, the superintendent of
public instruction must:
(1) Determine the highest standards applicable to each profession or
discipline based upon the most current information available to the
superintendent of public instruction;
(2) Identify those professions or disciplines for which the highest
requirements of the state apply;
(3) Identify those specific professions or disciplines for which the existing
personnel standards for special education or related services, including
standards for temporary or emergency certification are not based on the highest
requirement in the state applicable to that specific profession or discipline;
and
(4) For those professions or disciplines for which the highest requirements
of the state do not apply, detail the steps the superintendent of public
instruction is taking (and the procedures for notifying public agencies and
personnel of those steps and the time lines it has established) for the
retraining or hiring of personnel that meet the appropriate professional
requirements in the state of Washington. In determining the status of personnel
standards for each applicable profession or discipline in the state (as defined
in WAC 392-172-572), the
superintendent of public instruction’s review and determination must be based on
current information that accurately describes, for each profession or discipline
in which personnel are providing special education or related services, whether
the applicable standards are consistent with the highest requirements in the
state for that profession or discipline.
The results of the review conducted in accordance with the provision of this
section shall be submitted to the state advisory council for special education.
Supporting documentation must be maintained in the files of the superintendent
of public instruction’s special education section and must be available to the
public.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-574, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-574, filed 10/11/95, effective 11/11/95.]
WAC 392-172-576 Personnel
shortages-Requirement. Each school district or other public agency will make
a good faith effort to recruit and hire appropriately and adequately trained
personnel to provide special education and related services. Where there are
shortages of personnel that meet these qualifications, the school district or
other public agency will make a good faith effort to recruit and hire the most
qualified individuals available.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-576, filed 12/1/99, effective
1/1/00.]
Performance Goals and
Indicators
WAC 392-172-57700 Performance
goals and indicators. (1) The office of superintendent of public instruction
shall establish goals for the performance of special education students that
promote the purposes of the Individuals with Disabilities Education Act and are
consistent, to the maximum extent appropriate, with the state’s four learning
goals and essential academic learning requirements for all students.
(2) In addition, the office of superintendent of public instruction shall
establish performance indicators that shall be used to assess progress toward
achieving those goals that at a minimum address the performance of special
education students on assessments, dropout rates, and graduation rates.
(3) The office of superintendent of public instruction shall report to the
U.S. Secretary of Education and the public every two years on the progress of
the state and of special education students in the state toward meeting the
goals established under this section. Based on its assessment of that progress,
the office of superintendent of public instruction shall revise its state
improvement plan under subpart 1 of Part D of the IDEA as may be needed to
improve its performance, if the state receives assistance under that
subpart.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-57700, filed 12/1/99, effective
1/1/00.]
Participation in Assessments and Reporting
Results
WAC 392-172-57800 Participation
in assessments and reporting results. (1) The office of superintendent of
public instruction shall file with the U.S. Secretary of Education information
to demonstrate that special education students are included in general state and
district-wide assessment programs, with appropriate accommodations and
modifications in administration if necessary.
(2) As appropriate the office of superintendent of public instruction, school
districts or other public agencies shall:
(a) Develop guidelines for the participation of special education students in
alternate assessments for those students who cannot participate even with
accommodations or modifications in state and district-wide assessment
programs;
(b) Develop alternate assessments; and
(c) Begin not later than July 1, 2000, to conduct the alternate
assessments.
(3) In implementing this section, the office of superintendent of public
instruction shall make available to the public, and report to the public with
the same frequency and in the same detail as it reports on the assessment of
nondisabled students, the following information:
(a) The number of special education students participating in:
(i) General assessments; and
(ii) Alternate assessments.
(b) The performance results of special education students:
(i) Participating in general assessments; and
(ii) On alternate assessments (not later than July 1, 2000,) if doing so
would be statistically sound and would not result in the disclosure of
performance results identifiable to individual students.
(4) Reports to the public must include:
(a) Aggregated data that include the performance of special education
students together with all other students; and
(b) Disaggregated data on the performance of special education students.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-57800, filed 12/1/99, effective
1/1/00.]
