Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-12-052.

     Title of Rule and Other Identifying Information: The office of superintendent of public instruction (OSPI) is repealing chapter 392-172 WAC, which contain the rules for provision of special education services to special education students. The rules will be contained in new chapter 392-172A WAC, rules for the provision of special education services. This new chapter incorporates changes required as a result of the reauthorization of the federal Individuals with Disabilities Education Act of 2004 (IDEA 2004) and the federal regulations implementing Part B of IDEA. 2004 School district and other public agencies identify students who may be eligible for special education services and provide services to those students. The state is required to adopt state rules in conformance with Part B of IDEA 2004 in order to be eligible for federal funding.

     Hearing Location(s): Educational Service District 101, 4202 South Regal Street, Spokane, WA 99223-7738, Room K-20 Room, on Wednesday, May 23, 2007, at 1:00 p.m.; at the Hilton Garden Inn, 401 East Yakima Avenue, Yakima, WA 98901, on Thursday, May 17, 2007, at 3:00 p.m.; and at the Office of Superintendent of Public Instruction, 600 Washington Street S.E., Brouillet Conference Room, 4th Floor, Olympia, WA 98504-7200, on Monday, May 14, 2007, at 9:00 a.m.

     Date of Intended Adoption: June 15, 2007.

     Submit Written Comments to: Doug Gill, Special Education, 600 Washington Street S.E., Olympia, WA 98504, e-mail SpecEdWACComments@k12.wa.us, fax (360) 586-0247, by June 10, 2007.

     Assistance for Persons with Disabilities: Contact Jessica Diaz by May 15, 2007, TTY (360) 586-0126 or (360) 725-6075.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the rule changes are to conform to the federal regulations that implement Part B of IDEA. The rule changes implement already existing statutory changes required as a result of the reauthorization of IDEA and reorders the regulations so that they more closely align with the federal regulation format. The new chapter contains additional definitions, including information regarding the cross-requirements of the IDEA and the Elementary and Secondary Education Act (ESEA); and contains changes including: Consent; unilateral private school placement and child find; nonpublic agency placement; additional related services; transition; evaluation procedures for specific learning disabilities; IEP content and procedural requirements; extendend [extended] school year services; discipline; state complaint procedures; due process hearing requests and procedures for appeals; other procedural safeguards changes; maintenance of effort for local education agencies; early intervening services; hearing procedures related to public agency eligibility for Part B funds; federal reimbursement for high need students under the state's safety fund; state monitoring requirements, including district performance as measured by the state's performance indicators; and disproportionality. The new chapter incorporates federal regulations, required state procedures for implementing Part B of IDEA and state requirements.

     Statutory Authority for Adoption: RCW 28A.155.090(7).

     Statute Being Implemented: Chapter 28A.155 RCW.

     Rule is necessary because of federal law, 20 U.S.C. Sections 1400 et. seq.

     Name of Proponent: OSPI, special education, governmental.

     Name of Agency Personnel Responsible for Drafting: Pam McPartland, Supervisor, Office of Superintendent of Public Instruction, (360) 725-6075; Implementation and Enforcement: Douglas H. Gill, Director, Office of Superintendent of Public Instruction, (360) 725-6075.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The rule changes affect governmental agency requirements for provision of special education services.

     A cost-benefit analysis is not required under RCW 34.05.328. OSPI is not one of the agencies required under RCW 34.05.328 to complete the significant legislative analysis. In addition, this rule incorporates requirements contained in 20 U.S.C. Secs. 1400 et. seq.; 34 C.F.R. Part 300, and chapter 28A.155 RCW.

