Original Notice.

Preproposal statement of inquiry was filed as WSR 01-01-065.

Title of Rule:

Rule	Title
WAC 392-172-020	Purposes.
WAC 392-172-030	Students' rights to special education programs.
WAC 392-172-035	Definitions of "free appropriate public education," "adult student," "special education student," "parent," and "public agency."
WAC 392-172-045	Definition of "special education" and other terms.
WAC 392-172-080	Proper functioning of hearing aids.
WAC 392-172-105	Parent participation in meeting and notice.
WAC 392-172-10900	Determination of needed evaluation data for an initial evaluation.
WAC 392-172-111	Determination of eligibility and parental notification.
WAC 392-172-114	Definition and eligibility criteria for developmentally delayed.
WAC 392-172-132	Method for documenting severe discrepancy.
WAC 392-172-15700	Parent and general education teacher participation in IEP and other meetings.
WAC 392-172-159	Development, review, and revision of individualized education program-consideration of special factors.
WAC 392-172-160	Individualized education program.
WAC 392-172-170	Initial service delivery -- Parental consent for initial placement -- Notice required.
WAC 392-172-180	Procedures for establishing educational placement.
WAC 392-172-182	Reevaluation -- Requirement.
WAC 392-172-186	Reevaluation -- Procedures.
WAC 392-172-190	Reevaluation -- Notice of results.
WAC 392-172-200	Staff qualifications for special education funding.
WAC 392-172-202	Emergency -- Temporary out-of-endorsement assignment.
WAC 392-172-220	Contractual services.
WAC 392-172-222	Approval of nonpublic agencies.
WAC 392-172-224	School district or other public agency responsibility when contracting for the delivery of services in a public agency or approved nonpublic agency.
WAC 392-172-232	Definition -- "Private school special education student(s)."
WAC 392-172-23600	Determination (of needs, numbers of students and types) of services.
WAC 392-172-23605	Services provided.
WAC 392-172-23610	Location of services and transportation.
WAC 392-172-239	Complaints.
WAC 392-172-241	Service arrangements.
WAC 392-172-242	Equipment, property and supplies -- Construction.
WAC 392-172-338	Investigation of and response to complaints against a school district or other public agency, educational service district, or other subgrantee.
WAC 392-172-344	Complaints against the superintendent of public instruction -- Investigation of and response to complaints.
WAC 392-172-377	Functional behavioral assessment and intervention plan.
WAC 392-172-38410	Protections for students not yet eligible for special education and related services.
WAC 392-172-404	Notice to parents.
WAC 392-172-424	Safeguards.
WAC 392-172-426	Destruction of information.
WAC 392-172-504	Monitoring.
WAC 392-172-507	State level nonsupplanting and maintenance of effort.

Purpose: The proposed amendments include changes required by the United States Department of Education (USDOE) for eligibility for federal funding, clarify the age birth-three responsibility, and clarify nonpublic agency approval (NPA) procedures, monitoring procedures and citizen complaint processes.

Statutory Authority for Adoption: Chapter 28A.155 RCW, RCW 28A.300.070.

Statute Being Implemented: Chapter 28A.155 RCW.

Summary: The amendments incorporate eligibility rules for special education students incarcerated in adult correctional facilities, pursuant to Tunstall ex.rel. Tunstall v. Bergeson, 141 Wn.2d 201, 5p.3d 501 (2000); clarify that parental consent can not be overridden by a due process hearing for initial consent for services, clarify evaluation and reevaluation procedures; change procedures for NPA approval, and makes housekeeping process changes to citizen complaint and monitoring processes. Additionally, changes have been made to address typographical errors and to clarify meeting notification procedures.

Reasons Supporting Proposal: Office of Superintendent of Public Instruction (OSPI) was required to make changes to the regulations once the supreme court issued a decision regarding the constitutionality of chapter 28A.190 RCW. In addition to other changes proposed by OSPI, the USDOE required changes to selected regulations for continued eligibility for federal funding.

Name of Agency Personnel Responsible for Drafting: Pam McPartland, Office of Superintendent of Public Instruction, (360) 753-6733; Implementation and Enforcement: Doug Gill, Office of Superintendent of Public Instruction, (360) 753-6733.

Name of Proponent: Office of Superintendent of Public Instruction, governmental.

Rule is necessary because of federal law, 20 U.S.C. 1400 et sec. [seq.]; and state court decision, Tunstall ex.rel. Tunstall v. Bergeson, 141 Wn.2d 201, 5p.3d 501 (2000).

Explanation of Rule, its Purpose, and Anticipated Effects: The rules now address the provisions of special education to eligible students incarcerated in state adult correctional facilities. Districts, ESDs, contracted providers, and eligible students will find the federal requirements incorporated in the state regulations.

The rules clarify that services to children 0-3 are early intervention services, and clarify that services to this age group are provided pursuant to Part C of the Individuals with Disabilities Education Act. This change will provide clarity to serving districts.

The NPA application process will now include an application review by the school district proposing placement.

This change will assist OSPI in its determination of appropriate facilities.

The changes to monitoring and citizen's complaints are made to make the process clearer.

The changes to collection of existing data for initial evaluation were made to parallel the federal regulations.

A change has been made to consent for initial services, based on a memo from the USDOE, to OSPI requesting that a requirement to override consent is no longer allowed. School districts are still required to override consent for evaluations and reevaluations, but may not do so for consent for initial services. This means that although students may be eligible for special education, parents may refuse services at the initial evaluation.

A new provision regarding the proper fitting of hearing aids is added, as required in federal regulations.

Other changes were made to provide clarity, correct typographical errors or add additional federal language.

In addition, subheadings were changed for section clarity.

Proposal Changes the Following Existing Rules: WAC 392-172-020 and 392-172-035, add references to education programs for juvenile inmates contained at chapter 28A.190 RCW, and makes housekeeping title changes for other state residential education programs.

WAC 392-172-030, in addition to adding the reference to chapter 28A.193 RCW, the change clarifies the responsibilities of school districts serving students age 0-3, under Part C regulations. Eliminates duplicative language already addressed in WAC 392-172-020.

WAC 392-172-080, the new section addresses proper functioning of hearing aids required by federal regulation.

WAC 392-172-105, clarifies notification requirements for meetings.

WAC 392-172-10900, clarifies federal requirements when reviewing existing data for initial evaluations.

WAC 392-172-114, clarifies district responsibility for early intervention services under Part C. Housekeeping clarification for reevaluation of students aged 6-9.

WAC 392-172-132, clarifies professional judgment standards.

WAC 392-172-15700, clarifies meeting notification requirements.

WAC 392-172-159 and 392-172-160, language added to clarify responsibility for juvenile inmates pursuant to chapter 28A.193 RCW.

WAC 392-172-170, removes requirement for overriding consent for providing of initial services consistent with federal eligibility requirements.

WAC 392-172-180, correct cross-reference added. Language added to clarify responsibility for juvenile inmates pursuant to chapter 28A.193 RCW.

WAC 392-172-182, adds language regarding reevaluation contained at 34 C.F.R. 300.346.

WAC 392-172-186, adds language previously contained at WAC 392-172-188 regarding review of existing data. WAC 392-172-188 is repealed.

WAC 392-172-190, changes "calendar" to school days so notice is consistent with WAC 392-172-111. Clarifies language regarding notice of reevaluation results.

