EXCEPTIONAL CHILD EDUCATION PROCEDURES 2008 JEFFERSON COUNTY PUBLIC SCHOOLS Dr. Sheldon H. Berman, Superintendent BOARD OF EDUCATION Joseph L. Hardesty, Chairman Stephen P. Imhoff, Vice-Chairman Linda Duncan Ann V. Elmore Carol Ann Haddad Larry Hujo Debbie Wesslund Jefferson County Public Schools Exceptional Child Education VanHoose Education Center P.O. Box 34020 Louisville, KY 40232-4020 Equal Opportunity/Affirmative Action Employer Offering Equal Educational Opportunities www.jcpsky.net
SUPERINTENDENT S MESSAGE The Jefferson County Public School District (JCPS) is dedicated to a set of core beliefs. These beliefs are the foundation for preparing our students to achieve their goals, follow their dreams, and create a more just society. As an outgrowth of our belief system, we as district staff must create caring and culturally responsive classroom communities and must provide high-quality, personalized instruction that challenges and engages all students. It is our responsibility to ensure that all students have equitable access to a consistent, world-class, inquiry-based curriculum. The district s structures, policies, and practices are designed to reflect a commitment to our core beliefs. The Exceptional Child Education Procedures manual translates this commitment into the specific steps that employees follow in order to effect systematic adherence to adopted procedural practices regarding students with special needs. The Exceptional Child Education Procedures manual delineates the procedures adopted by the district to implement the Kentucky Administrative Regulations and represents the efforts put forth by the district to be in complete compliance with those mandates. Research-based instructional strategies and the provision of a safe, respectful, and inclusive learning environment are integral facets of these procedures. These processes and practices are established to meet the needs of our students and are intended to foster consistent, effective service delivery. As a JCPS employee, you play a significant role in implementing these procedures. We thank you for taking the time to become knowledgeable with the procedures; for your diligence and efficiency in implementing them; and for your dedication to improving educational, social, and behavioral outcomes for every student. Sheldon H. Berman, Ed.D. Superintendent Jefferson County Public Schools
INTRODUCTION The Individuals with Disabilities Education Act (IDEA), as amended by the Individuals with Disabilities Education Improvement Act of 2004, has provided a policy framework to ensure that a Free Appropriate Public Education (FAPE) is available to all children and youth with disabilities. In addition, the Commonwealth of Kentucky has clarified federal requirements through the Kentucky Administrative Regulations (KARs). Kentucky s school districts must act within the parameters of the KARs to provide appropriate special education and related services to children and youth with disabilities. Revisions to the Exceptional Child Education Procedures manual became necessary following the revision of the KARs in 2007 to reflect changes in the federal laws governing the education of children and youth with disabilities. This manual has been revised to provide clear guidelines for procedures that apply to children and youth with disabilities and to provide support for staff in the district s effort to comply with all applicable regulations. Training will be made available annually to provide staff with the opportunity to become effective in the use of this manual.
Table of Contents Chapter 1 Definitions (707 KAR 1:002)...1 Section I Definitions...1 Chapter 2 Free Appropriate Public Education (707 KAR 1:290)...1 Section I Free Appropriate Public Education...1 No Cost to Parent...2 Section II ARC Placement of the Child or Youth in Private School or Agency Other Than the District...3 Other State Agencies Responsible for Education...5 Payment for Services and Contract Provisions...5 Section III Residential Program...6 Section IV Proper Functioning of Hearing Aids...7 Section V Program Options...7 Section VI Nonacademic Services...7 Section VII Physical Education...8 Section VIII Assistive Technology...8 Section IX Extended School Year Services...9 ARC Analysis of ESY Criteria...9 Consideration of ESY Services for Three- (3-) Year Old Children in Transition...10 Section X Prohibition of Mandatory Medication...11 Chapter 3 Child Find, Evaluation, and Reevaluation (707 KAR 1:300)...1 Section I Child Find System...1 Child Find Activities...1 Use of Screening Information...3 Use of Information Obtained Through Intake Procedures...3 Early-Intervention Transition Planning...3 Section II Child Tracking...4 Section III Coordinated Early Intervening System...5 Section IV Referral System...6 ARC Use of Referral Information...7 ARC Action...7 Failure of Referral to Support a Suspected Disability...8 Determination That a Disability Is Suspected...8 Section V Evaluation/Reevaluation...9 Initial Evaluation...9 Reevaluation...10 ARC Meeting to Discuss Need for Reevaluation...12 Section VI Test Criteria...14 Criteria and Responsibilities of Evaluation Personnel...16 Disproportionality...17 Written Evaluation Report...18 Section VII Summary of Academic Achievement and Functional Performance...19 Appendix A Child Find Notice...21 Chapter 4 Determination Of Eligibility (707 KAR 1:310)...1