April 2, 2007

Bob Harmon

Assistant Superintendent

OTS-9619.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 392-172-010	Authority.
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 392-172-040	Definitions of "evaluation," "reevaluation," "consent," "day" and "native language."
WAC 392-172-045	Definition of "special education" and other terms.
WAC 392-172-055	Related services.
WAC 392-172-065	Definition -- Supplementary aids and services.
WAC 392-172-070	Definition -- Assistive technology device.
WAC 392-172-073	Definition -- Assistive technology service.
WAC 392-172-075	Availability of assistive technology.
WAC 392-172-080	Proper functioning of hearing aids.
WAC 392-172-100	Child find.
WAC 392-172-102	Referrals.
WAC 392-172-104	Referral procedures -- Time line.
WAC 392-172-105	Parent participation in meetings and notice.
WAC 392-172-106	General areas of evaluation.
WAC 392-172-108	Evaluation procedures.
WAC 392-172-10900	Determination of needed evaluation data for an initial evaluation.
WAC 392-172-10905	Evaluation report and documentation of determination of eligibility.
WAC 392-172-111	Determination of eligibility and parental notification.
WAC 392-172-114	Definition and eligibility criteria for developmentally delayed.
WAC 392-172-116	Areas of developmental delay -- Definitions.
WAC 392-172-118	Definition and eligibility for emotionally/behaviorally disabled.
WAC 392-172-120	Definition and eligibility for communication disordered.
WAC 392-172-122	Definition and eligibility for orthopedically impaired.
WAC 392-172-124	Definition and eligibility for health impaired.
WAC 392-172-126	Definition and eligibility for specific learning disability.
WAC 392-172-128	Specific learning disability -- Evaluation procedures.
WAC 392-172-130	Discrepancy tables for determining severe discrepancy under WAC 392-172-132.
WAC 392-172-132	Method for documenting severe discrepancy.
WAC 392-172-134	Definition and eligibility for mental retardation.
WAC 392-172-136	Definition and eligibility for multiple disabilities.
WAC 392-172-138	Definition and eligibility for deafness.
WAC 392-172-140	Definition and eligibility criteria for hearing impairment.
WAC 392-172-142	Definition and eligibility for visually impaired/blindness.
WAC 392-172-144	Definition and eligibility for deaf/blindness.
WAC 392-172-146	Definition and eligibility for autism.
WAC 392-172-148	Definition and eligibility for traumatic brain injury.
WAC 392-172-150	Independent educational evaluation.
WAC 392-172-153	IEP team members.
WAC 392-172-156	IEP meetings.
WAC 392-172-15700	Parent and general education teacher participation in IEP meetings.
WAC 392-172-15705	Parent involvement in placement decisions.
WAC 392-172-158	Individualized education program -- Implementation.
WAC 392-172-159	Development, review, and revision of individualized education program-consideration of special factors.
WAC 392-172-160	Individualized education program.
WAC 392-172-162	Physical education required.
WAC 392-172-163	Extended school year services.
WAC 392-172-164	Parent notice of individualized education program meeting -- Transition needs or services.
WAC 392-172-166	Transition services, student participation.
WAC 392-172-170	Initial service delivery -- Parental consent for initial placement -- Notice required.
WAC 392-172-172	Least restrictive environment.
WAC 392-172-174	Continuum of alternative service delivery options.
WAC 392-172-176	Transition to preschool program.
WAC 392-172-180	Procedures for establishing educational placement.
WAC 392-172-182	Reevaluation -- Requirement.
WAC 392-172-185	Reevaluation -- Notice and consent requirements.
WAC 392-172-186	Reevaluation -- Review of existing data and need for additional data.
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 392-172-204	Transportation.
WAC 392-172-208	Comparable facilities.
WAC 392-172-210	Program length.
WAC 392-172-212	Health or safety standards.
WAC 392-172-218	Home/hospital instruction.
WAC 392-172-219	Applicability.
WAC 392-172-220	Contractual services.
WAC 392-172-222	Approval of nonpublic agencies.
WAC 392-172-224	School district responsibility when contracting for the delivery of services in a public agency or approved nonpublic agency.
WAC 392-172-226	Residential educational services -- Methods of payment.
WAC 392-172-230	Placement of students by parents.
WAC 392-172-231	Reimbursement for private school placement.
WAC 392-172-232	Definition -- "Private school special education student(s)."
WAC 392-172-23300	Child count.
WAC 392-172-23305	Expenditures.
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 392-172-240	Personnel in private schools and agencies.
WAC 392-172-241	Service arrangements.
WAC 392-172-242	Equipment, property and supplies -- Construction.
WAC 392-172-244	Prohibition of segregation.
WAC 392-172-246	Funds and property not to benefit private schools.
WAC 392-172-248	Existing level of instruction.
WAC 392-172-300	General responsibility of public agencies.
WAC 392-172-302	When prior written notice must be given.
WAC 392-172-304	Parent consent.
WAC 392-172-306	Contents of prior written notice.
WAC 392-172-307	Procedural safeguards.
WAC 392-172-308	Surrogate parents.
WAC 392-172-309	Transfer of parental rights at age of majority.
WAC 392-172-310	Mediation -- Purpose.
WAC 392-172-312	Mediation -- Definition.
WAC 392-172-313	Mediators -- Qualified and impartial.
WAC 392-172-314	Request for mediation services.
WAC 392-172-316	Written mediation agreement -- Mediation discussions.
WAC 392-172-317	Meeting to encourage mediation.
WAC 392-172-324	Definition -- Complaint.
WAC 392-172-326	Definition -- Other subgrantee.
WAC 392-172-328	Informing citizens about complaint procedures.
WAC 392-172-329	Remedies for denial of appropriate services.
WAC 392-172-330	Right to register a complaint.
WAC 392-172-332	Contents of complaint.
WAC 392-172-334	Procedure for filing a complaint.
WAC 392-172-336	Designation of responsible employee.
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 392-172-342	Complaints against the superintendent of public instruction -- Designation of responsible employee(s).
WAC 392-172-344	Complaints against the superintendent of public instruction -- Investigation of and response to complaints.
WAC 392-172-348	Complaints and due process hearings.
WAC 392-172-350	Right to initiate -- Purposes.
WAC 392-172-351	Request for hearing, notice by parent.
WAC 392-172-352	Hearing officers -- Selection and expenses of -- Parent assistance.
WAC 392-172-354	Hearing rights.
WAC 392-172-356	Time line for hearing officer's decision -- Time and place of hearing.
WAC 392-172-360	Final decision -- Appeal to court of law.
WAC 392-172-362	Attorneys' fees.
WAC 392-172-364	Student's status during hearing and judicial review processes.
WAC 392-172-370	Disciplinary exclusion -- Purpose.
WAC 392-172-371	Disciplinary exclusion -- Definitions.
WAC 392-172-373	Change of placement for disciplinary removals.
WAC 392-172-37500	Removals -- Ten school days or less.
WAC 392-172-37505	Required services.
WAC 392-172-37510	Change of placement -- Removals for weapons or drugs.
WAC 392-172-377	Functional behavioral assessment and intervention plan.
WAC 392-172-379	Dangerous behavior -- Authority of hearing officer.
WAC 392-172-381	Determination of interim alternative educational setting.
WAC 392-172-38300	Manifestation determination review requirements.
WAC 392-172-38305	Procedures for conducting a manifestation determination.
WAC 392-172-38310	Determination that behavior was not manifestation of disability.
WAC 392-172-38400	Parent appeal.
WAC 392-172-38405	Placement during appeals.
WAC 392-172-38410	Protections for students not yet eligible for special education and related services.
WAC 392-172-38415	Expedited due process hearings.
WAC 392-172-385	Referral to and action by law enforcement and judicial authorities.
WAC 392-172-388	Aversive interventions.
WAC 392-172-390	Aversive interventions -- Definition.
WAC 392-172-392	Aversive interventions -- Prohibited forms.
WAC 392-172-394	Aversive interventions -- Other forms -- Conditions.
WAC 392-172-396	Aversive interventions -- Individualized education program requirements.
WAC 392-172-400	Definition of "educational records" as used in records rules.
WAC 392-172-402	Definitions -- "Destruction," "participating agency" and "personally identifiable."
WAC 392-172-404	Notice to parents.
WAC 392-172-406	Opportunity to examine records.
WAC 392-172-408	Access rights.
WAC 392-172-410	Record of access.
WAC 392-172-412	Records on more than one student.
WAC 392-172-414	List of types and locations of information.
WAC 392-172-416	Fees.
WAC 392-172-418	Amendment of records at the request of a parent or adult student.
WAC 392-172-420	Hearing procedures regarding records.
WAC 392-172-422	Consent.
WAC 392-172-424	Safeguards.
WAC 392-172-426	Destruction of information.
WAC 392-172-500	Advisory council.
WAC 392-172-502	Interagency agreements.
WAC 392-172-50300	Special education students covered by public insurance.
WAC 392-172-50305	Special education students covered by private insurance.
WAC 392-172-504	Monitoring.
WAC 392-172-506	State use and allocation of Part B funds.
WAC 392-172-507	State level nonsupplanting and maintenance of effort.
WAC 392-172-508	Definition of "unlawfully received or expended funds."
WAC 392-172-510	Child count procedures.
WAC 392-172-511	Disproportionality.
WAC 392-172-512	Audits.
WAC 392-172-514	Fund withholding.
WAC 392-172-516	Recovery of funds.
WAC 392-172-518	Fund withholdings to enforce parent appeal decisions.
WAC 392-172-520	Implementation by state of special education students placed or referred by school districts or other public agencies.
WAC 392-172-522	Students in public or private institutions.
WAC 392-172-524	Technical assistance training and monitoring activities.
WAC 392-172-526	State responsibility.
WAC 392-172-550	Comprehensive system of personnel development.
WAC 392-172-552	Definitions.
WAC 392-172-553	Adequate supply of qualified personnel.
WAC 392-172-559	Improvement strategies.
WAC 392-172-561	School district implementation of comprehensive system of personnel development.
WAC 392-172-572	Personnel standards.
WAC 392-172-574	Professional standards review.
WAC 392-172-576	Personnel shortages -- Requirement.
WAC 392-172-57700	Performance goals and indicators.
WAC 392-172-57800	Participation in assessments and reporting results.
WAC 392-172-57900	Reporting on suspension and expulsion rates.
WAC 392-172-580	School district eligibility -- Requirements.
WAC 392-172-582	Collaborative requests.
WAC 392-172-583	Exception for prior policies and procedures.
WAC 392-172-584	Review and amendment process.
WAC 392-172-585	Amendments to policies and procedures.
WAC 392-172-586	Notification of grant award.
WAC 392-172-588	Availability of information and public participation.
WAC 392-172-590	Denial of requests -- Opportunity for hearing.
WAC 392-172-595	Records related to grant funds.
WAC 392-172-600	School district or other public agency use of amounts.
WAC 392-172-605	School district or other public agency use of federal funds for preschool children.
WAC 392-172-610	School district or other public agency maintenance of effort.
WAC 392-172-615	School district or other public agency exceptions to maintenance of effort.
WAC 392-172-620	School district or other public agency -- Treatment of federal funds in certain fiscal years.
WAC 392-172-625	School-wide programs under Title I of the ESEA.
WAC 392-172-630	School district or other public agency permissive use of funds.
WAC 392-172-635	School district or other public agency coordinated services system.
WAC 392-172-640	School-based improvement plan.
WAC 392-172-645	Plan requirements.
WAC 392-172-650	School district responsibilities.
WAC 392-172-655	Limitation.
WAC 392-172-660	Additional requirements.
WAC 392-172-665	Extension of plan.