Suspension and Expulsion
Rates
WAC 392-172-57900 Reporting on
suspension and expulsion rates. (1) Annually, school districts or other
public agencies shall report to the state on the rates of long-term suspensions
and expulsions of special education students and nondisabled students for the
preceding school year. The state shall examine this data to determine if
significant discrepancies are occurring:
(a) Among school districts or other public agencies; or
(b) Between nondisabled students and special education students within school
districts or other public agencies.
(2) If discrepancies are occurring, the state shall review and if
appropriate, require revisions in state, school district or other public agency
policies, procedures, and practices to ensure compliance with Part B of the
IDEA.
(3) Policies, procedures, and practices to be reviewed and, if appropriate,
revised include:
(a) The development and implementation of individualized education
programs;
(b) The use of behavioral interventions; and
(c) Procedural safeguards.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and
20 U.S.C. 1400 et seq. 99-24-137, § 392-172-57900, filed 12/1/99, effective
1/1/00.]
FUNDING PROCEDURES, STANDARDS
School District Eligibility
WAC 392-172-580 School district
eligibility-Requirements. As a condition of receipt and expenditure of
federal special education funds, a school district or other public agency shall
annually submit a request for federal funds to the superintendent of public
instruction, and conduct its special education and related services program in
compliance with the school district and other public agency’s state approved
plan. The request shall be made on forms developed and distributed by the
superintendent. Request forms shall include, but not be limited to, the
following assurance(s) and types of information:
(1) Assurance that:
(a) The school district or other public agency is in compliance with the
provisions of this chapter and the rules implementing Part B of Individuals with
Disabilities Education Act (34 CFR 300.1 et seq.) that may supplement this
chapter, including procedural safeguards;
(b) The district or other public agency shall remain in compliance with this
chapter and any such supplemental rules for the entire school year; and
(c) The funds applied for shall be expended in compliance with the request,
this chapter, and any such supplemental federal rules, including excess cost,
nonsupplanting, and comparable services;
(2) The information and assurances required by 34 CFR 300.220 through 34 CFR
300.250 and any other pertinent federal rules;
(3) Identification of the local district or other public agency designee
responsible for child identification activities and confidentiality of
information;
(4) A description of the policies, procedures and/or activities to be
implemented or continued to provide for:
(a) Identification, location and evaluation (child find) of special education
students including students in private schools;
(b) Confidentiality of personally identifiable information;
(c) Implementation of a system for personnel development;
(d) Involvement of parents of special education students, including the
participation of non-English speaking parents;
(e) Participation of special education students with students without
disabilities;
(f) Delivery of services to special education students in the least
restrictive environment;
(g) Development of individualized education programs for each eligible
special education student;
(h) Availability of career development and vocational education programs for
special education students;
(i) A description of the numbers and types of special education students
receiving special education and related services by placement option within the
school district and other public agency’s continuum of alternative
placements;
(j) A goal and detailed timetable for providing full educational opportunity
to all special education students, aged birth through twenty-one;
(k) Transition of students from Part C to preschool programs;
(l) Private school students;
(m) Performance goals and indicators;
(n) Participation in assessments and reporting results;
(o) Suspension and expulsion; and
(p) A description of the use of funds received under Part B of the
Individuals with Disabilities Education Act (34 CFR 300.1 et seq.).
(5) Any other pertinent information requested by the superintendent of public
instruction which is necessary for the management of the special education
program.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-580, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-580, filed 10/11/95, effective 11/11/95.]
WAC 392-172-582 Collaborative
requests. The superintendent of public instruction may require districts to
submit a collaborative request for payments under Part B of the Individuals with
Disabilities Education Act if it is determined that a single district or other
public agency would be disapproved because the district or other public agency
is unable to establish and maintain programs of sufficient size and scope to
effectively meet the educational needs of special education students. Districts
that apply for Part B funds in a collaborative request must meet the same
minimum requirements as a single district or other public agency applicant. The
request must be signed by the superintendent of each participating school
district or other public agency. The districts are jointly responsible for
implementing programs receiving payments under Part B of the Individuals with
Disabilities Education Act. The total amount of funds made available to the
affected school districts or other public agencies shall be equal to the sum
each would have received separately.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-582, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-582, filed 10/11/95, effective 11/11/95.]