WAC 392-172-200, adds reference to chapter 180-82 WAC. Removes language that is inconsistent with state board certification regulations.

WAC 392-172-202, removes subsection (3), which is inconsistent with state board certification regulations.

WAC 392-172-220, adds cross-reference to existing regulations addressing contracts.

WAC 392-172-222, includes school districts in the process of approving nonpublic agencies.

WAC 392-172-224, makes housekeeping changes for clarity.

WAC 392-172-232, 392-172-23600, 392-172-23605, 392-172-23610 and 392-172-239 contain changes to correct errors, correct cross-references and clarify language.

WAC 392-172-241, this new section, replaces WAC 392-172-238, regarding service arrangements. The section is expanded to include other part-time service arrangements for private school and homeschool students. A new subheading is added prior to this section for clarity.

WAC 392-172-242, federal language added clarifying Part B restrictions on equipment and supplies.

WAC 392-172-338 and 392-172-344, remove unnecessary language and clarify procedures.

WAC 392-172-377 and 392-172-38410, include changes required for federal eligibility.

WAC 392-172-404, clarifies the publications and languages provided for interpretation.

WAC 392-172-424, adds language contained in federal regulation.

WAC 392-172-426, corrected cross-reference.

WAC 392-172-504, language added to clarify the monitoring procedures.

WAC 392-172-507, corrects typographical error.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule affects how governmental entities proved special education services.

RCW 34.05.328 does not apply to this rule adoption. OSPI is not one of the agencies required under RCW 34.05.328 to complete the significant legislative analysis. OSPI does maintain a legislative analysis on file.

Hearing Location: The Office of Superintendent of Public Instruction, Brouillet Conference Room, 600 S.E. Washington Street, Olympia, WA 98504-7200, on July 2, 2001, at 1:30 p.m. (assistance for persons with disabilities contact Tia Bertrand by June 15, 2001, phone (360) 753-6733, TTY (360) 664-3631, e-mail tbertrand@ospi.wednet.edu); at Foster High School, 4242 South 144th Street, Tukwila, WA 98168, on August 13, 2001, at 3:30 p.m. (assistance for persons with disabilities contact Tia Bertrand by August 1, 2001, phone (360) 753-6733, TTY (360) 664-3631, e-mail tbertrand@ospi.wednet.edu); and at ESD 105, Yakima Conference Room, 33 South Second Avenue, Yakima, WA 98902, on October 2, 2001, at 3:00 p.m. (assistance for persons with disabilities contact Tia Bertrand by September 14, 2001, phone (360) 753-6733, TTY (360) 664-3631, e-mail tbertrand@ospi.wednet.edu).

Submit Written Comments to: Special Education, Office of Superintendent of Public Instruction, P.O. Box 47200, 600 South Washington Street, Olympia, WA 98504-7200, fax (360) 902-8292, by October 1, 2001.

Date of Intended Adoption: November 1, 2001.

May 22, 2001

Michael L. Bigelow

for Dr. Terry Bergeson

Superintendent of

Public Instruction

OTS-4860.2

AMENDATORY SECTION(Amending WSR 99-24-137, filed 12/1/99, effective 1/1/00)

WAC 392-172-020   Purposes.   (1) The purposes of this chapter are to:

(a) Implement chapter 28A.155 RCW consistent with the Individuals with Disabilities Education Act, 20 United States Code section 1400 et seq.;

(b) Ensure that all special education students as defined in this chapter have available a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;

(c) Ensure that the rights of special education students and their parents are protected;

(d) Assist school districts and other public agencies to provide special education and related services; and

(e) Assess and ensure effectiveness of the public agencies responsible for providing special education pursuant to chapter 28A.155 RCW, including state residential ((school)) education programs ((which are)) established and operated pursuant to chapter 28A.190 RCW ((28A.190.020 et seq., RCW 13.04.145 and)), state schools for the deaf and blind established and operated pursuant to chapter 72.40 RCW, and education programs for juvenile inmates established and operated pursuant to chapter 28A.193 RCW.

(2) School districts and other public agencies must be aware that there are additional federal and state civil rights regulations (29 US Code 764, RCW 49.60.030, 43 USC 12101 et seq.) that apply to students who have a disability regardless of the student's eligibility for special education and related services. If a student has a physical, sensory, or mental impairment which substantially limits one or more major life activities, the district or other public agency has an obligation to provide that student appropriate educational services. Such services must be designed to meet the needs of the student with a disability to the same extent the needs of students without disabilities are met. A school district and other public agency's obligation to provide appropriate educational services to meet the needs of a student who has a disability exists separate and apart from the obligation to provide a free appropriate public education to a student who qualifies for special education and any necessary related services under these regulations.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-020, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-020, filed 10/11/95, effective 11/11/95.]

(2) Every eligible special education student residing in a state education correctional facility is eligible for special education and related services pursuant to chapter 28A.193 RCW. The department of corrections is the agency assigned supervisory responsibility by the governor's office for any student not served pursuant to chapter 28A.193 RCW.

(3) School districts or other public agencies may provide ((special education and related)) early intervention services under Part C of the IDEA to students with a disability in the birth through two years age group who meet the eligibility criteria under WAC 392-172-114(1) ((in the birth through two years age group. If a school district or other public agency provides an education to any student who is not disabled in the birth through two years age group, the district or other public agency shall make any required special education and related services available pursuant to this chapter to all its special education students of the same age)) or under regulations implementing Part C of the IDEA. The department of social and health services is the state agency responsible for early intervention services to students with a disability in the birth through two years age group.

(((3))) (4) Any student referred for special education and related services shall qualify pursuant to eligibility criteria set forth in this chapter.

(((4))) (5) A special education student shall remain eligible for special education and any necessary related services until one of the following occurs:

(a) A group of qualified professionals and the parent of the student, based on a reevaluation determines the student is no longer in need of special education; (((In this case, while a disability may continue, and individual accommodations in the general education classroom may be necessary for educational benefit, such services would not represent special education services as defined in this chapter.))) or

(b) The special education student has met high school graduation requirements established by the school district or other public agency pursuant to rules of the state board of education, and the student has graduated from high school with a regular high school diploma. Graduation from high school with a regular diploma constitutes a change in placement, requiring written prior notice in accordance with WAC 392-172-302; or

(c) The special education student enrolled in the common school system or receiving services pursuant to chapter 28A.190 or 72.40 RCW has reached age twenty-one. The student whose twenty-first birthday occurs on or before August 31 would no longer be eligible for special education. The student whose twenty-first birthday occurs after August 31, shall continue to be eligible for special education and any necessary related services for the remainder of the school year.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-030, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-030, filed 10/11/95, effective 11/11/95.]

(1) "Free appropriate public education" or FAPE means special education and related services which:

(a) Are provided at public expense, under local school district or other public agency supervision and direction, and without charge to parents;

(b) Meet the standards of the state educational agency and the state board of education, including the requirements of this chapter;

(c) Include preschool, elementary school, or secondary school education in the state; and

(d) Are provided in conformance with individualized education program (IEP) requirements of this chapter.

