State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004

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1 "Quality education for every child...every child a reader" State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004 State Board Policy 7219 Effective September 15, 2013 i Central High School Building Phone (601) Fax (601)

2 Notice of Non-Discrimination The Mississippi State Board of Education, the Mississippi Department of Education (MDE), the Mississippi School of the Arts, the Mississippi School for the Blind, the Mississippi School for the Deaf, and the Mississippi School for Mathematics and Science do not discriminate on the basis of race, color, religion, national origin, sex, age, or disability in the provision of educational programs and services or employment opportunities and benefits. The following office has been designated to handle inquiries and complaints regarding the non-discrimination policies of the above-mentioned entities. Director, Office of Human Resources Mississippi Department of Education 359 North West Street Suite 359 Jackson, Mississippi (601) ii Effective September 15, 2013

3 Foreword The MDE relied on the IDEA regulations at 34 C.F.R. sections (a) and (b) for guidance in the formulation of these policies. Under this federal mandate, each state shall 1. Ensure that any State rules, regulations and policies relating to IDEA conform to the requirements of the federal statute and regulations; 2. Identify in writing to local educational agencies (LEAs) located in the State and the Secretary of Education any such rule, regulation, or policy as a State-imposed requirement that is not required by the federal statute and regulations; and 3. Minimize the number of rules, regulations, and policies to which the LEAs and schools located in the State are subject under the federal statute and regulations. This federal mandate also requires that State rules, regulations, and policies support and facilitate LEA and school-level system improvement designed to enable children with disabilities to meet the challenging State student achievement standards. These policies include references to federal statutes, federal regulations, and State statutes that serve as the source of the requirements. Notes: Any Mississippi specific deviations from Federal Regulations are denoted in Bold Blue Italics. Omitted sections do not apply to LEAs. Reserved sections are reserved by the United States Department of Education, Office of Special Education Programs (USDE/OSEP). Effective September 15, 2013

4 History In December 2004, the Individuals with Disabilities Education Act (IDEA 2004) was reauthorized. During 2005 and 2006, the Mississippi Department of Education (MDE), Office of Special Education (OSE), engaged a broadly representative stakeholder group to review IDEA 2004 and recommend revised State policies and procedures for implementation. Approximately 50 members were selected, including parents of children with disabilities, superintendents, principals, special education directors, special education teachers, regular education teachers, representatives from various disability advocacy groups, representatives from institutions of higher education programs, representatives from other State agencies, and the court-appointed Mattie T. Consultants. The charge issued to the stakeholder group was to recommend to the MDE/OSE redesigned special education policies and procedures that were clear and concise and that would assist local school districts in being compliant with IDEA 2004 and the Modified Mattie T. Consent Decree. Members met throughout the fall of 2005 and the spring of 2006 to examine the federal statute, proposed federal regulations, policy language from other states and to engage in extensive discussion in the process of crafting their recommendations. A draft document was presented to the State Board of Education (SBE) in April 2006, and proposed policies were released to begin the public comment period under the Administrative Procedures Act (APA) process as required by IDEA and State law. Public hearings were conducted on a regional basis to offer maximum opportunities for Effective September 15, 2013

5 local stakeholders to provide input. Action on the draft policies was postponed awaiting final federal regulations from the United States Department of Education, Office of Special Education Programs (USDE/OSEP). Consequently, on July 21, 2006, the SBE adopted Policy Number 7219, which states that school districts are required to follow IDEA In August 2006, OSEP released the final IDEA 2004 regulations, which became effective on October 13, The OSE was directed to begin reordering and renumbering the proposed policies to closely follow the federal regulations, and the SBE approved a contract for a technical writer to assist in this process. During October and November 2006, additional meetings were scheduled with a stakeholder group. In March 2007, OSE staff began an internal vetting process to review all stakeholder input and revise the State policies to closely mirror the content of the federal regulations. During 2007 and 2008, significant time was spent on the internal review and editing process, which included continuous legal review and consultation with OSEP. In August 2008, OSEP issued additional final regulations, which became effective on December 31, The revised policy document was finalized in February 2009, and three separate stakeholder user groups, including special education directors, local superintendents, parents of children with disabilities and parent advocate representatives, reviewed the final draft of the proposed document. Effective September 15, 2013