Section I ARC Process... 1 Sufficient/Insufficient Evaluation Information... 3 Section II Determination of Eligibility... 3 Step 1: Presence of a Disability... 3 Step 2: Adverse Effect of Disability on Educational Performance... 4 Step 3: Determinant Factors... 4 Section III Categories of Disabilities... 6 Autism... 6 Deaf-Blindness... 7 Development Delay... 7 Emotional Behavioral Disability... 8 Hearing Impairment... 10 Mental Disability... 11 Multiple Disabilities... 12 Other Health Impaired... 13 Orthopedic Impairment or Physically Disabled... 14 Specific Learning Disabilities... 14 Speech or Language Impairment... 18 Traumatic Brain Injury... 19 Visual Impairment... 20 Chapter 5 Individual Education Program (707 KAR 1:320)... 1 Section I Individual Education Programs... 1 Accessibility of IEP to Staff Members Who Are Responsible for Implementation... 2 Section II Admissions and Release Committee Meetings... 2 Actions Prior to Meeting to Develop an IEP... 4 Notice of ARC Meetings... 4 ARC Meeting Discussions and Documentation of Proposed or Refused Actions... 5 ARC Decision-Making Process... 5 ARC Not Required to Meet for Minor Changes to IEP... 6 Section III ARC Membership... 6 Dismissal of Attendance... 7 Parents of the Child or Youth... 8 ARC Chairperson/District Representative... 8 Exceptional Child Education Teacher... 9 Regular Education Program Teacher... 9 Person Who Can Interpret Evaluation Results, Including Instructional Implications, If Appropriate... 10 Related Services Personnel, If Appropriate... 10 Student With a Disability, If Appropriate... 11 Other Individuals Who Are Knowledgeable About the Child or Youth... 11 Agency Representatives Involved in Transition Planning, If Appropriate.. 12 Section IV Parent Participation... 12 Methods to Ensure Parent Participation... 12 Conducting the ARC Meeting Without a Parent... 13 Changing the IEP When Parents Do Not Attend an ARC Meeting... 13 Section V Contents of the Individual Education Program... 14 ARC Considerations in IEP Development... 14 Present Levels of Academic Achievement and Functional Performance... 15
Developing Measurable Academic and Functional Annual Goals...15 Benchmarks or Short-Term Objectives...16 Measuring Student Progress...17 Specially Designed Instruction, Supplementary Aids and Services, Program Modifications, and Supports for School Personnel...17 Related Services...18 Participation in Statewide or Districtwide Assessments/Alternate Portfolios.....18 Participation in Least Restrictive Environment...19 Specifying Projected Dates for Initiation, Duration, Location and Frequency of Services and Modifications...19 Monitoring of Progress and Reporting to Parents...20 Section VI Transition Services...20 Preschool Transition...20 Post-School Transition...21 Section VII Services for Transfer Students...23 Provision of FAPE for a Transfer Student Within Kentucky...23 Temporary Placement...24 Students Who Transfer During the Evaluation Process...26 Section VIII Individual Education Program Accountability...26 Good-Faith Efforts...26 Inclusion in Statewide Assessments...26 Parents Retain All Due-Process Rights...26 Section IX Placement at Kentucky School for the Blind and Kentucky School for the Deaf...27 Initial and Continuing Placement at KSB or KSD...27 Records...27 Chapter 6 Placement Decisions (707 KAR 1:350)...1 Section I Placement Decisions...1 Participation With Children and Youth Who Are Not Disabled...1 Continuum of Alternative Placements...2 Placement Considerations...2 ARC Determination of Placement...4 Transfer From Another District or Educational Agency...5 Section II Change in Placement/Services...5 Release From Special Education and Related Services...6 Transfer and Withdrawal From School Prior to Program Completion...7 Graduating With a Diploma...7 Completion of Nondiploma Program (Certificate of Attainment)...8 Release Due to Aging Out...8 Summary of Performance...9 Length of School Day...9 Section III Caseload and Class Size for Exceptional Child Education Classrooms...10 Appendix A Caseload and Class Size Per 707 KAR 1:350...13 Chapter 7 Procedural Safeguards and State Complaint Procedures (707 KAR 1:340, Sections 1-12)...1 Section I Notice Parent Participation in Meetings...1 Written Notice of Admissions and Release Committee Meetings...1 Inspection and Review of Records...2 Conversation Without a Parent Present...3
Section II Independent Educational Evaluation... 3 Parental Right to an Independent Educational Evaluation... 3 Public Expense... 4 Private Expense (Parent)... 4 Section III Notice of Procedural Safeguards (Parent Rights)... 4 Section IV Written Notice of Proposed or Refused Action (Meeting Summary)... 5 Section V Parental Consent... 6 Consent for Initial Evaluation... 7 Consent When the Child Is in the Custody of the State or Foster Child... 7 Consent for Provision of Special Education and Related Services... 8 Consent for Reevaluation... 9 Denial or Revocation of Parental consent... 9 Section VI Representation of Children and Youth... 10 Determination of Representation... 10 Biological or Adoptive Parents... 11 Legal Guardian... 11 Person Acting as a Parent... 12 Commitment to Commonwealth of Kentucky Cabinet for Family and Children or Kentucky Department of Juvenile Justice... 12 Foster Parent... 13 Emancipation... 13 Surrogate Parent... 14 Section VII State Complaint Procedures... 17 Right to File a Complaint... 17 Procedures for Addressing the Complaint... 17 Right to Appeal a Written Decision From KDE/DECS... 18 Implementation of Final Decision... 18 Section VIII Mediation Procedures... 18 Right to Mediation... 18 Requirements of Mediation... 19 Dispute Resolution... 19 A Resolution to the Dispute... 20 Failure to Hold a Meeting... 20 Timeline of the Due-Process Hearing... 21 Section IX Due-Process Hearing Procedures... 21 Hearing Requests... 21 Appeal of Decision... 22 Student Status During Pendency of Judicial Proceedings... 23 Chapter 8 Discipline Procedures (707 KAR 1:340, Sections 13-17)... 1 Section I Discipline Procedures... 1 Student Behavior... 1 Suspensions for 5 Days or Less in a School Year... 1 Notice Prior to a Disciplinary ARC Meeting... 2 Suspensions of More Than 5 Cumulative Days In a School Year... 2 Functional Behavior Assessment and Behavior Intervention Plan... 2 Manifestation Determination... 3 Provision of Educational Services... 4 Placement in an Alternative Educational School or Program... 5