(2) "Special education student" means:

(a) Any student, enrolled in school or not, (i) who has been identified as having a disability, (ii) whose disability adversely affects the student's educational performance, (iii) and whose unique needs cannot be addressed exclusively through education in general education classes with or without individual accommodations and is determined to be eligible for special education services; ((or)) including

(b) A student ((under the age of twenty-one)) who qualifies under (a) of this subsection who resides in a residential school ((serving students with a disability)) because of adjudication or medical necessity, in accordance with chapter 28A.190 RCW ((28A.190.020 et seq., 13.04.145 and)); residential and day students receiving education services at the state schools for the deaf and blind in accordance with chapter 72.40 RCW; ((who also qualifies pursuant to (a) of this subsection)) and students who are juvenile inmates, receiving education services in accordance with chapter 28A.193 RCW.

(3) If it is determined through an appropriate evaluation that a student has one of the disabilities identified in WAC 392-172-114 through 392-172-148, but only needs a related service and not specially designed instruction, the student is not a special education student under this chapter.

(4) "Adult student" means a special education student eligible under this chapter, who is eighteen years of age or older and who has not been judged incapacitated by a court of law. A student shall assume and be entitled to exercise all rights, duties and responsibilities otherwise granted to parents by this chapter upon attaining the age of eighteen consistent with WAC 392-172-309. The adult student shall retain and be entitled to exercise the same until he or she has been judged incapable of exercising these rights by a court of law.

(5) "Parent" means a natural or adoptive parent, a guardian, an adult person acting as a parent, or a surrogate parent who has been appointed in accordance with WAC 392-172-308. The term includes a person acting in the place of a parent, such as a grandparent or stepparent with whom a special education student lives, as well as persons who are legally responsible for the student's welfare. The term does not include the state if the special education student is a ward of the state. It does include a foster parent if appointed as a surrogate parent.

(6) As used in this chapter, "public agency" means:

(a) Each public school district in the state;

(b) Each educational service district that provides special education or related services to one or more students with a disability;

(c) Each state operated program identified in WAC 392-172-020 (1)(e); and

(d) Each public organization or entity, including other political subdivisions of the state providing special education and/or related services to one or more special education students regardless of whether the organization or entity receives funds under the Individuals with Disabilities Education Act.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-035, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-035, filed 10/11/95, effective 11/11/95.]

(2) The term does not include individual accommodations within general education that alone would be sufficient and effective to meet the learning needs of the student; nor does it include the educational services necessary to meet the needs of those students identified under WAC 392-172-020(2).

(3) Travel training, vocational training, speech and language services, physical and occupational therapy, orientation and mobility instruction, behavioral intervention instruction, transition services, and audiological services are considered special education under this chapter if they are provided as specially designed instruction as defined in subsection (4) of this section. They are considered related services under WAC 392-172-055 if they are required to assist a special education student to benefit from special education, and not provided as specially designed instruction.

(4) The terms used in this section are defined as follows:

(a) "Specially designed instruction" means organized and planned instructional activities which adapt, as appropriate, to the needs of eligible students under this chapter, the content, methodology or delivery of instruction:

(i) To address the unique needs that result from the student's disability;

(ii) To ensure access of the student to the general curriculum so that the student can meet the educational standards of the school district or other public agency that apply to all students; and

(iii) ((Be)) That is provided by appropriately qualified special education certificated staff, or designed and supervised by this staff and carried out by general education certificated personnel or trained classified staff pursuant to a properly formulated IEP consistent with WAC 392-172-160 (1)(c), so that the needs of the student and services provided to the student will be clear to the parents and other IEP service providers. Student progress must be monitored and evaluated by special education certificated staff.

(b) "At no cost" means that all specially designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as part of the general education program.

(c) "Audiology" means the provision of habilitative instruction related to a hearing impairment.

(d) "Behavioral intervention instruction" means providing instruction which addresses student behavior that impedes involvement and/or progress in the general curriculum.

(e) "Occupational therapy" is instruction designed to improve, develop or restore functions impaired or lost through illness, injury, or deprivation, or improve ability to perform tasks for independent function if functions are impaired or lost.

(f) "Orientation and mobility instruction" means the provision of training/instruction in orientation and mobility for students who are visually impaired, including travel training.

(g) "Physical education" means:

(i) The development of physical and motor fitness; fundamental motor skills and patterns; and skills in aquatics, dance, and individual and group games and sport (including intramural and lifetime sports); and

(ii) Special physical education, adapted physical education, movement education, and motor development.

(h) "Physical therapy" means developing or restoring motor function and maintaining appropriate performance commensurate with the student's unique needs.

(i) "Speech and language services" means the provision of instruction for the habilitation of communication disorders.

(j) "Transition services" means a coordinated set of activities for a special education student that:

(i) Is designed within an outcome-oriented process that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(ii) Is based on the individual student's needs, taking into account the student's preferences and interests; and

(iii) Includes:

(A) Specially designed instruction;

(B) Related services;

(C) Community experiences;

(D) The development of employment and other post-school adult living objectives; and

(E) If appropriate, acquisition of daily living skills and functional vocational evaluation.

(k) "Travel training" means providing instruction, as appropriate, to students with significant cognitive disabilities, and other eligible students with disabilities who require this instruction, to enable them to:

(i) Develop an awareness of the environment in which they live; and

(ii) Learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in the school, in the home, at work, and in the community).

(l) "Vocational education" means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-045, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-045, filed 10/11/95, effective 11/11/95.]

[]

(2) For meetings other than IEP or educational placement meetings each public agency shall notify parents consistent with WAC 392-172-15700 (1)(a) and (2) to ensure that parents have the opportunity to participate in the meetings ((described in this section)). For IEP or educational placement meetings the public agency will notify parents consistent with WAC 392-172-15700 and 392-172-15705.

(3) A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the student's IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-105, filed 12/1/99, effective 1/1/00.]

Review existing evaluation data on the student, including:

(a) Evaluations and information provided by the parents of the student;

(b) Current classroom-based assessment and observations; and

(c) Observations by teachers and related services providers.

(2) Based on the above review and input from the student's parents, identify what additional data, if any, are needed to determine:

(a) Whether the student has a particular category of disability as described in this chapter;

(b) The present levels of performance and educational needs of the student; and

(c) Whether the student needs special education and related services.

(3) The public agency shall administer tests and any other evaluation materials, pursuant to WAC 392-172-108 as may be needed to produce the data required to make the determinations listed in subsection (2) of this section.

(4) The group described in subsection (1) of this section may conduct its review without a meeting. If the school district or other public agency conducts a meeting for the purposes under this section, parents must have an opportunity to participate in the meeting consistent with WAC 392-172-105.

(((5) If no additional data are needed to make the determination listed in subsection (2) of this section, the public agency shall notify the student's parents of this fact and the reasons for this decision, consistent with WAC 392-172-302.))

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-10900, filed 12/1/99, effective 1/1/00.]

(a) Consistent with WAC 392-172-105 ((and 392-172-15705)), a group of qualified professionals and the parent of the student shall determine whether the student is a special education student in need of special education and any necessary related services, as defined in this chapter; and

(b) The public agency must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent.

(2) If a determination is made that a student has a disability and needs special education and related services, an IEP must be developed for the student in accordance with this chapter.

(3) If the decision is that the student is not eligible for special education, the parent(s) of the student shall be informed in writing of the evaluation findings in compliance with the notice requirements of WAC 392-172-302, within ten school days following the completion of the evaluation.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-111, filed 12/1/99, effective 1/1/00.]