6 The draft policies were submitted to the SBE on March 19, 2009, for review and discussion. A request to begin the APA process for 60 days of public review and comment was approved at the April 2009 board meeting. During the 60-day public comment period, four regional public hearings were held across the State as required by IDEA 2004 and public comment was obtained. In addition, public comments were accepted during the two Special Education Advisory Panel meetings held during the public comment period. All comments, written and oral, were considered. The policies were approved by the State Board of Education on June 19, The final APA process was followed and the State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004 are effective as of July 20, On April 19, 2013, the State Board of Education (SBE) granted approval to begin the Administrative Procedures Act (APA) process to amend State Board Policy 7219 (SBP 7219) which are the State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments (IDEA) of 2004 to address needed changes in requirements. These policies address the requirements of the federal regulations (34 C.F.R. 300 et. seq.) promulgated by the United States Department of Education, Office of Special Education Programs (OSEP). This update continues to reflect the department s commitment to locate, evaluate, and identify all students with disabilities throughout the State of Mississippi and to provide a free appropriate public education in the least restrictive environment to all eligible students. Effective September 15, 2013

7 The Office of Special Education (OSE) posted the proposed changes to SBP 7219 on its website. All comments, written and oral, were considered. The policies were approved by the State Board of Education on August 16, The final APA process was followed and the State Policies Regarding Children with Disabilities under the Individuals with Disabilities Education Act Amendments of 2004 are effective as of September 15, Effective September 15, 2013

8 TABLE OF CONTENTS SUBPART A GENERAL Purposes Applicability to State and local agencies Act Assistive technology device Assistive technology service Charter school Child with a disability Consent Core academic subjects Day; business day; school day Educational service agency Elementary school Equipment Evaluation Excess costs Free appropriate public education Highly qualified special education teachers Homeless children Include Indian and Indian tribe Individualized education program (IEP) Individualized education program committee Individualized family service plan (IFSP) Infant or toddler with a disability...39 Effective September 15, 2013

9 Institution of higher education Limited English proficient (LEP) Local educational agency (LEA) Native language Parent Parent training and information center Personally identifiable Public agency Related services Scientifically based research Secondary school Services plan Secretary Special education State State educational agency Supplementary aids and services Transition services Universal design Ward of the State...56 SUBPART B STATE ELIGIBILITY Free appropriate public education (FAPE) Limitation - exception to FAPE for certain ages FAPE methods and payments Residential placement Assistive technology Extended school year services (ESY)...61 Effective September 15, 2013

10 Nonacademic services Physical education Full educational opportunity goal (FEOG) Program options Child Find Individualized education programs (IEP) Routine checking of hearing aids and external components of surgically implanted medical devices LRE requirements Continuum of alternative placements Placements Nonacademic settings Children in public or private institutions Technical assistance and training activities Monitoring activities Procedural safeguards Evaluation Confidentiality of personally identifiable information Transition of children from the IDEA Part C Program to Part B preschool programs (Reserved) State responsibility regarding children in private schools Definition of parentally-placed private school children with disabilities Child Find for parentally-placed private school children with disabilities Provision of services for parentally-placed private school children with disabilities basic requirements Expenditures Consultation Written affirmation...80 Effective September 15, 2013

11 Compliance Equitable services determined Equitable services provided Location of services and transportation Due process complaints and State complaints Requirement that funds not benefit a private school Use of personnel Separate classes prohibited Property, equipment, and supplies Applicability of through Responsibility of Public Agencies Implementation by MDE Placement of children by parents when FAPE is at issue SEA responsibility for general supervision SEA implementation of procedural safeguards Adoption of State complaint procedures Minimum State complaint procedures Filing a complaint Methods of ensuring services Hearings relating to LEA eligibility Personnel qualifications Performance goals and indicators (Reserved) (Reserved) (Reserved) (Reserved) Supplementation of State, local, and other federal funds Maintenance of State financial support Effective September 15, 2013