OTS-9618.2

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     (1) Implement chapter 28A.155 RCW consistent with the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.;

     (2) Ensure that all students eligible for special education have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;

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

     (4) Assist school districts, educational service agencies and federal and state agencies to provide for the education of all students eligible for special education; and

     (5) Assess and ensure the effectiveness of efforts to educate students eligible for special education.

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     (i) The OSPI to the extent that it receives payments under Part B and exercises supervisory authority over the provision of the delivery of special education services by school districts and other public agencies;

     (ii) School districts, and educational service districts; and

     (iii) State residential education programs established and operated pursuant to chapter 28A.190 RCW, 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; and

     (b) Are binding on each public agency in the state that provides special education and related services to students eligible for special education, regardless of whether that agency is receiving funds under Part B of the act.

     (2) Each school district or public agency is responsible for ensuring that the rights and protections under Part B of the act are given to students eligible for special education who are:

     (a) Referred to or placed in private schools and facilities by that public agency under the provisions of WAC 392-172A-04070 through 392-172A-04105; or

     (b) Placed in private schools by their parents under the provisions of WAC 392-172A-04000 through 392-172A-04060.

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     (1) The evaluation of the needs of a student, including a functional evaluation of the student in the student's customary environment;

     (2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by students eligible for special education;

     (3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

     (4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

     (5) Training or technical assistance for a student eligible for special education or, if appropriate, that student's family; and

     (6) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that student.

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     (b) If it is determined, through an appropriate evaluation, that a student has one of the disabilities identified in subsection (1)(a) of this section, but only needs a related service and not special education, the student is not a student eligible for special education under this chapter. School districts and other public agencies must be aware that there are other federal and state civil rights laws and rules that apply to students who have a disability regardless of the student's eligibility for special education and related services and such services must be provided in accordance with those laws.

