Original Notice.

Preproposal statement of inquiry was filed as WSR 99-06-049.

Title of Rule: Rules for the provision of special education to special education students.

Purpose: Local school districts and other public agencies provide services to eligible special education students through compliance with special education regulations. The current regulations do not contain the required elements for service to special education students under the 1997 amendments to the Individuals with Disabilities Education Act. Amendments to existing regulations are necessary to implement the 1997 amendments to IDEA.

Other Identifying Information: Federal regulations (34 C.F.R. Part B) implementing IDEA 97 were published in March 1999. They require the state to adopt rules and procedures in conformance with IDEA in order to be eligible for federal funding.

Statutory Authority for Adoption: RCW 28A.155.090(7), 28A.300.070.

WAC #	State Statute(s)	Federal Regulation(s)
392-172-010	28A.155 28A.300.070
392-172-020	28A.155 28A.300.070	34 C.F.R. 300.1-300.2 and 34 C.F.R. 300.600
392-172-030	28A.155 28A.300.070	34 C.F.R. 300.121-122
392-172-035	28A.155 28A.300.070	34 C.F.R. 300.7, 300.13, 300.20, 300.22 and 300.517
392-172-040	28A.155 28A.300.070	34 C.F.R. 300.500 and 300.533
392-172-045	28A.155 28A.300.070	34 C.F.R. 300.7 and 34 C.F.R. 300.26
392-172-055	28A.155 28A.300.070	34 C.F.R. 300.7 and 34 C.F.R. 300.24
392-172-065	28A.155 28A.300.070	34 C.F.R. 300.28
392-172-070	28A.155 28A.300.070	34 C.F.R. 300.5
392-172-073	28A.155 28A.300.070	34 C.F.R. 300.6
392-172-075	28A.155 28A.300.070	34 C.F.R. 300.308
392-172-100	28A.155 28A.300.070	34 C.F.R. 300.125, 300.220 and 300.451
392-172-102	28A.155 28A.300.070	34 C.F.R. 300.125
392-172-104	28A.155 28A.300.070	34 C.F.R. 300.126 and 300.343
392-172-105	28A.155 28A.300.070	34 C.F.R. 300.501 and 300.345
392-172-106	28A.155 28A.300.070	34 C.F.R. 300.532
392-172-107	28A.155 28A.300.070	34 C.F.R. 300.533
392-172-108	28A.155 28A.300.070	34 C.F.R. 300.530-533 and 300.540
392-172-109	28A.155 28A.300.070	34 C.F.R. 300.530, 300.533-300.535, 300.541–300.543
392-172-111	28A.155 28A.300.070	34 C.F.R. 300.534
392-172-112	28A.155 28A.300.070	34 C.F.R. 300.24
392-172-114	28A.155 28A.300.070	34 C.F.R. 300.7 and 300.313
392-172-116	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-118	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-120	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-122	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-124	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-126	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-128	28A.155 28A.300.070	34 C.F.R. 300.541 and 300.542
392-172-132	28A.155 28A.300.070	34 C.F.R. 300.530
392-172-134	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-136	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-138	28A.155 28A.300.070	34 C.F.R. 300.7 and 300.303
392-172-140	28A.155 28A.300.070	34 C.F.R. 300 7 and 300.303
392-172-142	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-144	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-146	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-148	28A.155 28A.300.070	34 C.F.R. 300.7
392-172-150	28A.155 28A.300.070	34 C.F.R. 300.500 and 300.502
392-172-153	28A.155 28A.300.070	34 C.F.R. 300.344
392-172-156	28A.155 28A.300.070	34 C.F.R. 300.343
392-172-15700	28A.155 28A.300.070	34 C.F.R. 300.345 and 300.346
392-172-15705	28A.155 28A.300.070	34 C.F.R. 300.501
392-172-158	28A.155 28A.300.070	34 C.F.R. 300.342
392-172-160	28A.155 28A.300.070	34 C.F.R. 300.347, 300.348 and 300.350
392-172-161	28A.155 28A.300.070	34 C.F.R. 300.346
392-172-162	28A.155 28A.300.070	34 C.F.R. 300.307
392-172-163	28A.155 28A.300.070	34 C.F.R. 300.309
392-172-164	28A.155 28A.300.070	34 C.F.R. 300.345
392-172-166	28A.155 28A.300.070	34 C.F.R. 300.344
392-172-170	28A.155 28A.300.070	34 C.F.R. 300.505
392-172-172	28A.155 28A.300.070	34 C.F.R. 300.550 and 553 and 300.305-306
392-172-174	28A.155 28A.300.070	34 C.F.R. 300.551
392-172-176	28A.155 28A.300.070	34 C.F.R. 300.132
392-172-180	28A.155 28A.300.070	34 C.F.R. 300.552
392-172-182	28A.155 28A.300.070	34 C.F.R. 300.536
392-172-184	28A.155 28A.300.070	34 C.F.R. 300.503
392-172-185	28A.155 28A.300.070	34 C.F.R. 300.505
392-172-186	28A.155 28A.300.070	34 C.F.R. 300.533-534
392-172-188	28A.155 28A.300.070	34 C.F.R. 300.533
392-172-190	28A.155 28A.300.070	34 C.F.R. 300.503 and 300.533
392-172-200	28A.155 28A.300.070	34 C.F.R. 300.136 and 300.380-382
392-172-202	28A.155 28A.300.070	34 C.F.R. 300.136 and 300.380-382
392-172-219	28A.155 28A.300.070	34 C.F.R. 300.400
392-172-220	28A.155 28A.300.070	34 C.F.R. 300.401
392-172-222	28A.155 28A.300.070	34 C.F.R. 300.401
392-172-224	28A.155 28A.300.070	34 C.F.R. 300.349 and 300.401
392-172-226	28A.155 28A.300.070	34 C.F.R. 300.301-302, 300.401 and 300.600
392-172-230	28A.155 28A.300.070	34 C.F.R. 300.403
392-172-231	28A.155 28A.300.070	34 C.F.R. 300.403
392-172-232	28A.155 28A.300.070	34 C.F.R. 300.450
392-172-23300	28A.155 28A.300.070	34 C.F.R. 300.453
392-172-23305	28A.155 28A.300.070	34 C.F.R. 300.453
392-172-23600	28A.155 28A.300.070	34 C.F.R. 300.454
392-172-23605	28A.155 28A.300.070	34 C.F.R. 300.455
392-172-23610	28A.155 28A.300.070	34 C.F.R. 300.456
392-172-239	28A.155 28A.300.070	34 C.F.R. 300.457
392-172-240	28A.155 28A.300.070	34 C.F.R. 300.460 and 300.461
392-172-242	28A.155 28A.300.070	34 C.F.R. 300.462
392-172-246	28A.155 28A.300.070	34 C.F.R. 300.459
392-172-300	28A.155 28A.300.070	34 C.F.R. 300.500
392-172-302	28A.155 28A.300.070	34 C.F.R. 300.503
392-172-304	28A.155 28A.300.070	34 C.F.R. 300.500 and 300.505
392-172-306	28A.155 28A.300.070	34 C.F.R. 300.503
392-172-307	28A.155 28A.300.070	34 C.F.R. 300.504
392-172-308	28A.155 28A.300.070	34 C.F.R. 300.20 and 300.515
392-172-309	28A.155 28A.300.070	34 C.F.R. 300.517
392-172-310	28A.155 28A.300.070	34 C.F.R. 300.506
392-172-312	28A.155 28A.300.070	34 C.F.R. 300.506
392-172-313	28A.155 28A.300.070	34 C.F.R. 300.506
392-172-314	28A.155 28A.300.070	34 C.F.R. 300.506
392-172-316	28A.155 28A.300.070	34 C.F.R. 300.506
392-172-317	28A.155 28A.300.070	34 C.F.R. 300.506
392-172-324	28A.155 28A.300.070	34 C.F.R. 300.662
392-172-328	28A.155 28A.300.070	34 C.F.R. 300.660
392-172-329	28A.155 28A.300.070	34 C.F.R. 300.660
392-172-330	28A.155 28A.300.070	34 C.F.R. 300.660 and 300.662
392-172-332	28A.155 28A.300.070	34 C.F.R. 300.662
392-172-334	28A.155 28A.300.070	34 C.F.R. 300.660 and 330.661
392-172-338	28A.155 28A.300.070	34 C.F.R. 300.660 and 300.661
392-172-348	28A.155 28A.300.070	34 C.F.R. 300.661
392-172-350	28A.155 28A.300.070	34 C.F.R. 300.507
392-172-351	28A.155 28A.300.070	34 C.F.R. 300.507
392-172-352	28A.155 28A.300.070	34 C.F.R. 300.507 and 300.508
392-172-354	28A.155 28A.300.070	34 C.F.R. 300.509
392-172-356	28A.155 28A.300.070	34 C.F.R. 300.511
392-172-360	28A.155 28A.300.070	34 C.F.R. 300.510 and 300.512
392-172-362	28A.155 28A.300.070	34 C.F.R. 300.513
392-172-364	28A.155 28A.300.070	34 C.F.R. 300.514
392-172-370	28A.155 28A.300.070	34 C.F.R. 300.519-300.529
392-172-371	28A.155 28A.300.070	34 C.F.R. 300.520 and 300.521
392-172-373	28A.155 28A.300.070	34 C.F.R. 300.519
392-172-37500	28A.155 28A.300.070	34 C.F.R. 300.520
392-172-37505	28A.155 28A.300.070	34 C.F.R. 300.121 and 300.520
392-172-37510	28A.155 28A.300.070	34 C.F.R. 300.520
392-172-377	28A.155 28A.300.070	34 C.F.R. 300.520
392-172-379	28A.155 28A.300.070	34 C.F.R. 300.521
392-172-381	28A.155 28A.300.070	34 C.F.R. 300.522
392-172-38300	28A.155 28A.300.070	34 C.F.R. 300.523
392-172-38305	28A.155 28A.300.070	34 C.F.R. 300.523
392-172-38310	28A.155 28A.300.070	34 C.F.R. 300.121 and 300.524
392-172-38400	28A.155 28A.300.070	34 C.F.R. 300.525
392-172-38405	28A.155 28A.300.070	34 C.F.R. 300.526
392-172-38410	28A.155 28A.300.070	34 C.F.R. 300.527
392-172-38415	28A.155 28A.300.070	34 C.F.R. 300.528
392-172-385	28A.155 28A.300.070	34 C.F.R. 300.529
392-172-388	28A.155
392-172-390	28A.155
392-172-392	28A.155
392-172-394	28A.155
392-172-396	28A.155
392-172-398	28A.155
392-172-400	28A.155 28A.300.070	34 C.F.R. 99 and 330.560
392-172-402	28A.155 28A.300.070	34 C.F.R. 300.500 and 300.560
392-172-404	28A.155 28A.300.070	34 C.F.R. 300.127 and 300.561
392-172-408	28A.155 28A.300.070	34 C.F.R. 300.562 and 300.576
392-172-410	28A.155 28A.300.070	34 C.F.R. 300.563
392-172-414	28A.155 28A.300.070	34 C.F.R. 300.565
392-172-416	28A.155 28A.300.070	34 C.F.R. 300.566
392-172-418	28A.155 28A.300.070	34 C.F.R. 300.567-569
392-172-420	28A.155 28A.300.070	34 C.F.R. 99.22 and 34 C.F.R. 300.570
392-172-422	28A.155 28A.300.070	34 C.F.R. 300.571
392-172-424	28A.155 28A.300.070	34 C.F.R. 300.572
392-172-426	28A.155 28A.300.070	34 C.F.R. 300.573
392-172-500	28A.155 28A.300.070	34 C.F.R. 300.650-300.653
392-172-502	28A.155 28A.300.070	34 C.F.R. 300.142
392-172-50300	28A.155 28A.300.070	34 C.F.R. 300.142
392-172-50305	28A.155 28A.300.070	34 C.F.R. 300.142
392-172-504	28A.155 28A.300.070	34 C.F.R. 300.1, 300.3, 300.128 and 300.141
392-172-506	28A.155 28A.300.070	34 C.F.R. 300.370 and 300.620-624
392-172-507	28A.155 28A.300.070	34 C.F.R. 300.153-154
392-172-510	28A.155 28A.300.070	34 C.F.R. 300.750-300.753
392-172-511	28A.155 28A.300.070	34 C.F.R. 300.755
392-172-512	28A.155 28A.300.070	34 C.F.R. 300.3, 300.141, 300.152 and 300.155
392-172-514	28A.155 28A.300.070	34 C.F.R. 300.3, 300.141, 300.144-300.145 and 300.155
392-172-516	28A.155 28A.300.070	34 C.F.R. 300.3 and 300.155
392-172-520	28A.155 28A.300.070	34 C.F.R. 300.401-300.402
392-172-526	28A.155 28A.300.070	34 C.F.R. 300.452
392-172-550	28A.155 28A.300.070	34 C.F.R. 300.135 and 300.380
392-172-552	28A.155 28A.300.070	34 C.F.R. 300.23 and 300.136
392-172-553	28A.155 28A.300.070	34 C.F.R. 300.381
392-172-559	28A.155 28A.300.070	34 C.F.R. 300.382
392-172-561	28A.155 28A.300.070	34 C.F.R. 300.221
392-172-574	28A.155 28A.300.070	34 C.F.R. 300.136
392-172-576	28A.155 28A.300.070	34 C.F.R. 300.136
392-172-57700	28A.155 28A.300.070	34 C.F.R. 300.124-300.125 and 300.137
392-172-57800	28A.155 28A.300.070	34 C.F.R. 300.138-300.139
392-172-57900	28A.155 28A.300.070	34 C.F.R. 300.146
392-172-580	28A.155 28A.300.070	34 C.F.R. 300.180
392-172-582	28A.155 28A.300.070	34 C.F.R. 300.190-300.192
392-172-583	28A.155 28A.300.070	34 C.F.R. 300.181
392-172-584	28A.155 28A.300.070	34 C.F.R. 300.3 and 300.180
392-172-585	28A.155 28A.300.070	34 C.F.R. 300.182
329-172-588	28A.155 28A.300.070	34 C.F.R. 300.242
392-172-590	28A.155 28A.300.070	34 C.F.R. 300.3, 300.196-300.197
392-172-595	28A.155 28A.300.070	34 C.F.R. 300.3 and 300.155
392-172-600	28A.155 28A.300.070	34 C.F.R. 300.230
392-172-605	28A.155 28A.300.070	34 C.F.R. 300.13, 300.155
392-172-610	28A.155 28A.300.070	34 C.F.R. 300.231
392-172-615	28A.155 28A.300.070	34 C.F.R. 300.232
392-172-620	28A.155 28A.300.070	34 C.F.R. 300.233
392-172-625	28A.155 28A.300.070	34 C.F.R. 300.234
392-172-630	28A.155 28A.300.070	34 C.F.R. 300.235
392-172-635	28A.155 28A.300.070	34 C.F.R. 300.244
392-172-640	28A.155 28A.300.070	34 C.F.R. 300.245
392-172-645	28A.155 28A.300.070	34 C.F.R. 300.246
392-172-650	28A.155 28A.300.070	34 C.F.R. 300.247
392-172-655	28A.155 28A.300.070	34 C.F.R. 300.248
392-172-660	28A.155 28A.300.070	34 C.F.R. 300.249
392-172-665	28A.155 28A.300.070	34 C.F.R. 300.250