12 Waiver of requirement regarding supplementing and not supplanting with Part B funds Public participation Rule of construction State Advisory Panel Membership Duties Suspension and expulsion rates Annual description of use of IDEA Part B funds Access to instructional materials Overidentification and disproportionality Prohibition on mandatory medication The MDE as provider of FAPE or direct services Exception for prior State plans State s sovereign immunity and positive efforts to employ and advance qualified individuals with disabilities (Omitted) Assistance under other federal programs State administration SUBPART C LOCAL EDUCATIONAL AGENCY ELIGIBILITY Condition of assistance Consistency with State policies Use of amounts Maintenance of effort Exception to maintenance of effort Adjustment to local fiscal efforts in certain fiscal years Schoolwide programs under Title I of ESEA Personnel development Effective September 15, 2013

13 Permissive use of funds Treatment of charter schools and their students Purchase of instructional materials Information for the MDE Public information Records regarding migratory children with disabilities (Reserved) Exception for prior local plans Notification of LEA or State agency in case of ineligibility LEA and State agency compliance Joint establishment of eligibility Requirements for establishing eligibility (Reserved) Early intervening services Direct services by the MDE State agency eligibility Disciplinary information MDE flexibility SUBPART D EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS Parental consent Initial evaluations Reevaluations Evaluation Procedures Additional requirements for evaluations and reevalutions Determination of eligibility Specific learning disabilities Effective September 15, 2013

14 Additional group members Determining the existence of a specific learning disabilities (SLD) Observation Specific documentation for the eligibility determination Definition of individualized education program IEP committee Parent participation When IEPs must be in effect Development, review, and revision of IEP Private school placements by public agencies (Reserved) Educational placements Alternative means of meeting participation SUBPART E PROCEDURAL SAFEGUARDS Responsibilities of Public Agencies Opportunity to examine records; parent participation in meetings Independent educational evaluation Prior notice by the public agency, content of notice Procedural safeguards notice Electronic mail Mediation Filing a due process complaint Due process complaint Model form Resolution process Impartial due process hearing Hearing rights Effective September 15, 2013

15 Hearing decisions Finality of decision; appeal; impartial review Timelines and convenience of hearings and reviews Civil action Attorneys fees Child s status during proceedings Surrogate parents Transfer of parental rights at age of majority (Reserved) Authority of school personnel Determination of setting Appeal Placement during appeals Protections for children not determined eligible for special education and related services Referral to and action by law enforcement and judicial authorities Change of placement because of disciplinary removals (Omitted) (Reserved) SUBPART F MONITORING, ENFORCEMENT, CONFIDENTIALITY, AND PROGRAM INFORMATION State monitoring and enforcement State performance plans and data collection State use of targets and reporting (Omitted) (Omitted) (Omitted) Public Attention Effective September 15, 2013

16 (Omitted) State enforcement (Omitted) (Omitted) Definitions Notice to parents Access rights Record of access Records on more than one child List of types and locations of information Fees Amendments of records at parent s request Opportunity for a hearing Result of hearing Hearing procedures Consent Safeguards Destruction of information Children s rights Enforcement (Omitted) Annual report of children served report requirement Annual report of children served information required in the report Data reporting Annual report of children served certification Annual report of children served criteria for counting children Annual report of children served other responsibilities of the MDE Effective September 15, 2013

17 Disproportionality SUBPART G AUTHORIZATION, ALLOTMENT, USE OF FUNDS, AND AUTHORIZATION OF APPROPRIATIONS (Omitted) (Omitted) (Omitted) (Omitted) State-level activities Subgrants to LEAs (Reserved) (Omitted) SUBPART H PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES In general (Reserved) Definition of State Eligibility (Reserved) Eligibility for financial assistance Allocations to states Increase in funds Limitations Decrease in funds (Reserved) Reservation for State activities State Administration Other State-level activities Subgrants to LEAs Effective September 15, 2013