(1) As used in this chapter, the term "developmentally delayed, birth to three years" shall mean those children under three years of age who:

(a) Demonstrate a 1.5 standard deviation or twenty-five percent delay in cognitive development, communication development, physical development, social or emotional development, or adaptive development as defined in WAC 392-172-116; or

(b) Qualify for one of the other eligibility categories specified in this chapter; and

(c) Are in need of ((special education and any necessary related services)) early intervention services under Part C of IDEA. Children who qualify for ((special education services under this category)) early intervention services must be ((reevaluated)) evaluated prior to age three in order to ((continue to be eligible)) determine eligibility for special education and related services.

(2) As used in this chapter, the term "developmentally delayed, three to six years" shall mean those children between three and six years of age who demonstrate a delay on a standardized norm referenced test, with a test-retest or split-half reliability of .80 that is at least:

(a) Two standard deviations below the mean in one or more of the five developmental areas defined in WAC 392-172-116; or

(b) One and one-half standard deviations below the mean in two or more of the five developmental areas defined in WAC 392-172-116; or

(c) Qualify for one of the other eligibility categories specified in this chapter; and

(d) Are in need of special education and any necessary related services.

(e) Children aged six to nine years who previously qualified as "developmentally delayed, three to six years," may at the option of the school district or other public agency, continue to be eligible under the criteria for "developmentally delayed, three to six years" until they are reevaluated, but not later than three years after the eligibility decision for "developmentally delayed, three to six years" was initially made.

(3) As used in this chapter, the term "developmentally delayed, six to nine years" shall mean those children between six and nine years of age who either continue to qualify under subsection (2)(e) of this section, or demonstrate a delay on a standardized norm referenced test, with a test-retest or split-half reliability of .80 that is at least:

(a) Two standard deviations below the mean in one or more of the five developmental areas defined in WAC 392-172-116; or

(b) Qualify for one of the other eligibility categories specified in this chapter; and

(c) Are in need of special education and any necessary related services.

(4) Children who qualify for special education as "developmentally delayed, six to nine years" must be reevaluated prior to the age of nine consistent with WAC 392-172-182 et seq. and a determination made that the child either:

(a) Qualifies under the provisions of one of the other disabling conditions in this chapter; or

(b) Is no longer in need of special education and related services.

(5) A school district or other public agency is not required to adopt and use the category "developmentally delayed" for children, three to nine, within its jurisdiction.

(6) If a school district or other public agency uses the category "developmentally delayed," the district or public agency must conform to both the definition and age range of three to nine, established under this section.

(7) School districts or other public agencies who use the category "developmentally delayed," may also use any other eligibility category at any time.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-114, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-114, filed 10/11/95, effective 11/11/95.]

(2) For the purposes of applying the severe discrepancy tables, the following scores shall be used:

(a) A total or full scale intellectual ability score;

(b) An academic achievement test score which can be converted into a standard score with a mean of one hundred and a standard deviation of fifteen; and

(c) A severe discrepancy between the student's intellectual ability and academic achievement in one or more of the seven areas provided for in WAC 392-172-128 shall be determined by applying the regressed standard score discrepancy method to the obtained intellectual ability and achievement test scores using the tables referenced above. Where the evaluation results do not appear to accurately represent the student's intellectual ability and where the discrepancy between the student's intellectual ability or academic achievement and academic achievement does not initially appear to be severe upon application of the discrepancy tables in WAC 392-172-130, the evaluation group, described in WAC 392-172-108 (2)(b), shall apply professional judgment consistent with generally accepted professional practice in order to determine the presence of a severe discrepancy. In this event, the group shall document in a written narrative an explanation as to why the student has a severe discrepancy. The written narrative must provide supportive evidence, including the procedures used to determine that a severe discrepancy exists between the student's intellectual ability and academic achievement. If the prohibition against the use of specific tests or test results as provided in WAC 392-172-108 precludes the use of any of the tests referenced above, the evaluation group shall document the basis upon which the members decided that there exists a severe discrepancy.

(3) Each member of the evaluation group shall certify in writing whether the evaluation report in WAC 302-172-10905 (3) and (4) reflects his or her conclusion. If it does not, the group member must submit a separate statement presenting his or her conclusion.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-132, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-132, filed 10/11/95, effective 11/11/95.]

(a) Notifying the parent(s) of the meeting early enough to ensure that they will have an opportunity to attend; and

(b) Scheduling the meeting at a mutually agreed upon place and time.

(2) The notice to the parent(s) shall include the purpose, time, location of the meeting and who will be in attendance. If the purpose of the meeting is to develop, review or revise an IEP, the notice shall also inform the parents of the provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the student. If the purpose of the meeting is the consideration of transition needs or services, the provisions in WAC 392-172-164 and 392-172-166 apply.

(3) If neither parent can attend the IEP meeting, the district or other public agency shall use other methods to ensure participation, including individual or conference telephone calls, or video conferencing.

(4) If neither parent can attend (in the case of a nonadult student), ((a)) an IEP meeting may be conducted without a parent if the district or other public agency is unable to convince the parents that they should attend. In such a case the school district or other public agency must have a record of its attempts to arrange a mutually agreed upon time and place. The record shall contain such information as:

(a) Detailed records of telephone calls made or attempted and the results of those calls;

(b) Copies of correspondence sent to the parents and any responses received; and

(c) Detailed records of visits made to the parent's home or place of employment and the results of those visits.

(5) The school district or other public agency shall take whatever action is necessary to ensure that the parent or adult student understands the proceedings at an IEP meeting, or any other meeting, including arranging for an interpreter for parents (or adult students) who are deaf or whose native language is other than English.

(6) The general education teacher of a special education student (or preschool education provider), as a member of the individualized education program team, must, to the extent appropriate, participate in the development, review, and revision of the student's individualized education program, including assisting in:

(a) The determination of appropriate positive behavioral interventions and strategies for the student; and

(b) The determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the student consistent with WAC 392-172-160 (1)(c).

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-15700, filed 12/1/99, effective 1/1/00.]

(a) The strengths of the student and the concerns of the parents for enhancing the education of their student; and

(b) The results of the initial or most recent evaluation of the student; and

(c) As appropriate, the results of the student's performance on any general state or district-wide assessment programs.

(2) The individualized education program team also shall:

(a) In the case of a student whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;

(b) In the case of a student with limited English proficiency, consider the language needs of the student as these needs relate to the student's individualized education program;

(c) In the case of a student who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the student's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the student's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the student;

(d) Consider the communication needs of the student, and in the case of a student who is deaf or hard of hearing, consider the student's language and communication needs, opportunities for direct communications with peers and professional personnel in the student's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the student's language and communication mode; and

(e) Consider whether the student requires assistive technology devices and services.

(3) If, in considering the special factors described above, the IEP team determines that a student needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the student to receive a free appropriate public education, the IEP team must include a statement to that effect in the student's individualized education program.

(4) Nothing in this section requires the team to include information under one component of a student's individualized education program that is already contained under another component of the student's individualized education program.

(5) Notwithstanding subsections (1) through (3) of this section, an IEP team of a special education student convicted as an adult and receiving services under chapter 28A.193 RCW, may modify the student's IEP if there is a demonstrated bona fide security or compelling penological interest that cannot otherwise be accommodated.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-159, filed 12/1/99, effective 1/1/00.]