Statute Being Implemented: RCW 28A.155, Special education.

Summary: These amendments incorporate the changes to the provision of special education services required by federal law. Changes include parental involvement in the identification, evaluation, and delivery of special education services and the procedures for those activities; student transition; changes to procedural safeguards and due process procedures; mediation requirements; private school participation; discipline procedures; citizen complaints; childfind; monitoring; and fiscal apportionment. The amendments remove procedures no longer required including written staff supervision plan; summary analysis, and other housekeeping language.

Reasons Supporting Proposal: The Office of Superintendent of Public Instruction is required to implement its policies and procedures through regulation in order to receive federal funding for special education students.

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

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

Rule is necessary because of federal law, Individuals with Disabilities Education Act, Amendments 1997 20 U.S.C. 1401 et seq.

Explanation of Rule, its Purpose, and Anticipated Effects: These rules govern school districts and other public agencies responsible for the provision of services to special education students. They include dispute resolution methods that include mediation, citizen complaints and due process procedures. The purpose of the rule is to assure that, to the extent possible, special education students are educated with the same curriculum and in the same settings as nondisabled students. The rules clarify that schools and other public agencies serving special education students must make all efforts to ensure parental involvement with their children in all phases of special education services, including the identification, evaluation, delivery and placement. The rules specify the procedures to be used in each phase of a special education student's eligibility determination, including identification, evaluation, eligibility determination, special education and related services needs, discipline, and termination from services. After the passage of the 1997 amendments to IDEA, local schools and other public agencies have been required to follow existing state regulations and federal law, where it conflicts with existing state regulations, or where it adds additional requirements. Adoption of these rules will align state rules with federal rules and thereby provide schools a single set of rules and guidance for complying with both federal and state special education requirements; eliminate confusion; and provide a basis or educating schools respecting the 1997 IDEA amendments.

Proposal Changes the Following Existing Rules: The following areas have changed under the proposed rules: Services that are recognized in this state as specially designed instruction are defined in that section and have been removed from the definition of related services. Parents are included as members of the evaluation process. Evaluations are documented in an evaluation report, replacing the written summary analysis. Notice and consent provisions are expanded to include consent for reevaluations. Revocation of consent is defined. IEP requirements are modified to increase student's involvement in general education. Local educational agencies are required to develop procedures for students with disabilities, including highly mobile students, private school students and students advancing from grade to grade. Appointments of foster parents as surrogates are clarified. Discipline procedures clarify change of placement, educational services required, due process for removing students with dangerous behavior, treatment of students not yet identified as an eligible special education student, and expedited hearing rights of parents and schools. Contracting and NPA procedures for school districts are amended to reflect current practice requirements. Services to students in private schools unilaterally placed by their parents have been modified. Mediation include options for local school districts to develop processes to encourage mediation. Transfer of rights to adult students is defined. School responsibility for confidentiality and disclosure of student records is clarified. Rights to appeal citizen complaint procedures are repealed. Special education personnel requirements are updated. Medicaid coverage of special education students is updated to reflect current law. Monitoring, funding and fiscal auditing are amended to reflect current procedures and federal requirements.