     (c) Speech and language pathology, audiology, physical therapy, and occupational therapy services, may be provided as specially designed instruction, if the student requires those therapies as specially designed instruction, and meets the eligibility requirements which include a disability, adverse educational impact and need for specially designed instruction. They are provided as a related service under WAC 392-172A-01155 when the service is required to allow the student to benefit from specially designed instruction.

     (2) The terms used in this definition of a student eligible for special education are defined as follows:

     (a)(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a student's educational performance. 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.

     (ii) Autism does not apply if a student's educational performance is adversely affected primarily because the student has an emotional behavioral disability, as defined in subsection (2)(e) of this section.

     (iii) A student who manifests the characteristics of autism after age three could be identified as having autism if the criteria in (a)(i) of this subsection are satisfied.

     (b) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for students with deafness or students with blindness and adversely affect a student's educational performance.

     (c) Deafness means a hearing impairment that is so severe that the student is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a student's educational performance.

     (d)(i) Developmental delay means a student three through eight who is experiencing developmental delays that adversely affect the student's educational performance in one or more of the following areas: Physical development, cognitive development, communication development, social or emotional development or adaptive development and who demonstrates 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; or

     (B) One and one-half standard deviations below the mean in two or more of the five developmental areas.

     (ii) The five developmental areas for students with a developmental delay are:

     (A) Cognitive development: Comprehending, remembering, and making sense out of one's experience. Cognitive ability is the ability to think and is often thought of in terms of intelligence;

     (B) Communication development: The ability to effectively use or understand age-appropriate language, including vocabulary, grammar, and speech sounds;

     (C) Physical development: Fine and/or gross motor skills requiring precise, coordinated, use of small muscles and/or motor skills used for body control such as standing, walking, balance, and climbing;

     (D) Social or emotional development: The ability to develop and maintain functional interpersonal relationships and to exhibit age appropriate social and emotional behaviors; and

     (E) Adaptive development: The ability to develop and exhibit age-appropriate self-help skills, including independent feeding, toileting, personal hygiene and dressing skills.

     (iii) A school district is not required to adopt and use the category "developmentally delayed" for students, three through eight.

     (iv) If a school district uses the category "developmentally delayed," the district must conform to both the definition and age range of three through eight, established under this section.

     (v) School districts using the category "developmentally delayed," may also use any other eligibility category prior to the student turning nine.

     (vi) Students who qualify under the developmental delay eligibility category must be reevaluated before age nine and determined eligible for services under one of the other eligibility categories.

     (vii) The term "developmentally delayed, birth to three years" are those children under three years of age who:

     (A) Meet the eligibility criteria established in Part C of IDEA; or

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

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

     (e)(i) Emotional/behavioral disability means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:

     (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

     (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

     (C) Inappropriate types of behavior or feelings under normal circumstances.

     (D) A general pervasive mood of unhappiness or depression.

     (E) A tendency to develop physical symptoms or fears associated with personal or school problems.

     (ii) Emotional/behavioral disability includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance under (e)(i) of this subsection.

     (f) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a student's educational performance but that is not included under the definition of deafness in this section.

     (g) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student's educational performance.

     (h) Multiple disabilities means concomitant impairments, the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term, multiple disabilities does not include deaf-blindness.

     (i) Orthopedic impairment means a severe orthopedic impairment that adversely affects a student's educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

     (j) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that:

     (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and

     (ii) Adversely affects a student's educational performance.

     (k)(i) Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia, that adversely affects a student's educational performance.

     (ii) Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

     (l) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a student's educational performance.

     (m) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a student's educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.

     (n) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a student's educational performance. The term includes both partial sight and blindness.

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     (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication;

     (b) The parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes that activity. This includes a list of any records that will be released, and to whom they will be released, or records that will be requested and from whom; and

     (c) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

     (2) If a parent revokes consent, that revocation is not retroactive. This means that it does not undo an action that occurred after consent was given and before the consent was revoked.

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     (2) Business day means Monday through Friday, except for federal and state holidays, unless holidays are specifically included in the designation of a business day, in other sections of this chapter.

     (3) School day means any day, including a partial day that students are in attendance at school for instructional purposes, including students with and without disabilities.

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     (1) Authorized under chapter 28A.310 RCW to develop, manage, and provide services or programs to students eligible for special education within school districts.

     (2) Recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary schools and secondary schools.

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     (1) Machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house the machinery, utilities, or equipment; and

     (2) All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.

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     (1) Amounts received:

     (a) Under Part B of the act;

     (b) Under Part A of Title I of the ESEA; and

     (c) Under Parts A and B of Title III of the ESEA; and

     (2) Any state or local funds expended for programs that would qualify for assistance under any of the parts described in subsection (1) of this section, but excluding any amounts for capital outlay or debt service.

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     (1) Are provided at public expense, under public supervision and direction, and without charge;

     (2) Meet the standards of the OSPI, and the act;

     (3) Include an appropriate preschool, elementary school, or secondary school education in the state; and

     (4) Are provided in conformity with an individualized education program (IEP) that meets the requirements of WAC 392-172A-03090 through 392-172A-03135.

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     (b) A teacher does not meet the highly qualified definition if he or she is teaching pursuant to a temporary out-of-endorsement assignment or are teaching special education with a preendorsement waiver.

     (c) A teacher will be considered to meet the highly qualified standard in (a) of this subsection if that teacher is participating in an alternative route to special education certification program under which the teacher:

     (i) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;

     (ii) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;

     (iii) Assumes functions as a teacher only for a specified period of time not to exceed three years; and

     (iv) Demonstrates satisfactory progress toward full certification according to the state professional standards board rules, and the state ensures, through its certification and endorsement process, that the provisions of subsection (2) of this section are met.