WAC 392-172-583 Exception for
prior policies and procedures. If a school district or other public agency
has on file with the office of superintendent of public instruction polices and
procedures that demonstrate that the school district or other public agency
meets any requirement under WAC
392-172-580, including any policies and procedures filed under Part B of the
IDEA as in effect before June 4, 1997, the office of superintendent of public
instruction
shall consider the school district or other public agency to have met the
requirement for purposes of receiving Part B funds.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-583, filed 12/1/99, effective
1/1/00.]
WAC 392-172-584 Review and
amendment process. (1) Requests for Part B funding shall be submitted to the
office of superintendent of public instruction for review by program supervisors
using state checklist and for final approval by the superintendent’s
designee.
(2) Prior to making a final decision on a request for Part B funding, office
of superintendent of public instruction staff shall consider any decision
resulting from a hearing under WAC
392-172-350 that is adverse to the district or other public agency involved
in the decision.
(3) If a district or other public agency makes a significant amendment to its
policies and procedures, the district or other public agency must follow the
same steps it took for submitting its original request. The review and approval
process shall be the same as that used for an initial request for funds under
Part B of the Individuals with Disabilities Education Act.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-584, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-584, filed 10/11/95, effective 11/11/95.]
WAC 392-172-585 Amendments to
policies and procedures. (1) Policies and procedures submitted by a school
district or other public agency, in accordance with WAC 392-172-580, shall remain in effect
until a school district or other public agency submits to the office of
superintendent of public instruction modifications that a district or agency
decides are necessary.
(2) The office of superintendent of public instruction may require a school
district or other public agency to modify its policies and procedures, but only
to the extent necessary to ensure a district’s or agency’s compliance with Part
B of the IDEA, if:
(a) After June 4, 1997, the provisions of the IDEA or its implementing
regulations are amended;
(b) There is a new interpretation of the IDEA by federal or state courts;
or
(c) There is an official finding of noncompliance with federal or state law
or regulations.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-585, filed 12/1/99, effective
1/1/00.]
WAC 392-172-586 Notification of
grant award. The superintendent of public instruction shall notify a
district or other public agency in writing of:
(1) The amount of the grant under Part B of the Individuals with Disabilities
Education Act;
(2) The period during which the district or other public agency may obligate
the Part B funds; and
(3) The federal requirements that apply to the grant.
[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order
95-11), § 392-172-586, filed 10/11/95, effective 11/11/95.]
WAC 392-172-588 Availability of
information and public participation. Each district or other public agency
shall:
(1) Make policies and procedures, any evaluations, periodic program plans,
and reports relating to the Part B program available for public inspection;
and
(2) Provide reasonable opportunities for the participation by teachers,
parents of special education students, families, other interested agencies,
organizations, and individuals in the planning for and operation of the
Individuals with Disabilities Education Act Part B program as an integral part
of the overall school program; and
(3) At a minimum, a school district and other public agency’s procedures must
describe the steps taken to:
(a) Make policies and procedures and any required evaluations, plans, and
reports available to the public; and
(b) Involve the required constituency groups, as noted above, in the planning
and operation of the Part B program. Parental participation in the
individualized education program process does not constitute involvement in the
planning and operation of the program.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-588, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-588, filed 10/11/95, effective 11/11/95.]
WAC 392-172-590 Denial of
requests-Opportunity for hearing. (1) In the event the superintendent of
public instruction or designee proposes to deny, in whole or part, the request
of a district or other public agency for federal special education funds, the
district or other public agency shall be provided notice pursuant to RCW
34.05.434 of:
(a) Intent to deny the request of the district or other public agency;
and
(b) The school district and other public agency’s opportunity for a hearing
before the superintendent of public instruction or designee prior to a denial of
the request.