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

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

Hearing Location: At Educational Service District 113, Olympia/Grays Harbor Room, 601 McPhee Road S.W., Olympia, WA 98502, on September 21, 1999, at 6:00 p.m.; and at the Bryant Conference Center Auditorium, 910 North Ash, Spokane, WA, on September 22, 1999, at 6:30 p.m.; and at the Educational Service District 105, Kittitas Room, 33 South Second Avenue, Yakima, WA 98902, on September 27, 1999, at 4:00 p.m.

Assistance for Persons with Disabilities: Contact Helen Johnson by September 15, 1999, TDD (360) 586-0126, or (360) 753-6733.

Submit Written Comments to: Douglas Gill, Special Education, Office of Superintendent of Public Instruction, P.O. Box 47200, Olympia, WA 98504-7200, e-mail dgill@ospi.wednet.edu, fax (360) 586-0247, by September 27, 1999.

Date of Intended Adoption: September 30, 1999.

August 13, 1999

Terry Bergeson

Superintendent of

Public Instruction

OTS-3311.2

AMENDATORY SECTION(Amending Order 95-11, filed 10/11/95, effective 11/11/95)

WAC 392-172-010
Authority.

The authority for this chapter is RCW 28A.155.090(7) ((which)). This authority enables the superintendent of public instruction to promulgate rules and regulations to implement RCW 28A.155.  ((Such)) This authority is supplemented by RCW 28A.300.070 which authorizes the superintendent of public instruction to receive federal funds in accordance with the provisions of federal law.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-010, filed 10/11/95, effective 11/11/95.]

(1) The purposes of this chapter are to:

(((1))) (a) Implement RCW 28A.155 consistent with the Individuals with Disabilities Education Act, 20 United States Code section 1401 et seq.;

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

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

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

(((5) Establish compliance standards for)) (e) Assess and ensure effectiveness of the public agencies responsible for providing special education pursuant to RCW 28A.155((.)), including state residential school programs which are established and operated pursuant to RCW 28A.190.020 et seq., RCW 13.04.145 and RCW 72.40.

((Special education regulations must be implemented by)) (2) School districts and other public agencies ((with an awareness)) 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 and appropriate public education to a student who qualifies for special education and related services under these regulations.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-020, filed 10/11/95, effective 11/11/95.]

(1) Each school district or other public agency shall provide every special education student between the age of three and twenty-one years, a free and appropriate educational program, including special education students who have been suspended or expelled from school. A free appropriate public education is available to any eligible student even though the student is advancing from grade to grade.  The right to special education for eligible students commences on their third birthday with an individualized education program in effect by that date. If an eligible student's third birthday occurs during the summer, the student's individualized education program team shall determine the date when services under the individualized education program will begin.

(2) School districts or other public agencies may provide special education and related services to students with a disability who meet the eligibility criteria under WAC 392-172-114(1) in the birth through two years age group.  If a school district or other public agency provides an education to any student who is not disabled in the birth through two years age group, the district or other public agency shall make special education any required and related services available pursuant to this chapter to all its special education students of the same age.

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

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

(a) ((The multidisciplinary team)) 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 and modifications in the general education classroom may be necessary for educational benefit, such services would not represent special education services as defined in this chapter.) or

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

(c) The special education student has reached age twenty-one.  The student whose twenty-first birthday occurs on or before August 31 would no longer be eligible for special education.  The student whose twenty-first birthday occurs after August 31, shall continue to be eligible for special education and related services for the remainder of the school year.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-030, filed 10/11/95, effective 11/11/95.]

As used in this chapter:

(1) "Free appropriate, public education" 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 requirements of this chapter.

(2) "Special education student" ((and "student" (depending upon the context in which the terms are used))) 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 ((therefore)) determined to be ((in need of)) eligible for special education services; or

(b) ((For the purpose of due process protections, a person under the age of twenty-one enrolled in school or not, who has been referred and for whom the school district or other public agency has made a decision to evaluate; or

(c))) A ((person)) student under the age of twenty-one who resides in a residential school serving students with a disability in accordance with RCW 28A.190.020 et seq., RCW 13.04.145 and RCW 72.40; who also qualifies pursuant to (a) of this subsection.

(3) "Adult student" means a special education student who is ((over the age of)) 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 ((or imposed upon)) 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.

(4) "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 ((this chapter)) 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 ((a)) the student's welfare.  The term does not include the state if the special education student is a ward of the state or a foster parent unless appointed as a surrogate parent.

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

(a) Each public school district in the state;

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

(c) Each state operated program; and

(d) Each public ((or private)) organization or entity ((or person which provides)),including other political subdivisions of the state providing special education and/or related services to one or more special education students ((with a disability on behalf of a public school district or other public agency)) regardless of whether ((or not)) the organization or entity receives ((federal)) funds ((made available for purposes of)) under the Individuals with Disabilities Education Act.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-035, filed 10/11/95, effective 11/11/95.]

As used in this chapter:

(1) "Evaluation" means procedures used to determine:

(a) Whether a student is disabled; ((and))

(b) ((The nature and extent of the special education and related services that the student requires, if any.  The term includes procedures used selectively with an individual student and does not include basic tests administered to or procedures used with all students in a school, grade, or class.

(2) "Current evaluation data" for determination of eligibility means:

(a) Evaluation data obtained during a period of ninety calendar days prior to determining eligibility for students ages birth to six; or

(b) Evaluation data obtained during a period of one hundred eighty calendar days prior to determining eligibility for students ages six through twenty-one.

(3))) Whether the disability adversely affects educational performance; and

(c) Whether the student is in need of specially designed instruction.

(2) "Reevaluation" means procedures used to determine the special education student's continuing eligibility and need for special education and related services consistent with WAC 392-172-182 through 392-172-190.  Reevaluation ((may)) shall also be used to determine the appropriateness of the services being provided to the special education student.

(((4))) (3) "Consent" means that the parent or adult student:

(a) Has been fully informed of all information relevant to the activity for which consent is sought in his or her native language or other mode of communication((, including being informed of existing evaluation data to be used));

(b) Understands and agrees in writing to the activity for which consent is sought, and the consent describes the activity and lists any records which will be released and to whom; and

(c) Understands that the granting of consent is voluntary and may be revoked at any time.

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-040, filed 10/11/95, effective 11/11/95.]

(1) As used in this chapter "special education" means ((instruction that is specially designed to meet the unique needs of a special education student and provided at no cost to the parent or student.  Specially designed instruction includes instruction conducted in the classroom, in the home, in hospitals, institutions, and in other settings as well as physical education, and vocational education.  Special education also includes specially designed instruction when it is carried out as part of speech)) specially designed instruction provided to an eligible student as defined in WAC 392-172. Specially designed instruction as defined in subsection (4)(a) of this section shall be provided at no cost to the parents, in conformance with the student's IEP, and designed to meet the unique needs of the student. Specially designed instruction includes instruction conducted in the classrooms, in the home, in hospitals and institutions, and in other settings; and instruction in physical education.

(2) The term does not include individual accommodations to the general education classroom or modifications to the general education curriculum 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, 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 each meets the requirements of subsection (1) of this section.

((The following terms are incorporated within the definition of special education:

(1) "Specially designed instruction" means organized and planned instructional activities which are designed by certificated special education and related services personnel.  However, specially designed instruction may also be implemented by other than special education and related services personnel pursuant to an individualized education program.

The term does not include individual accommodations in the general education classroom which alone would be sufficient and effective to meet the individual needs of the student.

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

(3) "Physical education" means the development of:

(a) Physical and motor fitness;

(b) Fundamental motor skills and patterns; and

(c) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports).

The term includes special physical education, adapted physical education, movement education, and motor development.

(4) "Vocational education" means organized educational programs offering a sequence of courses that are directly related to the preparation of individuals in paid or unpaid employment in current or emerging occupations requiring other than a baccalaureate or advanced degree.  Such programs shall include competency-based applied learning that contributes to an individual's academic knowledge, higher-order reasoning, and problem-solving skills, work attitudes, general employability skills, and the occupation-specific skills necessary for economic independence as a productive and contributing member of society.  The term also includes applied technology education.

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

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

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

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

(iii) Be provided by appropriately qualified special education certificated staff, or designed and supervised by this staff and carried out by general education certificated personnel or trained classified staff pursuant to a properly formulated IEP consistent with WAC 392-172-160 (1)(c), so that the level of the district's commitment of resources will be clear to the parents and other IEP team members. 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 regular education program.