(a) A statement of the student's present levels of educational performance, including:

(i) How the student's disability affects the student's involvement and progress in the general curriculum (i.e., the same curriculum as for nondisabled students); or

(ii) For preschool students, as appropriate, how the disability affects the student's participation in appropriate activities.

(b) A statement of measurable annual goals, including benchmarks or short-term objectives, related to:

(i) Meeting the student's needs that result from the student's disability to enable the student to be involved in and progress in the general curriculum (i.e., the same curriculum as for nondisabled students), or for preschool students, as appropriate, to participate in appropriate activities; and

(ii) Meeting each of the student's other educational needs that result from the student's disability.

(c) A statement of the special education and any necessary related services and supplementary aids and services to be provided to the student, or on behalf of the student, and a statement of the program modifications or supports for school personnel that will be provided for the student consistent with WAC 392-172-045 (4)(a):

(i) To advance appropriately toward attaining the annual goals;

(ii) To be involved and progress in the general curriculum in accordance with this section and to participate in extracurricular and other nonacademic activities; and

(iii) To be educated and participate with other special education students and nondisabled students in the activities described in this section.

(d) An explanation of the extent, if any, to which the student will not participate with nondisabled students in the general class and in activities described in this section.

(e) A statement of any individual modifications in the administration of state or district-wide assessments of student achievement that are needed in order for the student to participate in the assessment. If the individualized education program team determines that the student will not participate in a particular state or district-wide assessment of student achievement (or part of an assessment), a statement of:

(i) Why that assessment is not appropriate for the student; and

(ii) How the student will be assessed.

Students incarcerated in adult correctional facilities and served pursuant to chapter 28A.193 RCW are not required to participate in assessments described in this subsection.

(f) The projected date for the beginning of the services and modification described in this section and the anticipated frequency, location, and duration of those services and modifications.

(g) A statement of:

(i) How the student's progress toward the annual goals described in this section will be measured; and

(ii) How the student's parents will be regularly informed (through such means as periodic report cards), at least as often as parents are informed of their nondisabled student's progress of:

(A) The annual goals; and

(B) The extent to which that progress is sufficient to enable the student to achieve the goals by the end of the year.

(h) For each special education student beginning at age fourteen (or younger, if determined appropriate by the IEP team), and updated annually, a statement of the transition service needs of the student under the applicable components of the student's IEP that focuses on the student's courses of study (such as participation in advanced placement courses or a vocational education program).

(i) For each student beginning at age sixteen (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages. Consistent with chapter 28A.193 RCW, transition needs and services do not need to be considered or provided under (h) and (i) of this subsection, if a student's eligibility for special education services will end because of age before he/she will be eligible to be released from the adult correctional facility based on consideration of his/her sentence and eligibility for early release.

(j) If a participating agency, other than the public agency, fails to provide the transition services described in the IEP, the public agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.

(k) Beginning at least one year before a student reaches age eighteen, consistent with WAC 392-172-309, the student's individualized education program must include a statement that the student has been informed of his or her rights under Part B of the Individuals with Disabilities Education Act, if any, that will transfer to the student on reaching the age of majority.

(l) Aversive interventions, if applicable, consistent with WAC 392-172-388 through 392-172-398. The individualized education program shall describe the positive interventions attempted by the district or other public agency prior to the use of aversive interventions.

(m) Extended school year services, pursuant to WAC 392-172-163.

(2) Nothing in this chapter relieves any participating agency, including a state vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to special education students who meet the eligibility criteria of that agency.

(3) The school district or other public agency shall provide the parent or the adult student a copy of the individualized education program at no cost.

(4) Each public agency must:

(a) Provide special education and related services to a special education student in accordance with an individualized education program; and

(b) Make a good faith effort to assist the student to achieve the goals and objectives or benchmarks listed in the IEP.

(i) Part B of the Individuals with Disabilities Education Act does not require that any agency, teacher, or other person be held accountable if a student does not achieve the growth projected in the annual goals and benchmarks or objectives.

(ii) Nothing in this section limits a parent's right to ask for revisions of the student's IEP or to invoke due process procedures if the parent feels that the efforts required in this subsection are not being made.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-160, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-160, filed 10/11/95, effective 11/11/95.]

(2) Each school district or other public agency shall provide prior written notice of the initial provision of special education services to the student, consistent with WAC 392-172-302.

(3) The student's proposed special education and related services shall begin when((:

(a))) written consent has been given by the parent(s) or the adult student (using mediation if appropriate)((; or

(b) The refusal of a student's parent(s) or adult student to grant consent has been overridden by the school district or other public agency pursuant to a hearing (or appeal) conducted in accordance with WAC 392-172-350 et seq)).

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-170, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-170, filed 10/11/95, effective 11/11/95.]

(2) The selection of the appropriate placement for each special education student shall be based upon:

(a) The student's individualized education program;

(b) The least restrictive environment requirements of WAC 392-172-172;

(c) The placement option(s) that provides a reasonably high probability of assisting the student to attain his or her annual goals; and

(d) A consideration of any potential harmful effect on the student or on the quality of services which he or she needs.

(3) Unless the IEP of a special education student requires some other arrangement, the student shall be educated in the school that he or she would attend if nondisabled. The placement shall be as close as possible to the student's home, unless the parents otherwise agree.

(4) The decision on the educational placement shall be made by a group of persons, including the parents, and other persons knowledgeable about the student, the evaluation data, and the placement options.

(5) A special education student is not removed from education in age-appropriate general classrooms solely because of needed modifications in the general curriculum.

(6) Notwithstanding subsections (1) through (5) of this section, an IEP team, or other team making placement decisions for a student convicted as an adult and receiving educational services under chapter 28A.193 RCW, may modify the student's placement if there is a demonstrated bona fide security or compelling penological interest that cannot otherwise be accommodated.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-180, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-180, filed 10/11/95, effective 11/11/95.]

(1) That the IEP of each special education student is reviewed in accordance with this chapter; ((and))

(2) That a reevaluation of each student is conducted in accordance with the evaluation procedures contained in this chapter if conditions warrant a reevaluation, or if the student's parent or teacher requests a reevaluation, but at least once every three years; and

(3) That the results of any reevaluations are addressed by the IEP team when reviewing and as appropriate revising the IEP.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-182, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-182, filed 10/11/95, effective 11/11/95.]

(a) Evaluations and information provided by the parents of the student;

(b) Current classroom-based assessment and observations; and

(c) Observations by teachers and related services providers.

(2) Based on the above review and input from the student's parents, identify what additional data, if any, are needed to determine:

(a) Whether the student continues to be a special education student and continues to need special education and any necessary related services;

(b) The present levels of performance and educational needs of the student; and

(c) If any additions or modifications to the special education and any necessary related services are needed to enable the student to meet the measurable annual goals set out in the student's individualized education program and to participate, as appropriate, in the general curriculum.

(3) If no additional data are needed to determine whether the student continues to be a special education student, the school district or other public agency shall notify the student's parents, consistent with WAC 392-172-302, (a) of that determination and the reasons for it; and (b) of the right of the parents to request an assessment to determine, for purposes of services under this chapter, the continuing eligibility of the student.

The school district or other public agency is not required to conduct the assessment unless requested to do so by the parents.