     (2) Any public elementary school or secondary school special education teacher who is not teaching a core academic subject is highly qualified if the teacher meets the state certification requirements and has an endorsement in special education, or holds a continuing certificate.

     (3) Requirements for special education teachers teaching to alternate achievement standards. When used with respect to a special education teacher who teaches core academic subjects exclusively to students who are assessed against alternate achievement standards established under 34 CFR 200.1(d), highly qualified means the teacher, whether new or not new to the profession, may either:

     (a) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56 for any elementary, middle, or secondary school teacher who is new or not new to the profession; or

     (b) Meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards, based on the state professional standards board's certification requirements.

     (4) Requirements for special education teachers teaching multiple subjects. Subject to subsection (5) of this section, when used with respect to a special education teacher who teaches two or more core academic subjects exclusively to students eligible for special education, highly qualified means that the teacher may:

     (a) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56 (b) or (c);

     (b) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, which may include a single, high objective uniform state standard of evaluation (HOUSSE) covering multiple subjects; or

     (c) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate, not later than two years after the date of employment, competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under 34 CFR 200.56(c), which may include a single HOUSSE covering multiple subjects.

     (5) Teachers may meet highly qualified standards through use of the state's HOUSSE which meets all the requirements for a HOUSSE for a general education teacher.

     (6) Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular school district employee to be highly qualified, or to prevent a parent from filing a state citizen complaint under WAC 392-172A-05025 through 392-172A-05040 about staff qualifications with the OSPI.

     (7)(a) A teacher who is highly qualified under this section is considered highly qualified for purposes of the ESEA.

     (b) A certified general education teacher who subsequently receives a special education endorsement is a new special education teacher when first hired as a special education teacher.

     (8) Teachers hired by private elementary schools and secondary schools including private school teachers hired or contracted by school districts to provide equitable services to parentally placed private school students eligible for special education are not required to meet highly qualified standards addressed in this section. Teachers in nonpublic agencies are required to meet the certification and endorsement standards established by the professional educators standards board in TITLE 181 WAC.

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     (2) The term includes educational service districts (ESDs); and any other public institution or agency having administrative control and direction of a public elementary school or secondary school, including the school for the deaf and the school for the blind.

     (3) For the purposes of this chapter, use of the term school district includes public agencies responsible for the provision of special education and related services.

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     (a) The language normally used by that individual, or, in the case of a student, the language normally used by the parents of the student, except as provided in (b) of this subsection.

     (b) In all direct contact with a student (including evaluation of the student), the language normally used by the student in the home or learning environment.

     (2) For an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual, such as sign language, Braille, or oral communication.

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     (a) A biological or adoptive parent of a child;

     (b) A foster parent;

     (c) A guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the student, but not the state, if the student is a ward of the state;

     (d) An individual acting in the place of a biological or adoptive parent including a grandparent, stepparent, or other relative with whom the student lives, or an individual who is legally responsible for the student's welfare; or

     (e) A surrogate parent who has been appointed in accordance with WAC 392-172A-05130.

     (2)(a) Except as provided in (b) of this subsection, if the biological or adoptive parent is attempting to act as the parent under this chapter, and when more than one party meets the qualifications to act as a parent, the biological or adoptive parent must be presumed to be the parent unless he or she does not have legal authority to make educational decisions for the student.

     (b) If a judicial decree or order identifies a specific person or persons under subsection (1)(a) through (d) of this section to act as the "parent" of a child or to make educational decisions on behalf of a child, then that person or persons shall be determined to be the "parent" for purposes of this section.

     (3) The use of the term, "parent," includes adult students whose rights have transferred to them pursuant to WAC 392-172A-05135.

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     (1) The name of the student, the student's parent, or other family member;

     (2) The address of the student;

     (3) A personal identifier, such as the student's Social Security number or student number; or

     (4) A list of personal characteristics or other information that would make it possible to identify the student with reasonable certainty.

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     (2) Related services do not include a medical device that is surgically implanted, the optimization of that device's functioning (e.g., mapping), maintenance of that device, or the replacement of that device. Nothing in this subsection:

     (a) Limits the right of a student with a surgically implanted device (e.g., cochlear implant) to receive related services (as listed in paragraph (a) of this section) that are determined by the IEP team to be necessary for the student to receive FAPE;

     (b) Limits the responsibility of a public agency to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the student, including breathing, nutrition, or operation of other bodily functions, while the student is transported to and from school or is at school; or

     (c) Prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly.

     (3) Individual related services terms used in this definition are defined as follows:

     (a) Audiology includes:

     (i) Identification of students with hearing loss;

     (ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

     (iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip reading), hearing evaluation, and speech conservation;

     (iv) Creation and administration of programs for prevention of hearing loss;

     (v) Counseling and guidance of students, parents, and teachers regarding hearing loss; and

     (vi) Determination of students' needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.

     (b) Counseling services means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.

     (c) Early identification and assessment of disabilities in students means the implementation of a formal plan for identifying a disability as early as possible in a student's life.

     (d) Interpreting services includes:

     (i) 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 for students who are deaf or hard of hearing; and

     (ii) Special interpreting services for students who are deaf-blind.

     (e) Medical services means services provided by a licensed physician to determine a student's medically related disability that results in the student's need for special education and related services.

     (f) Occupational therapy means services provided by a qualified occupational therapist and includes:

     (i) Improving, developing, or restoring functions impaired or lost through illness, injury, or deprivation;

     (ii) Improving ability to perform tasks for independent functioning if functions are impaired or lost; and

     (iii) Preventing through early intervention, initial or further impairment or loss of function.