Changes in Placement to an Interim Alternative Educational Setting for Violations Involving Weapons, Illegal Drugs, and Controlled Substances...6 Section II Appeals from Placement Decisions...7 Section III Basis of Knowledge Regarding Students Not Yet Eligible...8 Evaluation Requests During Disciplinary Proceedings...9 Section IV Reporting to Law Enforcement Agencies...9 Reporting a Crime...9 Transmission of Records...10 Chapter 9 Confidentiality of Information (707 KAR 1:360)...1 Section I Access Rights...1 Inspection and Review of Education Records...1 Access to Education Records...1 Explanation and Interpretation of Records...2 Education Records...2 Test Protocols and Raw Data...2 Private Notes...3 Representative of Parent to Inspect and Review Records...3 Section II Record of Disclosure (Access)...3 Section III Records on More Than One Child or Youth...4 Section IV Lists of Types and Locations of Records...4 Section V Fees...4 Section VI Amendment of Records at Parent s Request...5 Section VII Opportunity for a Hearing...5 Section VIII Consent...6 Written Parental Consent...6 Disclosure Without Consent...7 Other Conditions for Release of Personally Identifiable Information...9 Parent Refusal to Release Information...9 Section IX Safeguards...10 Record Security...10 Training Regarding Confidentiality Issues...10 Listing of Persons Who May Have Access...11 Section X Destruction of Records...11 Section XI Rights of the Child or Youth...12 Section XII Records Regarding Migratory Children with Disabilities...12 Appendix A Student Education Records Request...13 Appendix B Record of Disclosure...17 Appendix C Authorization to Disclose/Request Information...21 Appendix D Access List ECE Student Records...25 Chapter 10 Children with Disabilities Who Are Enrolled in Private School (707 KAR 1:370)...1 Section I Child Find for Children with Disabilities Who Have Been Enrolled by Their Parents in Private School...1 Section II Parental Consent for Evaluation...1 Section III Determination of Services for Parentally Placed Private School Children...2 Determination of Proportionate Amount of Spending...2 Consultation With Representatives of Private Schools Regarding Services..3 Section IV Service Provided Under Services Plans...4
Section V Location of Services... 6 Section VI Due-Process Procedures... 6 Parents... 6 Private School May Submit Complaint... 6 Section VII Restrictions on Serving Nonpublic Students... 7 Section VIII Children with Disabilities Enrolled in Private Schools by Their Parents when FAPE Is an Issue... 8
CHAPTER 1 DEFINITIONS 707 KAR 1:002 SECTION I DEFINITIONS Admissions and Release Committee (ARC) means a group of individuals described in 707 KAR 1:320 Section 3 that is responsible for developing, reviewing, or revising an Individual Education Program (IEP) for a child with a disability. Adverse effect means that the progress of the child is impeded by the disability to the extent that the educational performance is significantly and consistently below the level of similar-age peers. 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 mean a medical device that is surgically implanted, or the replacement of such a device. 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. This term shall include: 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; D. Coordinating and using other therapies, interventions, or services with assistive technology devices, like 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 the child. Autism 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 responses to sensory experiences. The term will not apply if a child s educational performance is adversely affected primarily because the child has an emotional-behavior disability. Business day means Monday through Friday except for federal and state holidays, unless a holiday 1: Definitions 1
is specifically included in the designation of business day as in 707 KAR 1:370 Section 1. Caseload for special classes means the number of children with disabilities assigned to a teacher of exceptional children for the purpose of providing individualized special education and related services in a special class setting. Change of placement because of disciplinary removals means a change of placement occurs if: A. The removal is for more than ten (10) consecutive schools days; or B. The child has been subjected to a series of removals that constitute a pattern (which is determined on a case-by-case basis) because: 1. The series of removals total more than 10 school days in a school year; 2. The child s behavior is substantially similar to the child s behavior in previous incidents that resulted in the series of removals; and 3. Of additional factors including the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. Child with a disability means a child evaluated in accordance with 707 KAR 1:300, as meeting the criteria listed in the definitions in this section for autism, deaf-blindness, developmental delay, emotional-behavior disability, hearing impairment, mental disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, or visual impairment which has an adverse effect on the child s educational performance and who, as a result, needs special education and related services. Class size for resource classes means the number of children with disabilities assigned to a teacher of exceptional children per period, block, or the specified length of the time set by the individual school. Collaboration means, for purposes of determining class size in 707 KAR 1:350, Section 2, a teacher of exceptional children works with children with disabilities in the regular classroom to provide special education and related services. Complaint means a written allegation that a local education agency (LEA) has violated a requirement of the Individuals with Disabilities Education Act (IDEA) or an implementing administrative regulation and the facts on which the statement is based. Compliance means the obligations of state or federal requirements are met. Compliance monitoring report means a written description of the findings of an investigation, like on-site monitoring, citing each requirement found in noncompliance. Consent means: A. A parent has been fully informed of all information relevant to the activity for which consent is sought in his native language or other mode of communication; 2 1: Definitions