(4) The group described in subsection (1) of this section may conduct its review without a meeting. If the school district or other public agency conducts a meeting for the purposes under this section, parents must have an opportunity to participate in the meeting consistent with WAC 392-172-105.

(((4))) (5) A public agency must evaluate a special education student in accordance with this chapter before determining that the student is no longer a special education student.

(((5))) (6) The evaluation described in subsection (((4))) (5) of this section is not required before the termination of a student's eligibility under this chapter due to graduation with a regular high school diploma, or exceeding the age eligibility for FAPE under state law. Prior written notice is required, consistent with WAC 392-172-302.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-186, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-186, filed 10/11/95, effective 11/11/95.]

(1))) whether or not the student continues to be eligible and in need of special education.

If the student continues to be eligible and in need of special education((;)), the district or other public agency will address:

(((2))) (1) The present levels of performance and educational needs of the student; and

(((3))) (2) Whether any additions or modifications to the special education and any necessary related services are needed to enable the student to meet the measurable annual goals set out in the IEP of the student and to participate, as appropriate, in the general curriculum.

((When a determination is made that the individualized education program is no longer appropriate)) If the evaluation report recommends changes, an individualized education program team meeting shall be convened in accordance with WAC 392-172-153 through 392-172-166.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-190, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-190, filed 10/11/95, effective 11/11/95.]

(1) All employees shall hold such credentials, certificates, endorsements or permits as are now or hereafter required by the state board of education for the particular position of employment and shall meet such supplemental standards as may be established by the school district or other public agency of employment. Supplemental standards established by a district or other public agency may exceed, but not be less than, those established by the state board of education in accordance with chapter 180-82 WAC and this section.

((Pursuant to WAC 180-82-110, after August 31, 2000, a teacher who has completed twenty-four quarter hours (sixteen semester credit hours) of the required special education course work shall be eligible for a pre-endorsement waiver which will allow that person to be employed as a special education teacher. The remaining credits and all endorsement requirements shall be completed within three years of service as a special education teacher.)) Teachers who meet state board criteria pursuant to WAC 180-82-110(3) as now or hereafter amended, are eligible for a preendorsement waiver. Application for the special education ((or early childhood special education)) preendorsement waiver shall be made to the special education section at the office of superintendent of public instruction.

(2) In addition to the requirement of subsection (1) of this section, all special education teachers providing, designing, supervising, monitoring or evaluating the provision of special education shall possess "substantial professional training." "Substantial professional training" as used in this section shall be evidenced by issuance of an appropriate special education endorsement on an individual teaching certificate issued by the superintendent of public instruction, professional education and certification section.

(3) Other certificated instructional personnel providing specially designed instruction or related services as defined in this chapter, shall meet standards established under the educational staff associate rules of the state board of education, as now or hereafter amended.

(4) Employees with only an early childhood special education endorsement ((shall)) may be assigned to programs that serve students birth through age eight. Preference for an early childhood special education assignment must ((always)) be given first to employees having early childhood special education endorsement.

(5) Certified and/or classified staff assigned to provide instruction in Braille, the use of Braille, or the production of Braille must demonstrate competency with grade two standard literary Braille code by successful completion of a test approved by the state board of education pursuant to WAC 180-82-130.

(6) Classified staff shall present evidence of skills and knowledge necessary to meet the needs of students with disabilities, and shall be supervised consistent with WAC 392-172-045 (4)(a)(iii). Districts shall have procedures that ensure that classified staff receive training to meet state recommended core competencies pursuant to RCW 28A.415.310.

(7) General education classroom personnel providing specially designed instruction defined in WAC 392-172-045 (4)(a)(iii) pursuant to a properly formulated individual education program may be paid from state or federal special education excess cost funds if the district has in place a cost allocation plan which meets the requirements established by the superintendent of public instruction.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-200, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-200, filed 10/11/95, effective 11/11/95.]

(1) The district or other public agency must make one or more of the following factual determinations:

(a) The district or other public agency was unable to recruit a teacher with the proper endorsement who was qualified for the position;

(b) The need for a teacher with such an endorsement could not have been reasonably anticipated and the recruitment of such a classroom teacher at the time of assignment was not reasonably practicable; and/or

(c) The reassignment of another teacher within the district or other public agency with the appropriate endorsement to such assignment would be unreasonably disruptive to the current assignments of other classroom teachers or would have an adverse effect on the educational program of the students assigned such other classroom teachers.

(2) Upon determination by a school district that one or more of these criteria can be documented, and the district determines that a teacher has the competencies to be an effective special education teacher but does not have endorsement in special education, the district can so assign the teacher to special education. The teacher so assigned must have completed six semester hours or nine quarter hours of course work which are applicable to an endorsement in special education. The following requirements apply:

(a) A designated representative of the district and any such teacher shall mutually develop a written plan which provides for necessary assistance to the teacher, and which provides for a reasonable amount of planning and study time associated specifically with the out-of-endorsement assignment;

(b) Such teachers shall not be subject to nonrenewal or probation based on evaluations of their teaching effectiveness in the out-of-endorsement assignments;

(c) Such teaching assignments shall be approved by a formal vote of the local school board for each teacher so assigned; and

(d) The assignment of such teachers for the previous school year shall be reported annually to the state board of education by the employing school district as required by WAC 180-16-195. Included in the report shall be the number of teachers in out-of-endorsement assignments and the specific assistance being given to the teacher.

(((3) An emergency out-of-endorsement assignment by the district or other public agency is only valid for one school year.))

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-202, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-202, filed 10/11/95, effective 11/11/95.]

(1) Enter into interdistrict agreements with ((another)) other school ((district(s) or other public agencies)) districts pursuant to chapter 392-135 WAC; or

(2) Contract with nonpublic agencies pursuant to WAC 392-121-188 and public agencies for special education and related services for special education students if the school district establishes that it cannot provide an appropriate education for the special education student within the district.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-220, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-220, filed 10/11/95, effective 11/11/95.]

(2) The school district ((or other public agency)) shall notify the special education section of the office of superintendent of public instruction, in writing, of their intent to enroll a student and/or contract with a nonpublic agency.

(3) The office of superintendent of public instruction shall provide the school district and the nonpublic agency ((named)) with the procedures/application for nonpublic agency approval, which ((shall consist of)) includes a description of the agency and services provided, assurances, personnel records, and fire and health inspection forms. The school district proposing the nonpublic agency for approval will conduct an on-site visit of the nonpublic agency as part of the application process.

(4) Upon review of the completed application ((and an on-site visitation)) which includes the results of the on-site visit, the superintendent of public instruction or designee may conduct an independent on-site visit, if appropriate, and shall recommend approval or disapproval of the agency to the state board of education.

(5) The superintendent of public instruction or designee shall make information regarding currently approved nonpublic agencies available to all school districts.

(6) School districts shall ensure that an approved nonpublic agency is able to provide the services required to meet the unique needs of any special education student placed under this section.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-222, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-222, filed 10/11/95, effective 11/11/95.]

(1) Initiate and conduct a meeting with appropriate personnel and the student's parent(s) to develop the student's individualized education program. The district or other public agency shall ensure that a representative of the approved nonpublic or public agency either attends the meeting or ((in some other way assure participation)) participates through other means. Meetings to review or revise the student's individualized education program after the student has been placed shall be initiated and conducted by either the approved nonpublic agency or public agency at the discretion of the school district ((or other public agency)). The district ((or other public agency)) shall assure that both the parent(s) or the adult student and the public agency or approved nonpublic agency are represented in any decision concerning the student's individualized education program ((and agree to proposed changes in the program before those changes are implemented)). The responsibility for compliance with this section lies with the school district or other public agency.