     (g) Orientation and mobility services means services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community; and can include teaching the student:

     (i) Spatial and environmental concepts and use of information received by the senses (such as sound, temperature and vibrations) to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);

     (ii) To use the long cane or a service animal to supplement visual travel skills or as a tool for safely negotiating the environment for students with no available travel vision;

     (iii) To understand and use remaining vision and distance low vision aids; and

     (iv) Other concepts, techniques, and tools.

     (h) Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP.

     (i) Physical therapy means services provided by a qualified physical therapist.

     (j) Psychological services includes:

     (i) Administering psychological and educational tests, and other assessment procedures;

     (ii) Interpreting assessment results;

     (iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning;

     (iv) Consulting with other staff members in planning school programs to meet the special educational needs of students as indicated by psychological tests, interviews, direct observation, and behavioral evaluations;

     (v) Planning and managing a program of psychological services, including psychological counseling for students and parents; and

     (vi) Assisting in developing positive behavioral intervention strategies.

     (k) Recreation includes:

     (i) Assessment of leisure function;

     (ii) Therapeutic recreation services;

     (iii) Recreation programs in schools and community agencies; and

     (iv) Leisure education.

     (l) Rehabilitation counseling services means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to a student with a disability by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 701 et seq.

     (m) School health services and school nurse services means health services that are designed to enable a student eligible for special education to receive FAPE as described in the student's IEP. School nurse services are services provided by a qualified school nurse. School health services are services that may be provided by either a qualified school nurse or other qualified person.

     (n) Social work services in schools includes:

     (i) Preparing a social or developmental history on a student eligible for special education;

     (ii) Group and individual counseling with the student and family;

     (iii) Working in partnership with parents and others on those problems in a student's living situation (home, school, and community) that affect the student's adjustment in school;

     (iv) Mobilizing school and community resources to enable the student to learn as effectively as possible in his or her educational program; and

     (v) Assisting in developing positive behavioral intervention strategies.

     (o) Speech-language pathology services includes:

     (i) Identification of children with speech or language impairments;

     (ii) Diagnosis and appraisal of specific speech or language impairments;

     (iii) Referral for medical or other professional attention necessary for the habilitation of speech or language impairments;

     (iv) Provision of speech and language services for the habilitation or prevention of communicative impairments; and

     (v) Counseling and guidance of parents, children, and teachers regarding speech and language impairments.

     (p) Transportation includes:

     (i) Travel to and from school and between schools;

     (ii) Travel in and around school buildings; and

     (iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a student eligible for special education.

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     (1) Means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and

     (2) Includes research that:

     (a) Employs systematic, empirical methods that draw on observation or experiment;

     (b) Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;

     (c) Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;

     (d) Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random assignment experiments, or other designs to the extent that those designs contain within condition or across condition controls;

     (e) Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and

     (f) Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.

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     (2) Special education includes:

     (a) The provision of speech-language pathology, occupational therapy, audiology, and physical therapy service as defined in WAC 392-172A-01155 when it meets the criteria in WAC 392-172A-01035 (1)(c);

     (b) Travel training; and

     (c) Vocational education.

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

     (a) 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 a part of the general education program.

     (b) Physical education means the development of:

     (i) Physical and motor fitness;

     (ii) Fundamental motor skills and patterns; and

     (iii) Skills in aquatics, dance, and individual and group games and sports including intramural and lifetime sports; and

     (iv) Includes special physical education, adapted physical education, movement education, and motor development.

     (c) Specially designed instruction means adapting, as appropriate to the needs of an eligible student, the content, methodology, or delivery of instruction:

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

     (ii) To ensure access of the student to the general curriculum, so that the student can meet the educational standards within the jurisdiction of the public agency that apply to all students.

     (d) Travel training means providing instruction, as appropriate, to students with significant cognitive disabilities, and any other eligible students 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 school, in the home, at work, and in the community).

     (e) 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 not requiring a baccalaureate or advanced degree.

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     (a) Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the student to facilitate his or her movement from school to post-school activities, including postsecondary education, vocational education, integrated employment, 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 student's strengths, preferences, and interests; and includes:

     (i) Instruction;

     (ii) Related services;

     (iii) Community experiences;

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

     (v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.

     (2) Transition services for students eligible for special education may be special education, if provided as specially designed instruction, or a related service, if required to assist a student eligible for special education to benefit from special education.

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     (2) A student who is determined eligible for special education services shall remain eligible 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 eligible for special education; or

     (b) The special education student has met high school graduation requirements established by the school district pursuant to rules of the state board of education, and the student has graduated from high school with a regular high school diploma. A regular high school diploma does not include a certificate of high school completion, or a general educational development credential. Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with WAC 392-172A-05010; or

     (c) The special education student enrolled in the public school system or is 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.

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     (2)(a) Students determined eligible for special education services and incarcerated in other adult correctional facilities will be provided special education and related services.

     (b) Subsection (2)(a) of this section does not apply to students aged eighteen to twenty-one if they:

     (i) Were not actually identified as being a student eligible for special education; and

     (ii) Did not have an IEP; unless the student:

     (A) Had been identified as a student eligible for special education and had received services in accordance with an IEP, but who left school prior to incarceration; or

     (B) Did not have an IEP in his or her last education setting, but who had actually been identified as a student eligible for special education.

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     (2) Nothing in this chapter relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to students eligible for special education.

     (3) Consistent with the IEP provisions in this chapter, the OSPI shall ensure that there is no delay in implementing a student's IEP, including any case in which the payment source for providing or paying for special education and related services to the student is being determined.