(c) "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.

(d) "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).

(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 requiring other than a baccalaureate or advanced degree.

(f) "Audiology" means the provision of habilitative activities related to a hearing impairment.

(((6))) (g) "Occupational therapy" is instruction designed to improve, develop or restore functions impaired or lost through illness, injury, or deprivation or to prevent further loss.

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

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

(((9))) (j) "Speech and language services" mean the provision of instruction for the habilitation or prevention of communication disorders.

(((10) "General education classroom" means instruction provided in a classroom that is generally designed to meet the needs of typically developing students who do not need special education.)) (k) "Behavioral intervention instruction" means providing instruction which addresses student behavior that impedes involvement and/or progress in the general curriculum.

(l) "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) 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.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-045, filed 10/11/95, effective 11/11/95.]

(1) As used in this chapter, the term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a special education student to benefit from special education.  ((These services include communication disorders services and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and evaluation of disabilities in students, counseling services, including rehabilitation counseling, medical services for diagnostic or evaluation purposes, and orientation and mobility services.  The term also includes school health services, social work services in schools, parent counseling and training, and classified staff services.))

Related services include classified staff services, counseling services, early identification and evaluation of disabilities in students, medical services, parent counseling and training, psychological services, recreation, rehabilitation counseling services, school health services, social work services in schools, and transportation.

The list of related services is not exhaustive and may include other developmental, corrective, or supportive services, if they are required to assist a special education student to benefit from special education.

(2) 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 special education, the student is not a special education student under this chapter.

(3) The terms used in the definition of "related services" are defined as follows:

(((1) "Audiology" includes:

(a) Identification of students with hearing loss;

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

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

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

(e) Determination of the student's need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.

(2))) (a) "Classified staff services" includes:

(((a))) (i) Services provided by classified staff which provide for the student's safety, personal care, and instructional assistance; and

(((b))) (ii) Services provided to certificated staff by classified staff which provide assistance for special education students to achieve placement in the least restrictive environment.

(((3))) (b) "Counseling services" means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. "Counseling services" also includes counseling and guidance of parents, children and teachers by audiologists regarding hearing loss and by speech pathologists regarding speech and language impairment.

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

(((5))) (d) "Medical services" means diagnostic and evaluation services provided by a licensed physician to determine a student's medically related disabling condition which may result in the student's need for special education and related services.

(((6) "Occupational therapy" includes:

(a) The identification and evaluation of the student's physical and self-care status;

(b) Determination of the student's need for occupational therapy; and

(c) Related counseling and guidance of parents, students, and staff regarding the provision of occupational therapy.

(7) "Orientation and mobility services" includes:

(a) Identification and evaluation of the student's mobility status;

(b) Determination of the student's need for orientation and mobility services; and

(c) Related counseling and guidance of parents, students and staff regarding orientation and mobility services.

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

(((9) "Physical therapy" includes:

(a) Identification and evaluation of the student's physical status;

(b) Determination of the student's need for physical therapy; and

(c) Related counseling and guidance of parents, students and staff regarding physical therapy services.

(10))) (f) "Psychological services" includes:

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

(((b))) (ii) Interpreting evaluation results;

(((c))) (iii) Obtaining, integrating, and interpreting information about the student's behavior and conditions relating to learning;

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

(e))) (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.

(((11))) (g) "Recreation" includes:

(((a))) (i) Assessment of leisure function;

(((b))) (ii) Therapeutic recreation services;

(((c))) (iii) Recreation programs in school and community agencies; and

(((d))) (iv) Leisure education.

(((12))) (h) "Rehabilitation counseling services" means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a special education student.  The term also includes vocational rehabilitation services provided to special education students by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended.

(((13))) (i) "School health services" means nursing or other health services provided to a special education student by a qualified school nurse ((or other qualified person)), registered nurse, licensed practical nurse or other persons qualified or appropriately trained to provide the services in the student's educational setting.

(((14))) (j) "Social work services in schools" include:

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

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

(((c))) (iii) Working with those problems in a student's living situation (home, school, and/or community) that affect the student's adjustment in school; ((and

(d))) (iv) Mobilizing school and community resources to enable the student to benefit from his or her educational program; and

(v) Assisting in developing positive behavioral intervention strategies.

(((15) "Speech and language services" include:

(a) Identification of students with specific speech and language disorders;

(b) Diagnosis and appraisal of speech and language disorders;

(c) Referral for medical or other professional attention necessary for the habilitation of speech and language disorders; and

(d) Counseling and guidance of parents, students, and staff regarding speech and language disorders.

(16))) (k) "Transportation" includes:

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

(((b))) (ii) Travel in and around school buildings; and

(((c))) (iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a special education student.  ((The list of related services is not exhaustive and may include other developmental, corrective, or supportive services, if they are required to assist a special education student to benefit from special education.))

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

As used in this chapter, the term "supplementary aids and services" means ((any of the following:

(1) Specially designed instruction provided in conjunction with the general education classroom by personnel qualified pursuant to WAC 392-172-200.

(2) Any other service, including assistive technology or other assistive device, provided in conjunction with the general education classroom which permits the delivery of specially designed instruction.  Such instructional services must be designed, monitored, supervised and evaluated by special education personnel certificated pursuant to WAC 392-172-200 in cooperation with the general education classroom teacher)) aids, services, and other supports that are provided in regular education classes or other education-related settings to enable special education students to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment requirements.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-065, filed 10/11/95, effective 11/11/95.]

The term "assistive technology device" means any item, piece of equipment, or product system--whether acquired commercially off the shelf, modified, or customized--that is used to increase, maintain, or improve functional capabilities of special education students.

((The term "assistive technology service" means any service that directly assists a special education student in the selection, acquisition, or use of an assistive technology device.  The term includes:

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

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

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

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

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-070, filed 10/11/95, effective 11/11/95.]

The term "assistive technology service" means any service that directly assists a special education student in the selection, acquisition, or use of an assistive technology device.  The term includes:

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

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

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

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

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

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

[]

Each public agency shall ensure that assistive technology devices or assistive technology services, or both, ((are made available to a special education student if required as a part of the student's individualized education program)) are made available to a special education student if required as part of the student's:

(1) Special education;

(2) Related services; or

(3) Supplementary aids and services.

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-075, filed 10/11/95, effective 11/11/95.]

(1) The local district or other public agency shall conduct childfind activities that apply to students ages birth through twenty-one for the purpose of locating, evaluating and identifying students with a suspected disability, regardless of the severity of their disability, who are residing within the boundaries of the district or other public agency and who are not currently receiving special education and related services.

((Childfind activities shall include written notification to all parents of children in the district or other public agency regarding access to and the use of the school district and other public agency's childfind system.  Written notification and posting will be consistent with WAC 392-172-306 (2)(b).

Childfind activities shall apply to students ages birth through twenty-one and may include, but are not limited to: Posting notice in school buildings of the availability of special education programs, preschool developmental screening, local media informational campaigns, liaison with public health and other medical and social agencies, public or private, a questionnaire for first-time enrolling students, screening of district-wide group standardized test results, in-service education to teaching staff, and cooperation as requested with state childfind programs.)) These activities shall extend to students attending private schools, including religious schools. The activities undertaken to carry out childfind in private schools shall be:

(a) Comparable to activities undertaken in public schools; and

(b) Developed in consultation with appropriate representatives of private school students on how to carry out the activities described in this section.

(2) Childfind activities must be calculated to reach:

(a) Highly mobile students with disabilities, such as homeless and migrant students; and

(b) Students who are suspected of being a student with a disability and in need of special education, even though they are advancing from grade to grade.

(3) The local school district, or other public agency shall have policies and procedures in effect that describe the methods it uses to conduct childfind activities in accordance with subsections (1) and (2) of this section. Methods used may include but are not limited to: Written notification to all parents of students in the district's or other public agency's jurisdiction regarding access to and the use of its childfind system; posting notices in school buildings and other public areas describing the availability of special education programs; offering preschool developmental screening; conducting local media informational campaigns; coordinating distribution of information with other childfind programs within public and nonpublic agencies; screening district-wide test results; inservice education to staff; and other methods developed by the school district to identify, locate and evaluate students. Such methods may also include a systematic, intervention based, process within general education for determining the need for a special education referral.

(4) The collection and use of data to meet the requirements of this section are subject to the confidentiality requirements in WAC 392-172-400 through 392-172-428.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-100, filed 10/11/95, effective 11/11/95.]

A referral of a student suspected of having a disability may be ((originated or transmitted through)) initiated by any source, either in writing or verbally((.

A referral may be initiated by any source)), including but not limited to parents, medical personnel, school district or other public agency personnel, community agencies, civil authorities, through district screening procedures, and by other ((identified,)) interested persons.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-102, filed 10/11/95, effective 11/11/95.]

((A school district or other public agency must complete a written referral when a student suspected of having a disabling condition is brought to the attention of any certificated staff member or administrator.