18 Allocations to LEAs Reallocation of LEA funds Part of IDEA inapplicable SPECIAL EDUCATION ELIGIBILITY DETERMINATION GUIDELINES..289 DISABILITY CATEGORIES Autism (AU) Deaf-Blind (DB) Developmentally Delayed (DD) Emotional Disability (EmD) Hearing Impairment (HI) Intellectual Disability (ID) Language-Speech Impairment (LS) Multiple Disabilities (MD) Orthopedic Impairment (OD) Other Health Impairment (OHI) Specific Learning Disability (SLD) Traumatic Brain Injury (TBI) Visually Impaired (VI) PROGRAM IMPROVEMENT MONITORING 327 REFERENCE GUIDE Effective September 15, 2013

19 SUBPART A GENERAL Purposes and Applicability Section Purposes The purposes of these policies are (a) To ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; (b) To ensure that the rights of children with disabilities and their parents are protected; (c) To assist localities and educational service agencies in providing for the education of all children with disabilities; and (d) To assess and ensure the effectiveness of efforts to educate children with disabilities Applicability to State and local agencies (a) States. These policies apply to the State of Mississippi and all public agencies as recipients of payments under Part B of IDEA. (b) Public agencies within the State of Mississippi. The provisions of these policies (1) Apply to all political subdivisions of the State of Mississippi that are involved in the education of children with disabilities, including 18 Effective September 15, 2013

20 (i) The Mississippi Department of Education (MDE). (ii) Local educational agencies (LEAs), educational state agencies, and public charter schools that are not otherwise included as LEAs or educational state agencies and are not a school of an LEA or educational state agency. (iii) Other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for children with deafness or children with blindness). (iv) State and local juvenile and adult correctional facilities and regional juvenile detention centers; and (2) Are binding on each public agency in Mississippi that provides special education and related services to children with disabilities, regardless of whether that agency is receiving funds under Part B of IDEA. (c) Private schools and facilities. Each public agency in Mississippi is responsible for ensuring that the rights and protections under Part B of IDEA are given to children with disabilities (1) Referred to or placed in private schools and facilities by that public agency; or (2) Placed in private schools by their parents under the provisions of (Placement of Children by Parents when FAPE is at Issue). 19 Effective September 15, 2013

21 Definitions Section Act Act means the Individuals with Disabilities Education Act (IDEA), as amended Assistive technology device 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 a child with a disability. The term does not include a medical device that is surgically implanted, or the replacement of such device Assistive technology service Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes (a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child s customary environment; (b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities; (c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; 20 Effective September 15, 2013

22 (d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; (e) Training or technical assistance for a child with a disability or, if appropriate, that child s family; and (f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child Charter school Charter school has the meaning given the term in section 5210(1) of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C et seq. (ESEA). See Reference Guide Child with a disability (a) General. (1) Child with a disability means a child evaluated as having an intellectual disability, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (also referred to as an emotional disability), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, 21 Effective September 15, 2013

23 deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. (2) (i) If it is determined, through an appropriate evaluation, that a child has one of the disabilities identified above, but only needs a related service and not special education, the child is not a child with a disability as defined in (ii) If, consistent with (a)(2), the related service required by the child is considered special education rather than a related service under State standards (see (a)(1)&(2)), the child would be determined to be a child with a disability as defined in Note: Miss. Code Ann mandates free appropriate public educational services and equipment for exceptional children in the age range of three (3) through twenty (20) for whom the regular school programs are not adequate. (b) Children aged birth through nine (9) experiencing developmental delays. Child with a disability for children aged birth through nine (9) includes a child (1) Who is experiencing developmental delays, as defined herein and as measured by appropriate diagnostic instruments and procedures, in two (2) or more of the following areas: physical development, cognitive development, communication development, social/emotional/behavioral development, or adaptive development; and (2) Who, by reason thereof, needs special education and related services. 22 Effective September 15, 2013