B. A parent understands and agrees in writing to the carrying out of the activity for which his consent is sought; and the consent describes the activity and lists the records, if any, that will be released and to whom; C. A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time; and, D. 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). Controlled substance means a drug or other substance identified under 21 U.S.C. Section 812(c). Core academic subjects means English, reading or language arts, mathematics, science, foreign language, civics and government, economics, arts, history, and geography. Corrective action plan (CAP) means a written improvement plan describing activities and timelines, with persons responsible for implementation, developed to correct identified areas of noncompliance, including directives from the Kentucky Department of Education (KDE) specifying actions to be taken to fulfill a legal obligation. Course of study means a multi-year description of coursework from the student s current school year to the anticipated exit year designed to achieve the student s desired post-school goals. Day means calendar day, unless otherwise indicated as business day or school day. Deaf-Blindness means concomitant hearing and visual impairments that have an adverse effect on the child s educational performance, the combination of which causes severe communication and other developmental and educational needs that cannot be accommodated in special education programs solely for children with deafness or children with blindness, unless supplementary assistance is provided to address educational needs resulting from the two (2) disabilities. Developmental delay (DD) means that a child within the ages of three (3) through eight (8) has not acquired skills or achieved commensurate with recognized performance expectations for his or her age in one (1) or more of the following developmental areas: cognition, communication, motor development, social-emotional development, or self-help/adaptive behavior. Developmental delay includes a child who demonstrates a measurable, verifiable discrepancy between expected performance for the child s chronological age and current level of performance. The discrepancy will be documented by: A. Scores of two (2) standard deviations or more below the mean in one (1) of the areas listed above as obtained using norm-referenced instruments and procedures; B. Scores of one and one-half standard deviations below the mean in two (2) or more of the areas listed above using norm-referenced instruments and procedures; or C. The professional judgment of the ARC that there is a significant atypical quality or pattern of development. Professional judgment will be used only where normed scores are inconclusive and the ARC documents in a written report the reasons for concluding that a child has a developmental delay. 1: Definitions 3
Education Records means records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Section 1232(g). Emotional-behavioral disability (EBD) means that a child, when provided with interventions to meet instructional and social-emotional needs, continues to exhibit one or more of the following, when compared to the child s peer and cultural reference groups, across settings, over a long period of time, and to a marked degree: A. Severe deficits in social competence or appropriate behavior which cause an inability to build or maintain satisfactory interpersonal relationships with adults or peers; B. Severe deficits in academic performance which are not commensurate with the student s ability level and are not solely a result of intellectual, sensory, or other health factors but are related to the child s social-emotional problem; C. A general pervasive mood of unhappiness or depression; or D. A tendency to develop physical symptoms or fears associated with personal or school problems. This term does not apply to children who display isolated (not necessarily one), inappropriate behaviors that are the result of willful, intentional, or wanton actions unless it is determined through the evaluations process that the child does have an emotional-behavioral disability. Enforcement means the KDE takes steps to ensure federal and state special education requirements are implemented. Extended school year services means specially designed instruction and related services that are provided to a child with a disability beyond the normal school year in accordance with the child s IEP at no cost to the parents. Free appropriate public education (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 KDE included in 707 KAR Chapter 1 and the Program of Studies, 704 KAR 3:303, as appropriate; C. Include preschool, elementary school, or secondary school education in the state; and D. Are provided in conformity with an IEP that meets the requirements of 707 KAR 1:320. Functional means activities and skills that are not considered academic or related to a child s academic achievement as measured on statewide assessments pursuant to 703 KAR Chapter 5. Hearing impairment (sometimes referred to as deaf or hard of hearing) means a hearing loss that: A. May be mild to profound, unilateral or bilateral, permanent or fluctuating, and is determined by: 1. An average pure tone hearing loss in the speech range (500 Hz, 1000 Hz, and 2000 Hz) of at least 25 db in the better ear; 4 1: Definitions