(1) If the referral under WAC 392-172-102 is made to a school district or other public agency certified staff or administrator (other than the special education designee) such staff must notify the school district and other public agency's special education designee at the time of the referral.  Within twenty-five school days, the district or other public agency superintendent or designee shall:

(a) Record the circumstance by date, origin, and reason(s) for the referral;

(b) Provide the student's parent(s) or the adult student written notice that the student has been referred because of a suspected disabling condition and that the district or other public agency will determine whether or not there is good reason to believe that the student is a candidate for evaluation;

(c) Review the referral;

(d) Collect and examine existing school, medical and other records in the possession of the school district or other public agency; and

(e) Based on the existing record, make a determination whether or not the student is a candidate for evaluation.  This decision shall be recorded in writing and shall set forth the date and the name of the person making the decision.  The superintendent or designee shall direct a notice to the student's parent(s) or the adult student that complies with the requirements of WAC 392-172-306.)) (1) When a student suspected of having a disability is brought to the attention of any certificated staff member under WAC 392-172-102, the school district or other public agency must document the referral in writing. The district or other public agency shall:

(a) Provide the student's parent(s) or the adult student written notice that the student has been referred because of a suspected disabling condition and that the district or other public agency will determine with parental input whether or not there is good reason to believe that the student is a candidate for evaluation;

(b) Review the referral;

(c) Collect and examine existing school, medical and other records in the possession of the parent, school district or other public agency; and

(d) Within twenty-five school days, make a determination whether or not the student is a candidate for evaluation. This decision shall be recorded in writing and shall set forth the date and the names of the persons making the decision. The superintendent or designee shall direct a notice to the student's parent(s) or the adult student that complies with the requirements of WAC 392-172-302.

(2) When the student is a candidate for evaluation, the school district or other public agency shall fully evaluate the student and arrive at a decision pursuant to WAC ((392-172-154)) 392-172-111 within:

(a) Thirty-five school days after the date written consent for an evaluation has been provided by the parent(s) or the adult student; or

(b) Thirty-five school days after the date the refusal of the parent(s) or the adult student to grant consent has been overridden pursuant to a hearing (or appeal) in accordance with WAC 392-172-350 et seq.; or

(c) Such other time period as may be agreed to by the parent(s) or the adult student and documented by school authorities, including specifying the reasons for extending the time line.

(3) The school district or other public agency shall ensure that within thirty-five school days following the agency's receipt of parent consent to an initial evaluation of a student:

(a) The student is evaluated; and

(b) If determined eligible under this chapter, special education and related services are made available to the student in accordance with an IEP.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-104, filed 10/11/95, effective 11/11/95.]

(1) Parents shall be afforded an opportunity to participate in meetings with respect to the identification, evaluation, educational placement and provision of a free appropriate public education to the student.

(2) Each public agency shall notify parents consistent with WAC 392-172-15700 (1)(a) and (2) to ensure that parents have the opportunity to participate in meetings described in this section.

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

(4) Each public agency shall ensure that the parents of a special education student are members of any group that makes decisions on the educational placement of their student. In implementing this requirement, the public agency shall use procedures consistent with WAC 392-172-15700 (1) and (2).

(5) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their student, the public agency shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.

(6) A placement decision may be made by a group without the involvement of the parents, if the public agency is unable to obtain the parents' participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement, including information that is consistent with the requirements of WAC 392-172-15700(4).

(7) The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group discussions relating to the educational placement of their student, including arranging for an interpreter for parents with deafness, or whose native language is other than English.

[]

(1) The evaluation of a student shall be in all areas related to the suspected disability, including, ((but not limited to)) if appropriate, health, vision, hearing, social ((skills,)) and emotional status, general intelligence, academic performance, ((communication skills,)) communicative status, and motor abilities((, career, vocational, and the need for transition services)).

(2) The evaluation shall be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-106, filed 10/11/95, effective 11/11/95.]

(1) As part of an evaluation, a group that includes the IEP team described in WAC 392-172-153, and other qualified professionals, as appropriate, shall:

Review existing evaluation data on the student, including:

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

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

(c) Observations by teachers and related services providers.

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

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

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

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

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

(4) 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.

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(((1) Every student who is evaluated or reevaluated)) The evaluation or reevaluation of a special education student shall be ((evaluated)) according to the procedures established in this chapter.  ((The superintendent of public instruction shall ensure that)) Each public agency ((establishes)) shall establish and implement((s protection in)) evaluation procedures which meet the requirements of this chapter.

(1) Before the initial provision of special education and related services ((to a special education student)), a full and individual initial evaluation of the student's educational needs must be conducted ((in accordance with this chapter)).

(2) ((The evaluation of a student (except one completed for a communication disordered student) shall be made by a multidisciplinary team.  The multidisciplinary team is a group of professionals selected by the district or other public agency and knowledgeable about the student and the area(s) of suspected disability(ies).

(3) If the referral is generated by a general education classroom teacher, the district or other public agency shall invite the referring teacher to serve on the multidisciplinary team.

(4) For a student suspected of having a learning disability, the multidisciplinary team must include:

(a) The student's general education classroom teacher; or

(b) If the child does not have a general education classroom teacher, a general education classroom teacher qualified to teach a child of his or her age; or

(c) For a child of less than school age, an individual qualified by the state to teach a child of his or her age; and

(d) At least one individual qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech language pathologist, or remedial reading teacher.

(5))) Each professional member of the ((team)) group shall be licensed, registered, credentialed, or certificated according to his or her professional standards in accordance with state statutes and rules.  ((If parents request the opportunity to attend a multidisciplinary team meeting, they shall be granted this opportunity.  Scheduling of the multidisciplinary team meeting shall be at the discretion of the school district or other public agency.  Upon request, the district or other public agency shall notify the parent(s) of the time and place of multidisciplinary team meetings.  These provisions apply to all multidisciplinary team meetings conducted by the district or other public agency, including those resulting from initial evaluations and reevaluations.

(6)))

(3) A variety of assessment tools and strategies shall be used to gather relevant functional and development information about the student, including information provided by the parents, and information related to enabling the student to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities), that may assist in determining:

(a) Whether the student is a special education student consistent with WAC 392-172-035(2); and

(b) The content of the student's individualized education program.

(4) No single procedure ((or test)) shall be the sole criterion for determining a student's eligibility or disabling condition and/or for determining the appropriate educational program for a student.

(((7))) (5) Test and other evaluation materials, ((procedures, and instruments)) used for the purpose of identification and programming shall be selected and administered so as not to be racially or culturally discriminatory.

(((8) All)) (6) Materials and procedures used to assess a student with limited English proficiency shall be selected and administered to ensure that they measure the extent to which the student has a disability and needs special education, rather than measuring the student's English language skills.

(7) Any standardized tests and other evaluation materials that are given to a student shall have been validated for the specific purpose for which they are used and shall accurately reflect whatever factors the tests purport to measure.  If properly validated tests are unavailable, ((the professional judgment of)) each member of the ((multidisciplinary team)) group shall use professional judgment to determine eligibility for special education based on other evidence of the existence of a disability and need for special education.  This professional judgment shall be documented in ((a written narrative)) the evaluation report. If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.

(((9))) (8) All tests and other evaluation materials shall be administered by ((qualified)) trained and knowledgeable personnel in conformance with the instructions of the test producer.

(((10))) (9) Tests and other evaluation materials((, procedures or instruments)) shall be provided and administered in a student's ((primary)) native language or other mode of communication, unless it is clearly not feasible to do so.  Tests shall be selected and administered so as to ensure that, when a test is administered to a student with impaired ((and/or unique)) sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student's impaired ((and/or unique)) sensory, manual, ((communication)) or speaking skills (except where those skills are the factors the test purports to measure).  Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.

(((11) In conducting evaluation activities, appropriate evaluation team members shall:

(a) Collect and review all available existing school, medical, and other records pertinent to the suspected disabling condition(s) of the student, including previous screening and evaluation results, health reports, relevant cumulative records and recommendations of related service providers; and

(b) Conduct evaluation activities required by this chapter; and

(c) Collect such other data as needed to verify the results of standardized testing, including but not limited to parent and/or teacher interviews and current classroom performance data.

(12) Each person actually performing an evaluation shall complete and sign an evaluation report.  Information used to support the evaluation, but which is not incorporated into the file (e.g., review of health record), shall be referenced as to date of record, location, and source person.  Each report shall specify:

(a) The procedures and instruments used;

(b) The results obtained;

(c) The apparent significance of findings as related to the student's instructional program, including a description of the specific factors which are interfering with the student's educational performance and the special education and related services needed to assist the student in benefiting from his or her educational placement; and

(d) The need to schedule services over a period of time that exceeds the regular one hundred eighty-day school calendar.)) (10) Each school district or other public agency shall use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(11) Each school district or other public agency shall use assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the student.