24 (3) Children included in the definition of Developmentally Delayed either have (i) Established delays in two (2) or more of the following areas (A) Cognitive The ability to think, which includes processes such as reasoning, problem solving, inferring, conceptualizing, classifying, symbolizing, imagery and memory; and/or (B) Fine and/or gross motor Motor skills requiring the control of small, coordinated movements or motor skills used for body control such as standing, walking and climbing; and/or (C) Language The ability to acquire, use and comprehend symbols utilized in communication; and/or (D) Social behavior The ability to build or maintain ageappropriate interpersonal relationships; and/or (E) Adaptive behavior the effectiveness with which the individual meets the standards of personal independence and social responsibility expected of his age; or (ii) A diagnosed disorder of known etiology which will affect development in a negative fashion and has a high probability of resulting in a developmental delay. (4) Mississippi has determined that DD applies to the age range birth through nine (9) years. A new determination must occur before the child s tenth (10 th ) birthday. 23 Effective September 15, 2013

25 (c) Definitions of disability terms. The terms used in this definition of a child with a disability are defined as follows (1) (i) Autism (AU) (also commonly referred to as Autism Spectrum Disorder) means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three (3), that adversely affects a child s educational performance. 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 response to sensory experiences. Included in the Autism category are the Pervasive Developmental Disorders, including Autistic Disorder, Asperger Disorder, Pervasive Developmental Disorder-Not Otherwise Specified, Rett s Disorder, and Childhood Disintegrative Disorder. (ii) Autism does not apply if a child s educational performance is adversely affected primarily because the child has an emotional disability as defined in 300.8(c)(4). (iii) A child who manifests the characteristics of Autism after age three (3) could be identified as having Autism if the criteria in the definition of Autism described above are satisfied. (2) Deaf-blindness (DB) means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that 24 Effective September 15, 2013

26 they cannot be accommodated in special education programs solely for children with deafness or children with blindness. (3) Deafness (HI) means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing with or without amplification that adversely affects a child s educational performance. (4) (i) Emotional disability (EmD) (also referred to as serious emotional disturbance) means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, that adversely affects a child s educational performance (A) An inability to learn that 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. (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (ii) Emotional disability includes schizophrenia. The term does not refer to children who are socially maladjusted, unless it is determined that they have an emotional disability under 300.8(c)(4)(i). 25 Effective September 15, 2013

27 (5) Hearing impairment (HI) means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child s educational performance but that is not included under the definition of deafness as set forth above. (6) Intellectual Disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period that adversely affects a child s educational performance. (7) Multiple disabilities (MD) means concomitant impairments (such as intellectual disability-blindness or intellectual disability-orthopedic impairment), the combination of which causes such severe educational needs that the student cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include Deaf-Blindness, Specific Learning Disability, Developmental Delay, or Language or Speech Impairment. (8) Orthopedic impairment (OI) means a severe orthopedic impairment that adversely affects a child s educational performance. The term includes impairments caused by a congenital anomaly (e.g., clubfoot or absence of one or more members), impairments caused by disease (e.g., poliomyelitis or bone tuberculosis), and impairments resulting from other causes (e.g., cerebral palsy, amputations, and fractures or burns causing contractures). 26 Effective September 15, 2013

28 (9) Other health impairment (OHI) means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD), diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette Syndrome; and (ii) Adversely affects a child s educational performance. (10) Specific learning disability (SLD) (i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the 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. (ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disability or of environmental or cultural differences, or economic disadvantage. 27 Effective September 15, 2013

29 (11) Speech or language impairment (LS) means a communication disorder, such as fluency, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child s educational performance. (12) Traumatic brain injury (TBI) 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 a child s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more 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 to brain injuries induced by birth trauma. (13) Visual impairment (VI) including blindness means an impairment in vision that, even with correction, adversely affects a child s educational performance. The term includes both partial sight and blindness. 28 Effective September 15, 2013

30 300.9 Consent Consent means that (a) The parent 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) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and (c) (1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime. (2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked). (3) If the parent revokes consent in writing for their child s receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child s education records to remove any references to the child s receipt of special education and related services because of the revocation of consent Core academic subjects Core academic subjects means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography. 29 Effective September 15, 2013