2. An average pure tone hearing loss in the high-frequency range (2000 Hz, 4000 Hz, and 6000 Hz) of at least 45 db in the better ear; or 3. An average pure-tone unilateral hearing loss in the speech range (500 Hz, 1000 Hz, and 2000 Hz) of at least 60dB in the impaired ear; and B. Results in difficulty identifying linguistic information through hearing; and C. Has an adverse effect on the child s educational performance. High school diploma means the student has completed the required course of study with the minimum number of credit hours as required by 704 KAR 3:305 and any applicable local district requirements. High school diploma does not mean a certificate of attainment or a GED. Home school means for purposes of 707 KAR Chapter 1 only, a private school primarily conducted in one s residence. IDEA means the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400 through 1450, as amended. Independent education evaluation means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question. Individual Education Program (IEP) means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with 707 KAR 1:320. Interpreting services means, with respect to children who are deaf or hard of hearing, oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services, and transcription services such as communication access real-time translation (CART) C-Print and TypeWell and special interpreting services for children who are deaf-blind. Local educational agency (LEA) means a public local board of education or other legally constituted public authority that has either administrative control or direction of public elementary or secondary schools in a school district or other political subdivision of the Commonwealth. LEA also means any other public institution or agency, including the Kentucky School for the Blind (KSB) and the Kentucky School for the Deaf (KSD), that is charged by state statute with the responsibility of providing educational services to children with disabilities. Mental disability means that a child has one (1) of the following: A. A mild mental disability (MMD) in which: 1. Cognitive functioning is at least two (2) but no more than three (3) standard deviations below the mean; 2. Adaptive behavior deficit is at least two (2) standard deviations below the mean; 3. A severe deficit exists in overall academic performance including acquisition, retention, and application of knowledge; and 4. Is typically manifested during the developmental period; or B. A functional mental disability (FMD) in which: 1: Definitions 5
1. Cognitive functioning is at least three (3) or more standard deviations below the mean; 2. Adaptive behavior deficits are at least three (3) or more standard deviations below the mean; 3. A severe deficit exists in overall academic performance including acquisition, retention, and application of knowledge; and 4. Is typically manifested during the developmental period. Monitoring means the gathering and reviewing of information to determine if a project or program meets state and IDEA requirements, including the implementation of corrective action plans. Multiple disabilities (MD) means concomitant impairments that have an adverse effect on the child s educational performance (e.g., mental disability-blindness, mental disability-orthopedic impairment, etc.), the combination of which causes severe educational needs that cannot be accommodated in special education programs solely for one (1) of the impairments. Multiple disabilities does not mean deaf-blindness nor does it mean a speech or language impairment in combination with another category of disability. Native language means, if used in reference to an individual of limited English proficiency, the following: A. The language normally used by that individual or, in the case of a child, the language normally used by the parents of the child; B. In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment; or C. For an individual with deafness or blindness or for an individual with no written language, the mode of communication that is normally used by the individual (e.g., sign language, Braille, or oral communication). Orthopedic impairment (OI) means a severe orthopedic impairment that adversely affects a child s educational performance. The term includes an impairment caused by a congenital anomaly (e.g., clubfoot, absence of some member, etc.), an impairment caused by disease (e.g., poliomyelitis, bone tuberculosis, etc), and an impairment from another cause (e.g., cerebral palsy, amputations, and fractures or burns that causes contractures). 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: A. Is due to a chronic or acute health problem, (e.g., acquired immune deficiency syndrome (AIDS), 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, Tourette syndrome, or tuberculosis); and B. Adversely affects a child s educational performance. 6 1: Definitions