(12) For a student suspected of having a learning disability, the determination of whether the student is eligible under this chapter shall be made by the student's parents and a group of qualified professionals which must include:

(a) The student's general education classroom teacher; or

(b) If the child does not have a general education classroom teacher, a general education classroom teacher qualified to teach a child of his or her age; or

(c) For a child of less than school age, an individual qualified by the state to teach a child of his or her age; and

(d) At least one individual qualified to conduct individual diagnostic examinations of children, such as school psychologist, speech language pathologist, or remedial reading teacher.

(13) ((A written summary analysis of the)) An evaluation report((s)) shall be developed consistent with the requirements of WAC ((392-172-152)) 392-172-109.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-108, filed 10/11/95, effective 11/11/95.]

(1) At a minimum, an evaluation report must include:

(a) A statement of whether the student has a disability that meets the eligibility criteria in this chapter;

(b) How the student's disability affects the student's involvement and progress in the general curriculum or for preschool children, in appropriate activities;

(c) The recommended special education and related services needed by the student including specially designed instruction;

(d) Other information, as determined through the evaluation process and parental input, needed to develop an IEP;

(e) A statement that the student was evaluated in accordance with the evaluation procedures in WAC 392-172-108; and

(f) The date and signature of each professional member of the group who made the eligibility determination certifying that the report represents his or her conclusion. If the report does not reflect his or her conclusion, the professional member of the group must attach a separate statement representing his or her conclusions.

(2) Each professional member of the group who contributed to the determination of eligibility shall document the results of their assessment. This documentation of determination of eligibility must include:

(a) The procedures and instruments used in any assessment and the results obtained;

(b) Any conclusions from observations of the student; and

(c) A statement of the apparent significance of the findings as related to the student's instructional program.

(3) In interpreting evaluation data for the purpose of determining if a student is a special education student under this chapter, and the educational needs of the student, each public agency shall:

(a) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, physical condition, social or cultural background, and adaptive behavior; and

(b) Ensure that information obtained from all of these sources is documented and carefully considered.

(4) A student may not be determined to be a special education student if the determinant factor for that decision is:

(a) Lack of instruction in reading or math; or

(b) Limited English proficiency; and

(c) The student does not otherwise meet the eligibility criteria in this chapter.

(5) For a student suspected of having a learning disability, the report must also include a statement of:

(a) All of the information required in subsection (1) of this section;

(b) The specific learning disability(ies);

(c) The basis for making the determination;

(d) The relevant behavior noted during the observation of the student;

(e) The relationship of that behavior to the student's academic functioning;

(f) The medically relevant findings, if any;

(g) A statement about whether there is a severe discrepancy between achievement and ability that is not correctable without special education and related services; and

(h) The determination of the group concerning the effects of environmental, cultural, or economic disadvantage.

[]

(1) Upon completing the administration of tests and other evaluation materials:

(a) 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 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 parents or legal guardian 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.

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(1) Medical evaluations at the expense of a school district or other public agency shall be obtained subject to the following conditions:

(a) During the evaluation process the ((multidisciplinary)) IEP team and other qualified professionals, as appropriate, suspects a student of having a health problem which may affect his or her eligibility and need for special education.

(b) In accordance with criteria established by the school district or other public agency (((except in the case of an independent evaluation pursuant to WAC 392-172-150))).

(2) Medical evaluation services necessary to make a determination of the educational needs of residential school students, shall be the responsibility of the department of social and health services pursuant to RCW 28A.190.040. The state schools for the deaf and blind are responsible for the provision of these services under RCW 72.40.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-112, filed 10/11/95, effective 11/11/95.]

Definition and eligibility criteria for developmentally delayed are as follows:

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

(a) Demonstrate a 1.5 standard deviation or twenty-five percent delay in the developmental area of ((cognition ( WAC 392-172-116(1)), communication ( WAC 392-172-116(2)), fine motor ( WAC 392-172-116(3)), gross motor ( WAC 392-172-116(4)), or motor which for the purpose of this section shall be a combined delay of fine motor ( WAC 392-172-116(3)) and gross motor ( WAC 392-172-116(4)))) cognitive development, communication development, physical development, social 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 ((unless otherwise excluded)); and

(c) Need special education and related services.  Such children in order to continue to be eligible for special education and related services must be reevaluated prior to age three.

(2) As used in this chapter, the term "developmentally delayed, three to six years" shall mean those children between ((thirty-six months and the age of eligibility for entry to the first grade)) 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 ((six)) 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 ((six)) five developmental areas defined in WAC 392-172-116; or

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

(d) Need special education and related services.  ((Children who qualify for special education as developmentally delayed must be reevaluated prior to the age of eligibility for entry to first grade and a determination made that the student either:

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

(ii) Is no longer in need of special education and related services.  The procedural safeguard requirements in this chapter are also applicable to this provision.

(3) The term "developmentally delayed" does not include children under the age of eligibility for entry to the first grade who qualify solely for speech and language services under WAC 392-172-120.)) (e) Children aged six to nine years who 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, not later than three years after the eligibility decision for "developmentally delayed, three to six years."

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

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

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

(c) Need special education and 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. The procedural safeguard requirements in this chapter are also applicable to this provision.

(5) A school district or other public agency is not required to adopt and use the category "developmentally delayed" for any children 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 established under this section.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-114, filed 10/11/95, effective 11/11/95.]

The ((six)) five developmental areas for the purpose of applying eligibility criteria to developmentally delayed children are:

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

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

(3) ((Fine motor: Motor skills requiring precise, coordinated use of the small muscles;

(4) Gross motor: Motor skills used for body control such as standing, walking, balance and climbing;

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

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-116, filed 10/11/95, effective 11/11/95.]

(1) Students who are ((seriously)) emotionally/behaviorally disabled are those who exhibit over a long period of time and to a marked degree, one or more of the following characteristics((, which adversely affects their educational performance)):

(a) An inability to learn which cannot be explained by intellectual, sensory, or health factors;

(b) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(c) Inappropriate types of behavior or feelings under normal circumstances;

(d) A general pervasive mood of unhappiness or depression; or

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

(2) The term includes students who are schizophrenic.

(3) The term does not include students who are socially maladjusted, unless it is determined that they are also ((seriously)) emotionally/behaviorally disabled.

(4) All students considered for special education and related services as ((seriously)) emotionally/behaviorally disabled shall ((be evaluated according to the following)) have documentation for eligibility that:

(a) ((A current evaluation which)) Concludes that the student has ((a serious behavioral disability and which considers and describes the student's social and emotional behaviors and provides implications for educational planning, if any)) an emotional/behavioral disability which adversely affects educational performance and requires specially designed instruction.

(b) ((An evaluation which)) Describes behaviors ((which)) that distinguish between common disciplinary problem behaviors and ((serious behavioral disabilities)) an emotional/behavioral disability.  Common disciplinary problem behaviors (e.g., truancy, smoking, breaking school conduct rules) may exist in conjunction with ((serious behavioral disabilities)) an emotional/behavioral disability, but cannot be used as the sole criteria for recommending special education and related services.  ((The evaluation shall also include:

(i))) (c) Includes a social or developmental history compiled directly from the parent(s) and/or records, when parents are not available.

(((ii) Current)) (d) Includes academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually.

(((c) If the academic evaluation is completed and there is documentation showing that the student's disability is evident in the school environment, the following evaluation reports may be substituted for the school district and other public agency's evaluation.

(d) A current evaluation by a psychiatrist or a nonpublic school mental health professional who holds a graduate degree in a recognized mental health specialty that considers and describes the student's social and emotional behaviors, which concludes that the student has a serious behavioral disability, and provides implications for educational planning, if any.  The multidisciplinary team shall consider these implications in planning and implementing the student's educational program.))

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-118, filed 10/11/95, effective 11/11/95.]

A student shall be considered to have a communication disorder if there is ((present)) a documented communication disorder such as stuttering, voice disorder, language impairment, ((and/))or impaired articulation which adversely affects a student's educational performance((.  The evaluation procedures and eligibility standards outlined in this section apply to those students whose only disabling condition is a communication disorder.

All students being considered for special education and related services as communication disordered shall be evaluated and determined eligible for special education and related services)) and requires specially designed instruction.

Eligibility shall be determined according to the following:

(1) A ((current)) hearing screening report;

(2) A ((current)) description of the level of educational development ((as)) provided by the classroom teacher, or where available, by standardized tests in those areas affected by the ((speech and/or)) communication problem(s) including discussion of the existing or potential impact of the problem(s) on educational performance; and

(3) ((A current evaluation)) An assessment of the level of speech and/or language development, as measured by standardized tests or professionally recognized procedures, scales, or checklists appropriate to the student's age level and mode of communication, individually administered, and which considers the student's sex, dialect norms, social-cultural environment, and behaviors.  For children under the age of eligibility for entry to the first grade, the evaluation shall include developmental acquisition of speech and language.  Such measures shall result in one or more of the following findings that the student:

(a) Achieves a rating of moderate or severe on a standardized articulation test that yields a severity rating and/or misarticulates in comparison to developmental norms five or more unrelated phonemes each in two or more positions (initial, medial, or final) for children under the age of eligibility for entry to the first grade, three or more unrelated phonemes for students age six through age seven, or one or more for students over age seven, with consideration given to the student's speech intelligibility, physical ability, and/or therapy history.

