|
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 AuthorityAuthority. 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 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 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 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 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 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 MonitoringMonitoring. (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 IImplementation 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 school in the establishment of a
school-based standing panel to carry out the duties described in WAC
392-172-645 that ensure that the membership of the panel reflects the diversity of the
community in which the public school is located and includes, at a minimum:
(i) Parents of special education students who attend a public school, including parents
of special education students from unserved and underserved populations, as appropriate;
(ii) Special education and general education teachers of public schools;
(iii) Special education and general education administrators, or the designee of those
administrators, of those public schools; and
(iv) Related services providers who are responsible for providing services to the
special education students who attend those public schools.
(c) Criteria that must be used by the district or agency with respect to the
distribution of funds under Part B of the IDEA to carry out this section.
(4) Disseminate the criteria to local school district personnel and local parent
organizations within the jurisdiction of the district or agency;
(5) Require a public school that desires to design, implement, and evaluate a
school-based improvement plan to submit an application at the time, in the manner and
accompanied by the information, that the district or agency shall reasonably require; and
(6) Establish procedures for approval by the district or agency of a school-based
improvement plan designed under 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, § 392-172-650, filed 12/1/99, effective 1/1/00.]
WAC 392-172-655 Limitation. A
school-based improvement plan may be submitted to a district or agency, for approval only
if a consensus with respect to any matter relating to the design, implementation, or
evaluation of the goals of the plan is reached by the school-based standing panel that
designed the plan.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq.
99-24-137, § 392-172-655, filed 12/1/99, effective 1/1/00.]
WAC 392-172-660 Additional requirements.
(1) In carrying out the requirements of WAC 392-172-640 et seq., a school district or
other public agency shall ensure that the parents of special education students are
involved in the design, evaluation, or if appropriate, implementation of school-based
improvement plans in accordance with this section.
(2) A district or agency may approve a school-based improvement plan of a public school
within its jurisdiction for a period of three years if:
(a) The approval is consistent with the policies, procedures, and practices established
by the district or agency in accordance with WAC 392-172-640 et seq.;
and
(b) A majority of the parents of students who are members of the school-based standing
panel and a majority of other members of the school-based standing panel that designed the
plan, agree in writing to the plan.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq.
99-24-137, § 392-172-660, filed 12/1/99, effective 1/1/00.]
WAC 392-172-665 Extension of plan. If
a public school within the jurisdiction of a school district or other public agency meets
the applicable requirements and criteria described in this section, at the expiration of
the three-year approval period, the district or agency may approve a school-based
improvement plan of the school for an additional three-year period.
[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq.
99-24-137, § 392-172-665, filed 12/1/99, effective 1/1/00.]
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