(2) Develop a written contract which shall include, but not be limited to, the following elements:

(a) Names of the parties involved;

(b) The name(s) of the special education student(s) for whom the contract is drawn;

(c) Location and setting of the services to be provided;

(d) Description of services provided, program administration and supervision;

(e) Designation of responsible parties;

(f) Charges and reimbursement -- Billing and payment procedures;

(g) Total contract cost;

(h) School district ((and other public agency's)) responsibility for compliance with due process, individualized education program, ((and)) yearly review and determination of placement requirements; and

(i) Other contractual elements including those identified in WAC 392-121-188 that may be necessary to assure compliance with state and federal rules.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-224, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-224, filed 10/11/95, effective 11/11/95.]

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-232, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-232, filed 10/11/95, effective 11/11/95.]

(2) Each school district or other public agency shall consult, in a timely and meaningful way, with appropriate representatives of private school special education students in light of the funding under WAC 392-172-23305, the number of private school special education students, the needs of private school special education students, and their location to decide:

(a) Which students will receive services;

(b) What services will be provided;

(c) How and where the services will be provided; and

(d) How the services provided will be evaluated.

(3) Each school district or other public agency shall give appropriate representatives of private school special education students a genuine opportunity to express their views regarding each matter that is subject to the consultation requirements in this section.

(4) The consultation required by this section shall occur before the school district or other public agency makes any decision that affects the opportunities of private school special education students to participate in services under WAC 392-172-232 through ((392-172-248)) 392-172-23610.

(5) The school district or other public agency shall make the final decision with respect to the services to be provided to eligible private school students.

(6) If a special education student is enrolled in a religious or other private school and will receive special education or related services from a school district or other public agency, the district or agency shall:

(a) Initiate and conduct meetings to develop, review, and revise a services plan for the student, in accordance with WAC 392-172-23605; and

(b) Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the school district or other public agency shall use other methods to ensure participation by the private school, including individual or conference telephone calls.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-23600, filed 12/1/99, effective 1/1/00.]

(2) Private school special education students may receive a different amount of services than special education students in public schools.

(3) No private school special education student is entitled to any service or to any amount of a service the student would receive if enrolled in a public school.

(4) Each private school special education student who has been designated to receive services under WAC 392-172-23600 must have a services plan that describes the specific special education and related services that the school district or other public agency will provide to the student in light of the services that the district or agency has determined, through the process described in WAC 392-172-23300 and 392-172-23600, it will make available to private school special education students.

(5) The services plan must, to the extent appropriate:

(a) Meet the requirements of WAC 392-172-160 with respect to the services provided;

(b) Be developed((, reviewed, and revised)) and implemented consistent with WAC 392-172-156, 392-172-158, and 392-172-161.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-23605, filed 12/1/99, effective 1/1/00.]

(2) If necessary for the student to benefit from or participate in the services provided under this section, a unilaterally placed private school special education student must be provided transportation:

(a) From the student's school or the student's home to a site other than the private school; and

(b) From the service site to the private school, or to the student's home.

(3) School districts or other public agencies are not required to provide transportation from the student's home to the private school.

(4) The cost of the transportation described in subsection (2) of this section may be included in calculating whether the school district or other public agency has met the requirement of WAC 392-172-23305.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-23610, filed 12/1/99, effective 1/1/00.]

(2) The procedures under WAC 392-172-350 et seq. do apply to complaints that a school district or other public agency has failed to meet the requirements under child find, including evaluation and reevaluation procedures under this chapter.

(3) Complaints that the state, or a school district or other public agency, has failed to meet the requirements of WAC 392-172-232 through 392-172-248 may be filed under the procedures in WAC 392-172-324 et seq.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-239, filed 12/1/99, effective 1/1/00.]

(2) No services, material, or equipment of any nature shall be provided to or on the site of any private school or agency subject to sectarian (i.e., religious) control or influence.

(3) No services, material, or equipment of any nature shall be provided to students on the site of any private school or agency subject to sectarian control or influence.

[]

(2) Records shall be kept of equipment and supplies and an accounting made of the equipment and supplies which shall assure that the equipment is used solely for the purposes of the program. Equipment and supplies placed in private schools must be able to be removed from the private school without remodeling the private school facility.

(3) The equipment and supplies shall be removed from the private school or agency if necessary to avoid its being used for other purposes or if it is no longer needed for the purposes of the program or project.

(4) Funds shall not be used for repairs, minor remodeling, or to construct facilities for private schools or agencies.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-242, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-242, filed 10/11/95, effective 11/11/95.]

(1) Upon receipt of a properly filed complaint, the superintendent of public instruction shall send a copy of the complaint to the educational entity, for their investigation of the alleged violations.

(2) The educational entity shall investigate the complaint. The responsible official of the educational entity shall respond in writing to the superintendent of public instruction, and include documentation of the investigation, no later than twenty calendar days after the date of receipt by the entity of such complaint.

(3) The response to the superintendent of public instruction shall clearly state either:

(a) That the educational entity denies the allegations contained in the complaint and the basis for such denial; or

(b) Proposes reasonable corrective action(s) deemed necessary to correct the violation.

(4) ((Upon request,)) The superintendent of public instruction shall provide the complainant a copy of the entity's response to the complaint.

(5) The superintendent of public instruction will provide the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint.

(6) ((Within thirty calendar days, and)) Upon review of all relevant information including, if necessary, information obtained through an independent on-site investigation by the superintendent of public instruction, the superintendent of public instruction will make an independent determination as to whether the public agency is violating a requirement of Part B of the Individuals with Disabilities Education Act or of this chapter.

(7) Consistent with ((the provisions of WAC 392-172-320 through 392-172-346)) WAC 392-172-334, the superintendent of public instruction shall issue a written decision to the complainant that addresses each allegation in the complaint including findings of fact, conclusions and the reasonable corrective measures deemed necessary to correct any violation. Corrective measures necessary to resolve a complaint shall be instituted as soon as possible but in no event later than thirty calendar days following the date of the decision, unless otherwise agreed to, or for good cause.

(8) If compliance by a local school district or other public agency, educational service district, or other subgrantee is not achieved pursuant to subsection (7) of this section, the superintendent of public instruction shall initiate fund withholding, fund recovery, or any other sanction deemed appropriate.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-338, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-338, filed 10/11/95, effective 11/11/95.]

(2) Investigation by the superintendent of public instruction may include on-site investigations as appropriate.

(3) Upon completion of the investigation, ((investigating staff)) the individual shall provide the superintendent of public instruction with a written report on the results of the investigation.

(4) The ((superintendent of public instruction)) designated investigator shall respond in writing to the complainant as soon as possible but in no event later than sixty calendar days after the date of receipt of such complaint by the superintendent of public instruction.

(5) The response shall clearly state either:

(a) That the complaint is without merit, the allegations are denied, and the basis for such denial; or

(b) The reasonable corrective measures deemed necessary to correct any violation. Any such corrective measures deemed necessary shall be instituted as soon as possible but in no event later than thirty calendar days following the date of the response to the complainant.

[Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-344, filed 10/11/95, effective 11/11/95.]