31 Day; business day; school day (a) Day means calendar day unless otherwise indicated as business day or school day. (b) Business day means Monday through Friday, except for federal and State holidays (unless holidays are specifically included in the designation of business day, as in (d)(1)(ii)). (c) School Day (1) School day means any day, including a partial day that children are in attendance at school for instructional purposes. (2) School day has the same meaning for all children in school, including children with and without disabilities Educational service agency Educational service agency means (a) A regional public multiservice agency (1) Authorized by Mississippi law to develop, manage, and provide services or programs to LEAs; (2) Recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary schools and secondary schools of Mississippi; (b) Includes any other public institution or agency having administrative control and direction over a public elementary school or secondary school; and (c) Includes entities that meet the definition of intermediate educational unit in 602(23) of IDEA as in effect prior to June 4, Effective September 15, 2013

32 Elementary school Elementary school means a nonprofit institutional day or residential school, including a public elementary charter school that provides elementary education, as determined under Mississippi law Equipment Equipment means (a) Machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house the machinery, utilities, or equipment; and (b) All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials Evaluation Evaluation means procedures used in accordance with federal or State regulations to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. (See definition of evaluation in through ) 31 Effective September 15, 2013

33 Excess costs Excess costs means those costs that are in excess of the average annual per-student expenditure in an LEA during the preceding school year for an elementary school or secondary school student, as may be appropriate, and that must be computed after deducting (a) Amounts received (1) Under Part B of IDEA; (2) Under Part A of Title I of the ESEA; and (3) Under Parts A and B of Title III of the ESEA and; (b) Any State or local funds expended for programs that would qualify for assistance under any of the parts described in paragraph (a) above, but excluding any amounts for capital outlay or debt service. (See Appendix A to part 34 C.F.R. for an example of how excess costs must be calculated.) Free appropriate public education Free appropriate public education or FAPE means special education and related services that (a) Are provided at public expense, under public supervision and direction, and without charge; (b) Meet the standards of the MDE and the requirements of the IDEA 2004 regulations; (c) Include an appropriate preschool, elementary school, or secondary school education in Mississippi; and 32 Effective September 15, 2013

34 (d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of through Highly qualified special education teachers (a) Requirements for special education teachers teaching core academic subjects. For any public elementary or secondary school special education teacher teaching core academic subjects, the term highly qualified has the meaning given the term in section 9101 of the ESEA and 34 C.F.R , except that the requirements for highly qualified also (1) Include the requirements described in paragraph (b) below; and (2) Include the option for teachers to meet the requirements of section 9101 of the ESEA by meeting the requirements of paragraphs (c) and (d) below; (b) Requirements for special education teachers in general. (1) When used with respect to any public elementary school or secondary school special education teacher teaching in Mississippi, highly qualified requires that (i) The teacher has obtained full State certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the State special education teacher licensing examination, and holds a license to teach in Mississippi as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, highly qualified means that 33 Effective September 15, 2013

35 the teacher meets the requirements set forth in Mississippi's public charter school law; (ii) The teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and (iii) The teacher holds at least a bachelor's degree. (2) A teacher will be considered to meet the standard in paragraph (b)(1)(i) above if that teacher is participating in an alternative route to special education certification program under which (i) The teacher (A) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching; (B) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program; (C) Assumes functions as a teacher only for a specified period of time not to exceed three (3) years; and (D) Demonstrates satisfactory progress toward full certification as prescribed by the State Board of Education (SBE); and (ii) The State ensures, through its certification and licensure process, that the provisions in paragraph (b)(2)(i) above are met. 34 Effective September 15, 2013

36 (3) Any public elementary school or secondary school special education teacher teaching in Mississippi, who is not teaching a core academic subject, is highly qualified if the teacher meets the requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and (b)(2) above. (c) Requirements for special education teachers teaching to alternate achievement standards. When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under 34 C.F.R. section 200.1(d), highly qualified means the teacher, whether new or not new to the profession, may either (1) Meet the applicable requirements of section 9101 of the ESEA and 34 C.F.R for any elementary, middle, or secondary school teacher who is new or not new to the profession; or (2) Meet the requirements of subparagraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards, as determined by the SBE. (d) Requirements for special education teachers teaching multiple subjects. When used with respect to a special education teacher who teaches two (2) 35 Effective September 15, 2013