Parent means: A. A biological or adoptive parent of a child; B. A guardian generally authorized to act as the child s parent, or authorized to make educational decisions for the child, but not the state if the child is a ward of the state; C. A person acting in the place of a biological or adoptive parent (e.g., a grandparent or stepparent or other relative) with whom the child lives or a person who is legally responsible for the child s welfare; D. A foster parent if the biological or adoptive parents authority to make educational decisions on the child s behalf has been extinguished an the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the educational decisions required of parents under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child; E. A foster parent, if the biological or adoptive parents grants authority in writing for the foster parent to make educational decisions on the child s behalf, and the foster parent is willing to make the educational decisions required of a parent under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child; or F. A surrogate parent who has been appointed in accordance with 707 KAR 1:340, Section 6. Participating agency means a state or local agency other than the LEA that is financially and legally responsible for providing transition services to a child with a disability. Personally identifiable information means information that includes the name of the child, the child s parent, or other family member; the address of the child, a personal identifier, including the child s social security number or student number, or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty. Postsecondary goals mean those goals that a student hopes to achieve after leaving high school. Private school children with disabilities means children with disabilities enrolled by their parents in private elementary or secondary schools as defined by IDEA regulations, 34 CFR Part 300.13 and 300.36 and not children with disabilities enrolled in private schools upon referral by a LEA. Public expense means that the LEA either pays for the full cost of the services to meet the requirements of 707 KAR Chapter 1 or ensures that the services are otherwise provided at no cost to the parent. Nothing in these administrative regulations will relieve an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability. Qualified personnel mean personnel who meet the statutory or regulatory qualifications for each respective profession currently applicable in this state. Reasonable efforts to obtain voluntary compliance mean active and ongoing efforts by the KDE through technical assistance and negotiation to arrive at an acceptable CAP and follow through on an agreed upon CAP. 1: Definitions 7
Related services means transportation and such developmental, corrective, or supportive services as are required to assist a child with a disability to benefit from special education. It includes speech/language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation including therapeutic recreation, early identification and assessment of disabilities in children, counseling services including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also means school health services and school nurse services, social work services in school, and parent counseling and training. Related services do not include a medical device that is surgically implanted, the optimization of that device s functioning (such as mapping), maintenance of that device, or the replacement of that device. The definition of related services doe not: 1) the responsibility of the LEA to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; 2) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly or 3) limit the right of a child with a surgically implanted device to receive related services that are determined by the ARC to be necessary for the child to receive FAPE. Sanctions means actions (e.g., technical assistance, consultation, training) that are taken by the KDE in response to a LEA s failure to comply with the required standards in state and federal laws and administrative regulations. School day means any day, including a partial day that children are in attendance at school for instructional purposes. School day means the same thing for all children in school, including children with or without disabilities. Serious bodily injury means bodily injury as established in 18 U.S.C. Section 1365 (h) (3). Services plan means a written statement that describes the special education or related services that the LEA will provide to a parentally-placed child with a disability enrolled in a private school who has been designated to receive services, including the location of the services and any transportation necessary that is developed in accordance with 707 KAR 1:370. Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of the child with a disability including instruction in the classroom, in the home, in hospitals and institutions, and in other settings. Special education means speech/language pathology services (if the service is considered special education rather than a related service), travel training, and vocational education. Special education mentor means individuals with exceptional expertise, experience, and certification in special education administration or teaching granted the authority described in KRS 157.197. Specially designed instruction means adapting as appropriate the content, methodology, or delivery of instruction to address the unique needs of the child with a disability and to ensure access of the child to the general curriculum included in the Program of Studies, 704 KAR 3:303. 8 1: Definitions