(2) The superintendent of public instruction shall provide an opportunity for
a hearing before the office of superintendent of public instruction disapproves
the request in accordance with the following procedures:
(a) The applicant shall request the hearing within thirty days of the action
of the superintendent of public instruction.
(b) Within thirty days after it receives a request, the superintendent of
public instruction shall hold a hearing on the record and shall review its
action.
(c) No later than ten days after the hearing the office of superintendent of
public instruction shall issue its written ruling, including findings of fact
and reasons for the ruling. If supported by substantial evidence, findings of
fact by the superintendent of public instruction are final.
(3) If the office of superintendent of public instruction determines that its
action was contrary to state or federal statutes or regulations that govern the
applicable program, the action shall be rescinded.
(4) If the superintendent of public instruction does not rescind its final
action after a review, the applicant may appeal to the United States Secretary
of Education. The applicant shall file a notice of the appeal with the United
States Secretary of Education within twenty days after the applicant has been
notified by the superintendent of public instruction of the results of the
agency’s review.
(5) The superintendent of public instruction shall make available at
reasonable times and places to each applicant all records pertaining to any
review or appeal an applicant is pursuing under this section, including records
of other applicants.
(6) The school district and other public agency’s request may be denied, in
whole or part, if the district or other public agency fails to request a hearing
or the hearing decision upholds the proposed basis for denial.
(7) Any school district or other public agency in receipt of a notice
described in this section shall, by means of a public notice, take the measures
necessary to bring a pending action pursuant to this section to the attention of
the public within its jurisdiction.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-590, filed 12/1/99, effective 1/1/00.
Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), §
392-172-590, filed 10/11/95, effective 11/11/95.]
WAC 392-172-595 Records related to
grant funds. (1) The superintendent of public instruction and districts
shall keep records that show:
(a) The amount of funds under the grant;
(b) How the funds were used;
(c) The total cost of the project;
(d) The share of that cost provided from other sources; and
(e) Other records to facilitate an effective audit.
(2) Records shall be maintained to show program compliance, including records
related to the location, evaluation and placement of special education students
and the development and implementation of individualized education programs.
Program and fiscal information records shall be available to authorized
representatives of the office of superintendent of public instruction for the
purpose of compliance monitoring under WAC
392-172-504 or auditing under WAC
392-172-512.
(3) Records shall be retained for five years after completion of the
activities for which grant funds were used.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-595, filed 12/1/99, effective
1/1/00.]
School District Use of Funds
WAC 392-172-600 School district or
other public agency use of amounts. The school district or other public
agency must have on file with the state information to demonstrate that amounts
provided under Part B of the IDEA:
(1) Will be expended in accordance with the applicable
provisions of this chapter;
(2) Will be used only to pay the excess costs of providing special education
and related services to special education students, consistent with this
chapter; and
(3) Will be used to supplement state, local and other federal funds and not
to supplant those funds.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-600, filed 12/1/99, effective
1/1/00.]
WAC 392-172-605 School district or
other public agency use of federal funds for preschool children. In general,
federal Part B funds are to be used for eligible special education students
birth through twenty-one years of age. Federal preschool funds under section 619
may only be used for eligible special education children aged three through five
years.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-605, filed 12/1/99, effective
1/1/00.]
WAC 392-172-610 School district or
other public agency maintenance of effort. (1) Except as provided under WAC 392-172-615 and 392-172-620, funds provided to school
districts or other public agencies under Part B of the IDEA may not be used to
reduce the level of expenditures for the education of special education students
made by it from local funds below the level of those expenditures for the
preceding fiscal year.
(2) Except as provided in subsection (3) of this section, the office of
superintendent of public instruction determines that a school district complies
with this section for purposes of establishing the school district’s eligibility
for an award for a fiscal year if the district budgets, for the education of
special education students, at least the same total or per-capita amount from
either of the following sources as the district spent for that purpose from the
same source for the most recent prior year for which information is
available:
(a) Local funds only.
(b) The combination of state and local funds.