(b) Has a delay in receptive and/or expressive language such that functioning is one year or more below chronological age for students up through age eight or functioning is two-thirds of chronological age or below for students over age eight.

(c) Has interruptions or dysfluencies in more than one speaking situation such as repetitions, prolongations, blockage in flow of speech, struggle, or avoidance behaviors which interfere with communication or are inconsistent with age or development.

(d) Has a deviation in voice quality, pitch, or loudness characterized by abusive vocal habits, or interference with communication, or is inconsistent with age or development, or demonstrates chronic hoarseness of duration of three weeks or more.

Whenever appropriate, a referral shall be made for medical and/or psychological and/or other ((evaluations shall be made)) assessments and the results considered in the ((evaluation)) determination of the student's ((suspected disabling condition)) eligibility for special education.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-120, filed 10/11/95, effective 11/11/95.]

Students who are orthopedically impaired are those who lack normal function of muscles, joints or bones due to congenital anomaly, disease or permanent injury, and such condition adversely affects their educational performance and requires specially designed instruction.

All students being considered for special education and related services as orthopedically impaired shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(1) A ((current)) medical evaluation by a qualified medical practitioner which describes and confirms the student's health circumstances and which provides any medical implications for educational planning;

(2) ((Current)) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually; and

(3) A ((current)) physical therapy and/or occupational therapy ((evaluation)) assessment which considers and describes implications for therapy as a part of educational planning.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-122, filed 10/11/95, effective 11/11/95.]

Students with health impairments are those who have limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment due to chronic or acute health problems--such as ((students with serious congenital heart defect, other congenital syndrome(s), other disorders of the cardiorespiratory systems, disorders of the central nervous system including epilepsy or neurological impairment, or other profound health circumstances or degenerative condition(s)--which)) a heart condition, rheumatic fever, nephritis, asthma, attention deficit disorder or attention deficit hyperactivity disorder, sickle cell anemia, hemophilia, lead poisoning, leukemia, or diabetes and adversely affects ((or with a high degree of professional certainty will affect)) their educational performance and requires specially designed instruction.

All students being considered for special education and related services as health impaired shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(1) ((A current)) An evaluation by a qualified practitioner which describes and confirms the student's health circumstances and which provides any implications for educational planning; and

(2) ((Current)) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-124, filed 10/11/95, effective 11/11/95.]

(1) Specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language ((which prevents the student from achieving commensurate with his or her age and ability levels in one or more of the areas listed in this subsection, when provided with learning experiences appropriate to the student's age and ability levels.  Such disorder may include problems in visual and auditory perception and integration and may manifest itself in an impaired ability to listen, think, speak or communicate clearly, read with comprehension, write legibly and with meaning, spell, and to accurately perform mathematical calculations, including those involving reading.  The presence of a specific learning disability is indicated by intellectual functioning above that specified in this chapter for eligibility as mentally retarded and by a severe discrepancy between the student's intellectual ability and academic achievement in one or more of the following areas:

(1) Oral expression;

(2) Listening comprehension;

(3) Written expression;

(4) Basic reading skill;

(5) Reading comprehension;

(6) Mathematics calculations; and

(7) Mathematics reasoning.

Such a performance deficit cannot be explained by visual, or hearing, or motor disabilities, mental retardation, behavioral disability, or environmental, cultural, or economic disadvantage.

A specific learning disability includes conditions described as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia, when the student meets the eligibility criteria set forth in WAC 392-172-128, including documentation of severe discrepancy as required by WAC 392-172-132)) that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-126, filed 10/11/95, effective 11/11/95.]

((Evaluation procedures and eligibility standards: All students (except those under the age of entry for first grade) considered for initial placement in special education as specific learning disabled shall be evaluated and determined eligible for special education and related services according to the following:

(1) A current evaluation of sufficient scope to rule out eligibility for any other disabling condition and to rule out environmental, cultural, or economic factors as an explanation for the specific academic problem;

(2) A current vision and hearing screening report shall be obtained and shall be of sufficient scope to rule out vision or hearing acuity as an explanation for the specific academic problem;

(3) A written record of observation of the student's learning behaviors in the general education program and the relationships of these behaviors to the specific academic problem shall be completed by a member of the evaluation team other than the student's general education teacher.  In the case of a student of less than school age or out of school, a team member shall observe the student in an environment appropriate for a student of that age;

(4))) The group may determine that a student has a specific learning disability if:

(1) The student does not achieve commensurate with his or her age and ability levels in one or more of the areas listed in subsection (2) of this section, if provided with learning experiences appropriate for the student's age and ability levels;

(2) The group finds that a student has a severe discrepancy between achievement and intellectual ability in one or more of the following areas:

(a) Oral expression.

(b) Listening comprehension.

(c) Written expression.

(d) Basic reading skill.

(e) Reading comprehension.

(f) Mathematics calculations.

(g) Mathematics reasoning;

(3) The group may not identify a student as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of:

(a) A visual, hearing, or motor impairment;

(b) Mental retardation;

(c) Emotional disturbance; or

(d) Environmental, cultural or economic disadvantage;

(4) At least one group member other than the student's regular teacher shall observe the student's academic performance in the regular classroom setting;

(5) In the case of a student of less than school age or out of school, a group member shall observe the student in an environment appropriate for a student of that age;

(6) Written documentation that the student has an academic achievement problem in the general education program shall be available.  Examples of data used for documentation may include:

(a) Student performance on daily classroom work and/or criterion-referenced tests;

(b) Summary of past student performance;

(c) Group test results;

(d) Teacher observation and judgments; and

(e) Performance on ((student learning objectives)) state established standards;

(((5))) (7) Documentation of the existence of a severe discrepancy between the student's intellectual ability and academic achievement in one or more of the seven areas specified in (( WAC 392-172-126)) this section shall be recorded.  Such documentation shall conform to the requirements of WAC 392-172-132; and

(((6))) (8) Tests used to assess the student's intellectual ability and academic achievement shall be:

(a) ((Current;

(b))) Reliable as demonstrated by a reliability coefficient of .85 or above;

(((c))) (b) Normed on representative national samples;

(((d))) (c) Selected and administered in accordance with the general requirements of WAC 392-172-108; and

(((e))) (d) Individually administered and interpreted by a qualified person (defined in WAC 392-172-108) in accordance with the standardized procedures described in the test manuals.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-128, filed 10/11/95, effective 11/11/95.]

(1) ((For students in grades one and above,)) A severe discrepancy shall be determined and documented from tables developed pursuant to WAC 392-172-130.

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

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

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

(c) A severe discrepancy between the student's intellectual ability and academic achievement in one or more of the seven areas provided for in WAC ((392-172-126)) 392-172-128 shall be determined by applying the regressed standard score discrepancy method to the obtained intellectual ability and achievement test scores using the tables referenced above.  Where the evaluation results do not appear to accurately represent the student's intellectual ability and where the discrepancy between the student's intellectual ability and academic achievement does not initially appear to be severe upon application of the discrepancy tables, WAC 392-172-130, the ((multidisciplinary team)) student's parents and a group of qualified professionals shall apply professional judgment in order to determine the presence of a severe discrepancy.  In this event, the ((multidisciplinary team)) student's parents and a group of qualified professionals shall document in a written narrative an explanation as to why the student has a severe discrepancy.  The ((multidisciplinary team)) student's parents and a group of qualified professionals 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(((8))) shall preclude the use of any of the tests referenced above, the ((multidisciplinary team)) student's parents and a group of qualified professionals shall document ((in a written narrative)) the basis upon which the members decided that there exists a severe discrepancy ((between intellectual ability and achievement)); and

(d) For a student who has been retained, grade as well as age based norms on the achievement test should be applied. A severe discrepancy must exist using both age and grade based norms.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-132, filed 10/11/95, effective 11/11/95.]

Students with mental retardation are those who demonstrate significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, ((which)) that adversely affects their educational performance and requires specially designed instruction.

(((1))) All students being considered for special education and related services as mentally retarded shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(((a) A current evaluation)) (1) An assessment of intellectual functioning obtained from a standardized individual test designed to measure intellectual functioning, individually administered by a qualified psychologist ((and interpreted and attested to as to validity by a qualified psychologist)), which results in a full scale intelligence quotient two or more standard deviations below the mean on the respective measure; and

(((b) A current evaluation)) (2) An assessment which considers and describes adaptive behavior as measured by standardized instrument(s), or professionally recognized scales where there are no known standardized measures, which discusses any implications for educational planning; and

(((c) Current)) (3) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually; and

(((d))) (4) A developmental history compiled directly from the parent(s), or records, when parents are not available.

(((2) Eligibility standards:

(a) Significantly subaverage general intellectual functioning, defined as a full scale intelligence quotient two or more standard deviations below the mean on the respective measure; and

(b) Concurrent deficits in adaptive behavior.))