Specific learning disability (SLD) means a disorder that adversely affects the ability to acquire, comprehend or apply reading, mathematical, writing, reasoning, listening, or speaking skills to the extent that specially designed instruction is required to benefit from education. The specific learning disability (LD) may include dyslexia, dyscalculia, dysgraphia, developmental aphasia, and perceptual/motor disabilities. The term does not include deficits that are the result of other primary determinant or disabling factors such as vision, hearing, motor impairment, mental disability, emotional/behavioral disability, environmental or economic disadvantaged, cultural factors, limited English proficiency, or lack of relevant research-based instruction in the deficit area. Speech or language impairment means a communication disorder, including stuttering, impaired articulation, a language impairment, a voice impairment, delayed acquisition of language, or an absence of language, that adversely affects a child s educational performance. Supplementary aids and services means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable a child with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with 707 KAR 1:350. Transition Services means a coordinated set of activities for a child with a disability that: A. Is designed within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child s 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; B. Is based on the individual student s needs, taking into account the child s strengths, preferences, and interests; and C. Includes: 1. Instruction; 2. Related services; 3. Community experiences; 4. The development of employment and other post-school adult living objectives; and, 5. If appropriate, acquisition of daily living skills and functional vocational evaluation. 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. TBI does not mean brain injuries that are congenital or degenerative or brain injuries induced by birth trauma. TBI means open or closed head injuries resulting in impairments in one (1) or more areas, including the following: A. Cognition B. Language C. Memory D. Attention 1: Definitions 9
E. Reasoning F. Abstract thinking G. Judgment H. Problem-solving I. Sensory, perceptual, and motor abilities J. Psychosocial behavior K. Physical functions L. Information processing M. Speech Travel training means instruction to children with significant cognitive disabilities and any other children with disabilities, as appropriate, to enable them to develop an awareness of the environment in which they live and to learn the skills necessary to move effectively and safely from place to place within that environment (e.g., school, home, work, and community). Visual impairment (VI) means a child has a vision loss, even with correction, as follows: A. Requires specialized materials, instruction in orientation and mobility, Braille, visual efficiency, or tactile exploration; B. Has an adverse effect on the child s educational performance; and C. Meets the following: 1. The child has visual acuity even with prescribed lenses that is 20/70 or worse in the better eye; or 2. The child has visual acuity that is better than 20/70 and the child has one of the following conditions: a) A medically diagnosed progressive loss of vision; b) A visual field of twenty (20) degrees or worse; c) A medically diagnosed condition of cortical blindness; or d) A functional vision loss; Ward of the state means a child who has been committed to the Cabinet for Families and Children (CFC) or the Department of Juvenile Justice (DJJ) through a legal process, whether the commitment is voluntary or nonvoluntary and the biological or adoptive parental rights have been terminated. Weapon means dangerous weapon as defined in 18 U.S.C. Section 930 (g) (2). Withholding means no further payments of specified funds are made to an approved recipient. 10 1: Definitions
CHAPTER 2 FREE APPROPRIATE PUBLIC EDUCATION 707 KAR 1:290 SECTION I FREE APPROPRIATE PUBLIC EDUCATION An LEA * shall make a free appropriate public education (FAPE) available to all children with disabilities age three (3) to twenty-one (21) residing within its district s boundaries who have not received a high school diploma, including children with disabilities who have been suspended or expelled for more than ten (10) school days in a school year. FAPE shall be provided to each child with a disability even though the child has not failed or been retained in a course and is advancing from grade to grade based on the child s unique needs and not on the child s disability. A LEA shall not be required to provide FAPE to a student eighteen (18) years old or older, who is placed in an adult correctional facility if, in the educational placement prior to placement in the correctional facility, the student was not identified as a child with a disability and did not have an IEP. 707 KAR 1:290, Section 1(1) The Jefferson County Public School (JCPS) District makes a free appropriate public education (FAPE) available to each child or youth with a disability: A. Whose age is three (3) to twenty-one (21) years; B. Who resides in a home, facility, residence, or any type of shelter within the JCPS District s geographical boundaries; C. Who has a disability, regardless of the severity; D. Who needs special education and related services; E. Who has been suspended or expelled for more than ten (10) school days in a school year; and F. Who has not graduated with a regular education diploma. The JCPS District makes FAPE available to children and youth with disabilities as specified even though the child has not failed or been retained in a course and is advancing from grade to grade based on the child s unique needs and not on the child s disability. The district provides to the child and parents all of the rights under Part B of the Individual with Disabilities Education Act (IDEA) and under Kentucky law and the Kentucky Administrative Regulations (KARs). The district and its schools provide services for children and youth with disabilities ages three (3) to twenty-one (21) years, consistent with the Kentucky Program of Studies, 707 KAR Chapter 1 (special-education regulations) and district procedures. Services for children and youth with disabilities include: A. Individualized instruction to meet the unique needs of children and youth with disabilities; and B. The variety of programs, services, and activities provided for children and youth without disabilities. * local educational agency (LEA), which means the JCPS District Individual Education Program (IEP) 2: FAPE 1