37 or more core academic subjects exclusively to children with disabilities, highly qualified means that the teacher may either (1) Meet the applicable requirements of section 9101 of the ESEA and 34 C.F.R (b) or (c); (2) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under 34 C.F.R (c) which may include a single, high objective uniform State standard of evaluation covering multiple subjects; or (3) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate, not later than two (2) years after the date of employment, demonstrate competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under 34 C.F.R (c). (e) (f) (Omitted) Rule of construction. Notwithstanding any other individual right of action that a parent or student may maintain, nothing in this part shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular public agency employee to be highly qualified, or to prevent a parent from filing a complaint under Effective September 15, 2013

38 through about staff qualifications with the MDE. (g) Applicability of definition to ESEA; and clarification of new special education teacher. (1) A teacher who is highly qualified under this section is considered highly qualified for purposes of the ESEA. (2) A new special education teacher who teaches multiple subjects, and who is highly qualified in mathematics, language, arts, or science, must demonstrate, not later than two (2) years after the date of employment, competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher. A fully certified general education teacher who subsequently becomes fully certified or licensed as a special education teacher is a new special education teacher when first hired as a special education teacher. (h) Private school teachers not covered. The requirements in this section do not apply to teachers hired by private elementary schools and secondary schools including private school teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities under Effective September 15, 2013

39 Homeless children Homeless children has the meaning given the term homeless children and youth in section 725 (42 U.S.C a) of the McKinney-Vento Homeless Assistance Act, as amended, 42 U.S.C et seq. See Reference Guide Include Include means that the items named are not all of the possible items that are covered, whether like or unlike the ones named Indian and Indian tribe (a) (b) Indian means an individual who is a member of an Indian tribe. Indian tribe means any federal or State Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska Native village or regional village corporation (as defined in or established under the Alaska Native Claims Settlement Act, 43 U.S.C et seq.). (c) Nothing in this definition is intended to indicate that the Secretary of the Interior is required to provide services or funding to a State Indian tribe that is not listed in the Federal Register list of Indian entities recognized as eligible to receive services from the United States, published pursuant to Section 104 of the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a Effective September 15, 2013

40 Individualized education program (IEP) Individualized education program or IEP means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with through Individualized education program committee Individualized education program committee or IEP committee means a group of individuals described in that is responsible for developing, reviewing, or revising an IEP for a child with a disability Individualized family service plan (IFSP) Individualized family service plan or IFSP has the meaning given the term in section 636 of IDEA Infant or toddler with a disability The term infant or toddler with a disability (a) Means a child under three (3) years of age who needs early intervention services because the child (1) Is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in one (1) or more of the areas of cognitive development, physical development, communication development, social or emotional development, and adaptive development; or 39 Effective September 15, 2013

41 (2) Has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay Institution of higher education Institution of higher education means an educational institution in any State that (a) Has the meaning given the term in section 101 of the Higher Education Act of 1965, as amended, 20 U.S.C et seq. (HEA); and (b) Also includes any community college receiving funds from the Secretary of the Interior under the Tribally Controlled Community College or University Assistance Act of 1978, 25 U.S.C. 1801, et seq Limited English proficient (LEP) Limited English proficient has the meaning given the term in section 9101(25) of the ESEA. See Reference Guide Local educational agency (LEA) (a) General. Local educational agency or LEA means a public board of education or other public authority legally constituted within Mississippi for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of the State, or for a combination of school districts or counties as are recognized in the State as an administrative agency for its public elementary schools or secondary schools. 40 Effective September 15, 2013

42 (b) Educational service agencies and other public institutions or agencies. The term includes (1) An educational service agency as defined in ; and (2) Any other public institution or agency having administrative control and direction of a public elementary school or secondary school, including a public nonprofit charter school that is established as an LEA under State law. (c) Bureau of Indian Affairs (BIA) funded schools. BIA funded schools include an elementary school or secondary school funded by the BIA, and not subject to the jurisdiction of any SEA other than the BIA, but only to the extent that the inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under IDEA with the smallest student population Native language (a) Native language, when used with respect to an individual who is limited English proficient, means the following (1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) below. 41 Effective September 15, 2013