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     (a) Special education;

     (b) Related services; or

     (c) Supplementary aids and services.

     (2) On a case-by-case basis, the use of school-purchased assistive technology devices in a student's home or in other settings is required if the student's IEP team determines that the student needs access to those devices in order to receive FAPE.

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     (a) Beyond the normal school year;

     (b) In accordance with the student's IEP; and

     (c) Are provided at no cost to the parents of the student.

     (2) School districts must ensure that extended school year services are available when necessary to provide a FAPE to a student eligible for special education services.

     (3) Extended school year services must be provided only if the student's IEP team determines on an individual basis that the services are necessary for the provision of FAPE to the student.

     (4) A school district may not limit extended school year services to particular categories of disability or unilaterally limit the type, amount or duration of those services.

     (5) The purpose of extended school year services is the maintenance of the student's learning skills or behavior, not the teaching of new skills or behaviors.

     (6) School districts must develop criteria for determining the need for extended school year services that include regression and recoupment time based on documented evidence, or on the determinations of the IEP team, based upon the professional judgment of the team and consideration of factors including the nature and severity of the student's disability, rate of progress, and emerging skills, with evidence to support the need.

     (7) For the purposes of subsection (6) of this section:

     (a) Regression means significant loss of skills or behaviors if educational services are interrupted in any area specified on the IEP;

     (b) Recoupment means the recovery of skills or behaviors to a level demonstrated before interruption of services specified on the IEP.

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     (2) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.

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     (2) Each student eligible for special education services must be afforded the opportunity to participate in the general physical education program available to students who are not disabled unless:

     (a) The student is enrolled full time in a separate facility; or

     (b) The student needs specially designed physical education, as described in the student's individualized education program.

     (3) If specially designed physical education is required in a student's individualized education program, the school district shall ensure that the public agency responsible for the education of that student provides the service directly, or makes arrangements for it to be provided through other public or private programs.

     (4) The school district shall ensure that any student eligible for special education who is enrolled in a separate facility will be provided with appropriate physical education services.

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     (2) Child find activities must be calculated to reach students who are homeless, wards of the state, highly mobile students with disabilities, such as homeless and migrant students and students who are suspected of being a student with a disability and in need of special education, even though they are advancing from grade to grade.

     (3) The local school district shall have policies and procedures in effect that describe the methods it uses to conduct child find activities in accordance with subsections (1) and (2) of this section. Methods used may include but are not limited to activities such as:

     (a) Written notification to all parents of students in the district's jurisdiction regarding access to and the use of its child find system;

     (b) Posting notices in school buildings, other public agency offices, medical facilities, and other public areas, describing the availability of special education programs;

     (c) Offering preschool developmental screening;

     (d) Conducting local media informational campaigns;

     (e) Coordinating distribution of information with other child find programs within public and private agencies; and

     (f) Internal district review of students such as screening district-wide test results, in-service education to staff, and other methods developed by the school district to identify, locate and evaluate students including a systematic, intervention based, process within general education for determining the need for a special education referral.

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     (2) External components of surgically implanted medical devices. Each school district must ensure that the external components of surgically implanted medical devices are functioning properly.

     (3) A school district is not responsible for the postsurgical maintenance, programming, or replacement of the medical device that has been surgically implanted or of an external component of the surgically implanted medical device.

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     (1) To the maximum extent appropriate in the general education environment with students who are nondisabled; and

     (2) Special classes, separate schooling or other removal of students eligible for special education from the general educational environment occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.

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     (2) The continuum required in this section must:

     (a) Include the alternative placements listed in the definition of special education in WAC 392-172A-01175, such as instruction in general education classes, special education classes, special schools, home instruction, and instruction in hospitals and institutions; and

     (b) Make provision for supplementary services such as resource room or itinerant instruction to be provided in conjunction with general education classroom placement.

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

     (a) The student's individualized education program;

     (b) The least restrictive environment requirements contained in WAC 392-172A-02050 through 392-172A-02070, including this section;

     (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 student requires some other arrangement, the student shall be educated in the school that he or she would attend if nondisabled. In the event the student needs other arrangements, placement shall be as close as possible to the student's home.

     (4) A student shall not be removed from education in age-appropriate general classrooms solely because of needed modifications in the general education curriculum.

     (5) Notwithstanding subsections (1) through (4) of this section, an IEP team, or other team making placement decisions for a student convicted as an adult and receiving educational services in an adult correctional facility, may modify the student's placement if there is a demonstrated bona fide security or compelling penological interest that cannot otherwise be accommodated.

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     (2) Nothing in subsection (1) of this section shall be construed to create a federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services.

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     (1) Students participating in early intervention programs assisted under Part C of the IDEA, and who will participate in preschool programs assisted under Part B of the IDEA, experience a smooth and effective transition to those preschool programs in a manner consistent with the Part C requirements.

     (2) Each school district will participate in transition planning conferences arranged by the designated lead agency for Part C in the state. A transition planning conference will be convened for each student who may be eligible for preschool services at least ninety days prior to the student's third birthday.

     (3) By the third birthday of a student described in subsection (1) of this section, an IEP has been developed and is being implemented for the student consistent with WAC 392-172A-02000(1).

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     (a) All employees shall hold such credentials, certificates, endorsements or permits as are now or hereafter required by the professional educator standards board for the particular position of employment and shall meet such supplemental standards as may be established by the school district of employment. Supplemental standards established by a district or other public agency may exceed, but not be less than, those established by the professional educator standards board in accordance with TITLE 181 WAC and this section.

     (b) In addition to the requirement of this subsection (1), 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 OSPI, professional education and certification section.

     (c) Other certificated related services 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 professional educator standards board, as now or hereafter amended.