FAPE is provided through an Individual Education Program (IEP) that serves as a program of reasonably designed strategies and services to meet the individual needs of a child or youth with a disability. The district is not required to provide education to youths with disabilities who are eighteen (18) years or older and who are placed in an adult correctional facility if, in the educational placement prior to placement in the correctional facility, the student was not identified as a child with a disability and did not have an IEP. No Cost to Parent 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 Kentucky Department of Education included in 707 KAR Chapter 1 and the Program of Studies, 704 KAR 3:303, as appropriate; (c) Include preschool, elementary school, or secondary school education in the state; and (d) Are provided in conformity with an individual education program (IEP) that meets the requirement of 707 KAR 1:320. 707 KAR 1:002, Section 1(27) Public Expense means that the LEA either pays for the full cost of the services to meet the requirements of 707 KAR Chapter 1 [special education regulations] or ensures that the services are otherwise provided at no cost to the parent. Nothing in these administrative regulations shall relieve an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability. 707 KAR 1:002, Section 1(48) The district makes sure that any expenses for the identification, evaluation, and educational placement of a child or youth with disabilities, or the provision of special education and related services for a child or youth with disabilities, are at no cost to the parent. There is no cost to the parent and no cost to the youth if he or she is emancipated (age eighteen [18] or married). This requirement does not preclude charging incidental fees, which are normally charged to a child without disabilities or to the parent as part of the regular education program (e.g., activity fees, field trips). Private Insurance The district ensures that services are at no cost to the parent through: A. Interagency agreements; state, local, or federal funds; or insurance reimbursement arrangements; or B. The use of third party-payments, private or public, that support the education or noneducation costs of providing FAPE to a child or youth with a disability. The district may use third-party payments if: 1. The parent agrees to the use; 2. There are no out-of-pocket costs for the parent, such as a deductible amount incurred in filing a claim; 3. There is no increase in the costs to the parent; and 4. There is no decrease in benefits to the parent; or when: (a) The parent agrees to the use; 2 2: FAPE
(b) The district pays any out-of-pocket or increased costs; and (c) There is no decrease in benefits to the parent. If payment for services under 707 KAR Chapter 1 is to be provided by an agency other than the district, the district will ensure that the services are provided without delay, even if there is a delay in the payment for those services. Public Insurance (e.g., Medicaid) The district is an authorized school-based health-services provider. When a child or youth with a medical card receives a billable service (e.g., speech therapy, physical therapy) through the IEP, the parent will be asked by the Admissions and Release Committee (ARC) chairperson/district representative to give written authorization for the district to bill these services directly to the child s or youth s medical card. The parent may choose to deny access to this Medicaid billing at any time. The parent will be told that the child s or youth s benefits under the Medicaid Program are not reduced because the district bills for appropriate services. The parent s and child s rights and services provided through an IEP are not affected in any way by the district s participation in the Medicaid Program. In the event that a child or youth with a disability has a medical card and private insurance, the ARC chairperson/district representative will contact the executive director of Exceptional Child Education (ECE)/designee prior to making any decisions to bill Medicaid for services. Nothing in this part of the regulation relieves an insurer or similar third party from an otherwise valid obligation to provide or pay for services, including transition services, provided to a child or youth with a disability. This includes the Department of Vocational Rehabilitation or any other participating agency for which a child or youth with a disability meets the eligibility criteria of that agency. The district uses all fiscal resources available for the education of children and youth with disabilities according to all applicable state and federal laws and regulations. SECTION II ARC PLACEMENT OF A CHILD OR YOUTH IN A PRIVATE SCHOOL OR AGENCY OTHER THAN THE DISTRICT An LEA shall be responsible for ensuring the rights and protections under 707 KAR Chapter 1 are given to children with disabilities referred to or placed in private schools and facilities by the LEA. 707 KAR 1:290, Section 1(2) If any ARC chairperson/district representative anticipates that the IEP cannot be implemented at the student s assigned school, the ARC chairperson/district representative will contact the coordinator of ECE Placement/designee for assistance in removing barriers to the implementation of the IEP. If the ARC, including the coordinator of ECE Placement/designee as an ARC member, determines that the special education and related services cannot be provided through an existing district program following procedures in Chapter 6, Placement Decisions, then the ARC explores placement alternatives in another local educational agency (LEA), another public or state-operated program, or a private agency or program. 2: FAPE 3