(3) A district that relies on subsection (2)(a) of this section for any
fiscal year must ensure that the amount of local funds it budgets for the
education of special education students in that year is at least the same,
either in total or per capita, as the amount it spent for that purpose in:
(a) The most recent fiscal year for which information is available, if that
year is, or is before, the first fiscal year beginning on or after July 1, 1997;
or
(b) If later, the most recent fiscal year for which information is available
and the standard in subsection (2)(a) of this section was used to establish its
compliance with this section.
(4) The office of superintendent of public instruction may not consider any
expenditures made from funds provided by the federal government for which the
office of superintendent of public instruction is required to account to the
federal government or for which the district is required to account to the
federal government directly or through the office of superintendent of public
instruction in determining a district’s compliance with the requirement of this
section.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-610, filed 12/1/99, effective
1/1/00.]
WAC 392-172-615 School district or
other public agency exceptions to maintenance of effort. A school district
or other public agency may reduce the level of expenditures made by it under
Part B of the IDEA below the level of those expenditures for the preceding
fiscal year if the reduction is attributable to:
(1) The voluntary departure, by retirement or otherwise, or departure for
just cause, of special education or related services personnel, who are replaced
by qualified, lower-salaried staff;
(2) A decrease in the enrollment of special education students;
(3) The termination of the obligation of the district or agency, consistent
with this chapter, to provide a program of special education to a particular
special education student that is an exceptionally costly program as determined
by the state, because the student:
(a) Has left the jurisdiction of the district or agency;
(b) Has reached the age at which the obligation of the district or agency to
provide a free appropriate public education to the student has terminated;
or
(c) No longer needs the program of special education.
(4) The termination of costly expenditures for long-term purchases such as
the acquisition of equipment or the construction of school facilities.
(5) In order for a school district to invoke the exception in subsection (1)
of this section, the district must ensure that those voluntary retirements or
resignations and replacements are in full conformity with:
(a) Existing school board policies in the agency;
(b) The applicable collective bargaining agreement in effect at that time;
and
(c) Applicable state statutes.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-615, filed 12/1/99, effective
1/1/00.]
WAC 392-172-620 School district or
other public agency-Treatment of federal funds in certain fiscal years. (1)
For any fiscal year in which the total of federal funds available for IDEA-B
exceeds $4.1 billion dollars, a school district or other public agency may treat
as local funds up to twenty percent of the amount of funds it receives under
Part B of the IDEA that exceeds the amount it received under Part B of the IDEA
for the previous fiscal year. The requirements regarding supplanting and
maintenance of effort do not apply with respect to the amount that may be
treated as local funds under this section.
(2) If the state determines that a school district or other public agency is
not meeting the requirements of this chapter, the state may prohibit the
district or agency from treating funds received under Part B of the IDEA as
local funds under this section for any fiscal year, but only if it is authorized
to do so by the state constitution or a state statute.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-620, filed 12/1/99, effective
1/1/00.]
WAC 392-172-625 School-wide
programs under Title I of the ESEA. (1) A school district or other agency
may use funds received under Part B of the IDEA for any fiscal year to carry out
a school-wide program under section 1114 of the Elementary and Secondary
Education Act of 1965, except that the amount used in any school-wide program
may not exceed:
(a) The amount received by the district or agency under Part B for that
fiscal year; divided by the number of special education students in the
jurisdiction; multiplied by
(b) The number of special education students participating in the school-wide
program.
(2) The funds described in subsection (1) of this section may be used without
regard to WAC 392-172-600(1).
(3) The funds described in subsection (1) of this section must be considered
as federal Part B funds for purposes of calculating excess cost and
supplanting.
(4) Except as provided in subsections (2) and (3) of this section, all other
requirements of Part B must be met, including ensuring that special education
students in school-wide program schools:
(a) Receive services in accordance with a properly developed IEP; and
(b) Are afforded all of the rights and services guaranteed to special
education students under the IDEA.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-625, filed 12/1/99, effective
1/1/00.]