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

     (e) 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 professional educator standards board pursuant to WAC 181-82-130.

     (f) Paraprofessional staff and aides shall present evidence of skills and knowledge necessary to meet the needs of students eligible for special education, and shall be under the supervision of a certificated teacher with a special education endorsement or a certificated educational staff associate, as provided in (g) of this subsection. Paraprofessional staff in Title One school-wide programs shall meet ESEA standards for paraprofessionals. Districts shall have procedures that ensure that classified staff receive training to meet state recommended core competencies pursuant to RCW 28A.415.310.

     (g) Special education and related services must be provided by appropriately qualified staff. Other staff including general education teachers and paraprofessionals may assist in the provision of special education and related services, provided that the instruction is designed and supervised by special education certificated staff, or for related services by a certificated educational staff associate. Student progress must be monitored and evaluated by special education certificated staff or for related services, a certificated educational staff associate.

     (2) School districts must ensure that they take measurable steps to recruit, hire, train, and retain highly qualified personnel to provide special education and related services to students eligible for special education. There may be occasions when, despite efforts to hire or retain highly qualified teachers, they are unable to do so. The following options are available in these situations:

     (a) Teachers who meet state board criteria pursuant to WAC 181-81-110(3) as now or hereafter amended, are eligible for a preendorsement waiver. Application for the special education preendorsement waiver shall be made to the special education section at the OSPI.

     (b) In order to temporarily assign a classroom teacher without a special education endorsement to a special education position, the district or other public agency must keep written documentation on the following:

     (i) The school district 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.

     (ii) 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 professional educator standards board by the employing school district as required by WAC 181-16-195.

     (3) Teachers placed under the options described in subsection (2) of this section do not meet the definition of highly qualified.

     (4) Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be construed to create a right of action on behalf of an individual student or a class of students for the failure of a particular school district employee be highly qualified, or to prevent a parent from filing a state complaint about staff qualifications with the OSPI under WAC 392-172A-05025 through 392-172A-05040.

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     (a) A scheduled school bus;

     (b) Contracted transportation, including public transportation; and

     (c) Other transportation arrangements, including that provided by parents. Board and room cost in lieu of transportation may be provided whenever the above stated transportation options are not feasible because of the need(s) of a special education student or because of the unavailability of adequate means of transportation, in accordance with rules of the superintendent of public instruction.

     (2) Welfare of the student. The transportation of a special education student shall be in accordance with rules of the superintendent of public instruction governing transportation by public school districts and other public agencies.

     (3) Bus aides and drivers. Training and supervision of bus aides and drivers shall be the responsibility of the school district or other public agency superintendent or designee.

     (4) Special equipment. Special equipment may include lifts, wheelchair holders, restraints, and two-way radios. All such special equipment shall comply with specifications contained in the specifications for school buses as now or hereafter established by the superintendent of public instruction.

     (5) Transportation time on bus. Wherever reasonably possible, no student should be required to ride more than sixty minutes one way.

     (6) Transportation for state residential school students to and from the residential school and the sites of the educational program shall be the responsibility of the department of social and health services and each state residential school pursuant to law.

     (7) Transportation for a state residential school student, including students attending the state school for the deaf and the state school for the blind, to and from such school and the residency of such student shall be the responsibility of the district of residency only if the student's placement was made by such district or other public agency pursuant to an interagency agreement -- i.e., an appropriate placement in the least restrictive environment.

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     Home/hospital instructional services funded in accordance with the provisions of this section shall not be used for the initial or ongoing delivery of services to special education students. It shall be limited to placement as is deemed necessary to provide temporary intervention as a result of a physical disability or illness.

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     (b) Parental consent for an initial evaluation must not be construed as consent for initial provision of special education and related services.

     (c) The school district must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the student is eligible for special education.

     (d) If the student is a ward of the state and is not residing with the student's parent, the school district or public agency is not required to obtain informed consent from the parent for an initial evaluation to determine eligibility for special education services if:

     (i) Despite reasonable efforts to do so, the school district cannot discover the whereabouts of the parent of the child;

     (ii) The rights of the parents of the child have been terminated; or

     (iii) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

     (e) If the parent of a student enrolled in public school or seeking to be enrolled in public school does not provide consent for an initial evaluation under subsection (2) of this section, or the parent fails to respond to a request to provide consent, the school district may, but is not required to, pursue the initial evaluation of the student by using due process procedures or mediation.

     (f) The school district does not violate its child find and evaluation obligations, if it declines to pursue the initial evaluation.

     (2)(a) A school district that is responsible for making FAPE available to a student must obtain informed consent from the parent of the student before the initial provision of special education and related services to the student.

     (b) The school district must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the student.

     (c) If the parent of a student fails to respond or refuses to consent to services the school district may not use the due process procedures or mediation in order to obtain agreement or a ruling that the services may be provided to the student.

     (d) If the parent of the student refuses to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the school district:

     (i) Will not be considered to be in violation of the requirement to make available FAPE to the student for the failure to provide the student with the special education and related services for which the public agency requests consent; and

     (ii) Is not required to convene an IEP team meeting or develop an IEP.

     (3)(a) A school district must obtain informed parental consent, prior to conducting any reevaluation of a student eligible for special education services, subject to the exceptions in (d) of this subsection and subsection (4) of this section.

     (b) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the due process procedures to override consent or mediation to obtain an agreement from the parent.

     (c) The school district does not violate its child find obligations or the evaluation and reevaluation procedures if it declines to pursue the evaluation or reevaluation.

     (d) A school district may proceed with a reevaluation and does not need to obtain informed parental consent if the school district can demonstrate that:

     (i) It made reasonable efforts to obtain such consent; and<