(1) If the district or other public agency did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the student before the behavior that resulted in the removal occurred, the district or other public agency shall convene an individualized education program meeting to develop an assessment plan.

(2) If the student already has a behavioral intervention plan, the individualized education program team shall meet to review the plan and its implementation and modify it, as necessary, to address the behavior.

(3) As soon as practicable after developing the plan described in subsection (1) of this section, and completing the assessments required by the plan, the district or other public agency shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.

(4) If subsequently, a special education student who has a behavioral intervention plan and who has been removed from the student's current educational placement for more than ten school days in a school year is subjected to a removal that does not constitute a change of placement under WAC 392-172-373, the IEP team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary.

If one or more of the team members believe that modifications are needed, the team shall meet to modify the plan and its implementation, to the extent the team determines necessary.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-377, filed 12/1/99, effective 1/1/00.]

(a) The parent of the student has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational or other public agency that the student is in need of special education and related services;

(b) The behavior or performance of the student demonstrates the need for these services in accordance with this chapter;

(c) The parent of the student has requested an evaluation of the student pursuant to this chapter; or

(d) The teacher of the student, or other personnel of the district or other public agency, has expressed concern about the behavior or performance of the student to the director of special education of the district or other public agency or to other personnel of the district or other public agency in accordance with their established child find or special education referral system.

(2) A district or other public agency would not be deemed to have knowledge under subsection (1) of this section, if as a result of receiving the information, the district or other public agency:

(a) Either:

(i) Conducted an evaluation consistent with this chapter and determined that the student was not a special education student; or

(ii) Determined that an evaluation was not necessary; and

(b) Provided notice to the student's parents of its determination consistent with this chapter.

(3) If the district or other public agency does not have knowledge that a student is a special education student prior to taking disciplinary measures against the student (in accordance with subsections (1) and (2) of this section), the student may be subjected to the same disciplinary measures as measures applied to students without disabilities who engaged in comparable behaviors consistent with this section((.)):

(((4))) (a) If a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures under this section, the evaluation must be conducted in an expedited manner.

(((5))) (b) Until the evaluation is completed, the student remains in the educational placement determined by school or other public agency which can include suspension or expulsion without educational services.

(((6))) (c) If the student is determined to be a special education student taking into consideration information from the evaluation conducted by the district or other public agency and information provided by the parents, the district or other public agency shall provide special education and any necessary related services in accordance with the provisions of this chapter, including the discipline procedures and free appropriate public education requirements.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-38410, filed 12/1/99, effective 1/1/00.]

(2) State ((publications)) forms, procedural safeguards and parent handbooks regarding special education are available in ((alternative languages and formats)) Spanish, Vietnamese, Russian, Cambodian, and Korean, and alternate formats (braille and tape) on request.

(3) Personally identifiable information about students for use by the state may be contained in citizen's complaints, safety net applications, due process hearings and mediation agreements. The state may also receive personally identifiable information as a result of grant evaluation performance. This information is removed before forwarding information to other agencies or individuals requesting the information, unless the parent or adult student consents to release the information or the information is allowed to be released without parent consent under the regulations implementing the Family Educational Rights and Privacy Act, 34 CFR Part 99.

(4) Before undertaking any major identification, location, or evaluation activity, the state, at a minimum, publishes notice in newspapers with circulation adequate to notify parents throughout the state of the activity and posts information on its web site.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-404, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-404, filed 10/11/95, effective 11/11/95.]

(2) One official at each participating agency shall be designated as the individual responsible for assuring the confidentiality of any personally identifiable information.

(3) All persons collecting or using personally identifiable information shall receive training or instruction regarding:

(a) The procedures on protection of the confidentiality of personally identifiable information, contained in this chapter, state law, the regulations implementing the Family Educational Rights and Privacy Act (34 CFR Part 99), and the school district's or other public agency's procedures.

(4) Each participating agency shall maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-424, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-424, filed 10/11/95, effective 11/11/95.]

(2) The information shall thereafter be destroyed at the request of the parent(s) or adult student. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed and year completed may be maintained without time limitation.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-426, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-426, filed 10/11/95, effective 11/11/95.]

(2) Procedures for monitoring school districts and other public agencies include:

(a) Collection of previsit data;

(b) Conduct of on-site visits; and

(c) Comparison of a sampling of evaluation reports and individualized education programs with the services ((actually)) provided.

(3) Following a monitoring visit, ((an interim)) a monitoring report((, including a proposed corrective action plan,)) shall be submitted to the school district or other public agency. The monitoring report shall include, but not be limited to:

(a) Findings of noncompliance, if any; ((and))

(b) Required student specific corrective actions ((for remediation of any such instance(s) of noncompliance)); and

(c) Areas that will require a corrective action plan to address any systemic issues determined through the monitoring.

(4) The school district or other public agency shall have thirty calendar days after the date of its receipt of the interim monitoring report to provide the office of superintendent of public instruction with:

(a) ((Acceptance of the report; or

(b))) Supplemental arguments and/or facts which may serve as a basis for alteration of the monitoring report (if any); and

(((c) Any revisions to the)) (b) Submission of a proposed corrective action plan which sets forth the measures the district or other public agency shall take and time period(s) within which the district or other public agency shall act in order to remediate the instance(s) of noncompliance.

(5) In the event that the district or other public agency submits supplemental arguments and/or facts which may serve as a basis for alteration of the monitoring report, or submits a corrective action plan that is not approved, the office of superintendent of public instruction shall ((provide the district or other public agency with a)) determine whether or not any revisions are necessary, and the extent to which the proposed action is acceptable and issue final monitoring report within thirty calendar days after receipt of the ((supplemental arguments and/or facts)) response.

(6) If the school district or other public agency ((fails to)) does not comply with a corrective action plan approved pursuant to subsections (4)(b) and (5) of this section, the superintendent of public instruction or designee shall institute procedures to ensure ((corrective action)) compliance with applicable state and federal rules. Such procedures may include one or more of the following:

(a) Verification visits by office of superintendent of public instruction staff, or its designee, to:

(i) Determine whether the school district or other public agency is taking the required corrective action;

(ii) Expedite the school district and other public agency's response to the final monitoring report; and

(iii) Provide any necessary technical assistance to the school district or other public agency in its efforts to comply.

(b) Withholding, in whole or part, a specified amount of state and/or federal special education funds, in compliance with the provisions of WAC 392-172-590 and 392-172-514.

(c) Initiating an audit of the school district or other public agency consistent with WAC 392-172-512.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-504, filed 12/1/99, effective 1/1/00. Statutory Authority: Chapter 28A.155 RCW. 95-21-055 (Order 95-11), 392-172-504, filed 10/11/95, effective 11/11/95.]

(2) On either a total or per-capita basis, the state will not reduce the amount of state financial support for special education and related services for special education students, or otherwise made available because of the excess costs of educating those students, below the amount of that support for the preceding fiscal year.

[Statutory Authority: RCW 28A.155.090(7), 28A.300.070 and 20 U.S.C. 1400 et seq. 99-24-137, 392-172-507, filed 12/1/99, effective 1/1/00.]

     The following sections of the Washington Administrative Code are repealed:

WAC 392-172-188	Reevaluation -- Purposes.
WAC 392-172-238	Service arrangements.

Washington State Code Reviser's Office