WAC 392-172-630 School district or
other public agency permissive use of funds. (1) Funds provided to a school
district or other public agency under the IDEA-B may be used for the costs of
special education and related services and supplementary aids and services
provided in a general class or other education related setting to a special
education student in accordance with the individualized education program of the
student, even if one or more nondisabled students benefit from these services;
and/or
(2) To develop and implement a fully integrated and coordinated services
system in accordance with WAC
392-172-635.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-630, filed 12/1/99, effective
1/1/00.]
WAC 392-172-635 School district or
other public agency coordinated services system. (1) A school district or
other public agency may use not more than five percent of the amount the
district or agency receives under Part B of the IDEA for any fiscal year, in
combination with other amounts (which must include amounts other than education
funds), to develop and implement a coordinated services system designed to
improve results for students and families, including special education students
and their families.
(2) In implementing a coordinated services system under this section, a
school district or other public agency may carry out activities that
include:
(a) Improving the effectiveness and efficiency of service delivery, including
developing strategies that promote accountability for results;
(b) Service coordination and case management that facilitate the linkage of
individualized education programs under Part B of the IDEA and individualized
family services plans under Part C of the IDEA with individualized service plans
under multiple federal and state programs, such as Title I of the Rehabilitation
Act of 1973 (vocational rehabilitation), Title XIX of the Social Security Act
(Medicaid) and Title XVI of the Social Security Act (supplementary security
income);
(c) Developing and implementing interagency financing strategies for the
provision of education, health, mental health, and social services, including
transition services and related services under the IDEA; and
(d) Interagency personnel development for individuals working on coordinated
services.
(3) If a school district or other public agency is carrying out a coordinated
services project under Title XI of the Elementary and Secondary Education Act of
1965 and a coordinated project under Part B of the IDEA in the same schools, the
district or agency shall use the amounts under this section in accordance with
the requirements of that title.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-635, filed 12/1/99, effective
1/1/00.]
School-Based Improvement Plan
WAC 392-172-640 School-based
improvement plan. (1) The state may grant authority to a school district or
other public agency to permit a public school (through a school-based standing
panel) to design, implement, and evaluate a school-based improvement plan for a
period not to exceed three years.
(2) A school district or other public agency may use Part B funds to permit a
public school within its jurisdiction to implement a school-based improvement
plan. The plan must be consistent with the purposes described in section 651(b)
of the IDEA (state program improvement grants). These purposes include reforming
and improving state systems for providing educational, early intervention, and
transitional services. The systems involved include professional development,
technical assistance, and the dissemination of knowledge about best practices to
improve results for students with disabilities.
(3) The plan must be designed to improve results for all special education
students and, as appropriate, for other students consistent with WAC 392-172-630.
(4) If the state grants the authority to a school district or other public
agency to develop a plan, the district or agency must have the sole
responsibility of oversight of all activities relating to the design,
implementation, and evaluation of any school-based improvement plan that a
public school is permitted to design under this section.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-640, filed 12/1/99, effective
1/1/00.]
WAC 392-172-645 Plan
requirements. (1) A school-based improvement plan described in WAC 392-172-640 is for those students who
attend the school for which the plan is designed and implemented.
(2) The plan must:
(a) Be designed, evaluated, and as appropriate, implemented by a school-based
standing panel established in accordance with WAC 392-172-650;
(b) Include goals and measurable indicators to assess the progress of the
public school in meeting these goals; and
(c) Ensure that all special education students receive the services described
in their individualized education programs.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20
U.S.C. 1400 et seq. 99-24-137, § 392-172-645, filed 12/1/99, effective
1/1/00.]
WAC 392-172-650 School district
responsibilities. A school district or other public agency that is granted
authority under WAC 392-172-640 to
develop a plan shall:
(1) Select each school under the jurisdiction of the district or agency that
is eligible to design, implement, and evaluate the plan;
(2) Require each school selected in accordance with criteria established by
the district or agency to establish a school-based standing panel to carry out
the duties described in WAC
392-172-645;
(3) Establish:
(a) Criteria that must be used by the district or agency in the selection of
an eligible school;
(b) Criteria that must be used by an eligible public |