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-134, filed 10/11/95, effective 11/11/95.]

((A student with multiple disabilities shall be considered eligible for special education services when there are present and documented two or more disabling conditions, each of which is so severe as to warrant a special program were that disabling condition to appear in isolation, and the combination of which causes such severe educational problems that the student requires intensive programming and cannot be accommodated in special education programs solely for one of the impairments.  Students who are deaf/blind are not included in this disability category.)) (1) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.

(2) A student with multiple disabilities shall be considered eligible for special education services when there are present and documented two or more disabling conditions.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-136, filed 10/11/95, effective 11/11/95.]

Students who are deaf are those students who have a documented hearing impairment which is so severe that the student is impaired in processing linguistic information through hearing, with or without amplification, ((which)) that adversely affects educational performance and requires specially designed instruction.

(1) All students being considered for special education and related services as deaf shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(((1) A current evaluation)) (a) An assessment by a qualified audiologist which describes and confirms that the hearing impairment is so severe that the student is impaired in processing linguistic information through hearing, with or without amplification and which prevents the auditory channel from being the primary mode of learning speech and language and adversely affects educational performance;

(((2) Current)) (b) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually; and

(((3) A current evaluation)) (c) An assessment of language development as measured by standardized tests or professionally recognized scales appropriate to age level and administered individually.

(2) Each school district or other public agency shall ensure that the hearing aids worn by students who are deaf are functioning properly.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-138, filed 10/11/95, effective 11/11/95.]

((Students with hearing impairment)) Hearing impaired students are those students who have a hearing impairment, whether permanent or fluctuating, ((which)) that adversely affects the student's educational performance but is not included under the definition of deafness.

(1) All students being considered for special education and related services as students with hearing impairment shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(((1) A current evaluation)) (a) An assessment by a qualified audiologist which describes and confirms that the student:

(((a))) (i) Has an organic hearing loss in excess of 20 dB better ear average in the speech range (500, 1,000, 2,000 Hz), unaided; or

(((b))) (ii) Has a history of fluctuating hearing loss which has interrupted the normal acquisition of speech and language and continues to be a part of educational planning.

(((2) A current)) (b) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually.

(((3) A current evaluation)) (c) An assessment of language development as measured by standardized tests or professionally recognized scales appropriate to age level and administered individually.

(2) Each school district or other public agency shall ensure that the hearing aids worn by students with hearing impairment are functioning properly.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-140, filed 10/11/95, effective 11/11/95.]

Students with visual impairment((/)) including blindness ((are those students who)) have a visual impairment ((which)) that, even with correction, adversely affects the student's educational performance and requires specially designed instruction. The term includes both partial sight and blindness.

All students being considered for special education and related services ((with)) for visual impairment((/)) including blindness shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(1) ((A current)) An evaluation by a qualified vision specialist or physician which describes and confirms that the student:

(a) Has visual acuity of 20/70 or less in the better eye with correction; or

(b) Has a field of vision which at its widest diameter subtends an angle of no greater than twenty degrees in the better eye with correction.

(2) ((Current)) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-142, filed 10/11/95, effective 11/11/95.]

Students who are deaf/blind are those whose hearing and vision impairments, in combination, cause such severe communication and other developmental and educational ((problems)) needs that they cannot be accommodated in special education programs solely for students ((who are deaf or blind)) with deafness or blindness. The impairments adversely affect a student's educational performance and require specially designed instruction.

All students being considered for special education and related services as deaf/((blind)) blindness shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(1) ((A current evaluation)) An assessment by a qualified audiologist and evaluation by a vision specialist or physician which describes and confirms that the ((vision and)) hearing and vision impairments, in combination, cause such severe communication and other developmental and educational problems that the students cannot be accommodated in special education programs solely for students who are deaf or blind;

(2) ((Current)) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually; and

(3) ((A current evaluation)) An assessment of language development as measured by standardized tests or professionally recognized scales appropriate to age level and administered individually.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-144, filed 10/11/95, effective 11/11/95.]

"Autism" means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a student's educational performance and requires specially designed instruction.  If a student manifests characteristics of autism after age three, that student still could be diagnosed as having autism if the criteria in this section are satisfied.

((Students in this category have a range of intellectual abilities.))

Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines and unusual responses to sensory experiences.

The term does not apply if a student's educational performance is adversely affected primarily because the student has ((a serious)) an emotional/behavioral disability, as defined in this chapter.  The category of autism includes students with pervasive developmental disorders if they meet eligibility criteria.

All students being considered for special education and related services under the category of autism shall be ((evaluated and)) determined eligible for special education and related services according to the following:

(1) A developmental history which includes verbal and nonverbal communication, social interaction, play, motor and sensory development;

(2) An adaptive behavior ((evaluation)) assessment which includes:

(a) ((A standardized measure of adaptive behavior;

(b) An evaluation)) An assessment of the student's social skills, including interactions with peers, based on a classroom observation; and

(((c) An evaluation)) (b) An assessment of the student's self-help and community skills based on classroom and/or home observations ((and/or standardized evaluation methods));

(3) A communication ((evaluation)) assessment which includes evaluations of:

(a) Receptive, expressive, and social communication skills;

(b) The possible contributions of the student's communication impairment to challenging behavior, and their implications for educational planning; and

(c) The potential need for augmentative communication methods; and

(4) An ((evaluation)) assessment of preacademic or academic strengths and weaknesses, preferred learning modalities, and present levels of functioning((;

(5) A hearing and vision screening; and

(6) An evaluation of fine and gross motor skills)).

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-146, filed 10/11/95, effective 11/11/95.]

"Traumatic brain injury" means an acquired injury to the brain caused by an external physical force resulting in total or partial functional disability ((and/))or psychosocial impairment or both that((:

(1))) adversely affects educational performance ((which results in the need for special education and related services)) requiring specially designed instruction.  The term applies to open or closed head injuries resulting in impairments in one or more of the following areas such as: Cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech.  The term does not apply to brain injuries that are congenital or degenerative or brain injuries induced by birth trauma.

(((2))) All students being considered for special education and related services under the category of traumatic brain injury shall be evaluated and determined eligible for special education and related services according to the following:

(((a))) (1) A ((current)) medical evaluation by a qualified medical practitioner, which describes an acquired injury to the brain or a history of significant head trauma and which provides any medical implications for educational planning;

(((b) Current)) (2) An academic achievement ((evaluation)) assessment as measured by standardized tests appropriate to age level and administered individually;

(((c) Current evaluation)) (3) An assessment of cognitive functioning, which may include intelligence, memory, attention, reasoning, abstract thought, judgment, problem-solving, and/or information-processing;

(((d) Current evaluation)) (4) An assessment of language and communication skills;

(((e) Current evaluation)) (5) An assessment of fine and gross motor skills.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-148, filed 10/11/95, effective 11/11/95.]

(((1) The parent(s) of a student or the adult student referred for special education and related services or any special education student who is to be evaluated or reevaluated has the right to obtain an independent educational evaluation, subject to subsections (2), (3) and (4) of this section.

(2) When requested by the parent, each school district or other public agency shall provide information about where an independent educational evaluation may be obtained.

(3) For the purposes of this section:

(a) "Independent educational evaluation" means an evaluation conducted by a qualified examiner who is not employed by the school district or other public agency responsible for the education of the student in question; and

(b) "Public expense" means that the school district or other public agency either pays for the full cost of the evaluation or assures that the evaluation is otherwise provided at no cost to the parent (or to the adult student).

(4) A parent or the adult student has the right to an independent educational evaluation at public expense when the parent or the adult student disagrees with the evaluation results obtained by the school district or other public agency, as follows:

(a) The parent(s) or the adult student should provide a written or verbal notice to the school district or other public agency superintendent or special education director which:

(i) Indicates that the parent or the adult student disagrees with the school district and other public agency's evaluation; and

(ii) Requests an independent educational evaluation at public expense;

(b) The school district or other public agency shall have the opportunity to initiate and conduct a hearing pursuant to WAC 392-172-350 et seq. to show that its evaluation is appropriate.  If the school district or other public agency elects to initiate a hearing the school district or other public agency shall provide the parent(s) or the adult student written notice of the decision to initiate a hearing no later than the fifteenth calendar day after the date of receipt of the parent's (or adult student's) notice of disagreement;

(c) If the final decision pursuant to WAC 392-172-350 et seq. is that the school district and other public agency's evaluation is appropriate, the parent or adult student still has the right to an independent educational evaluation, but not at public expense;

(d) If the district or other public agency elects not to hold a hearing or does not receive a favorable decision in the due process hearing, the independent evaluation shall be provided at public expense in accordance with the same criteria which the district or other public agency uses when it initiates an evaluation including, but not limited to, the location of the evaluation and the qualifications of the examiner; and

(e) The school district or other public agency will not deny payment for an independent educational evaluation solely because the parent did not provide prior notification of his or her intent to seek an independent educational evaluation at public expense.

(5) If the parent or adult student obtains an independent educational evaluation at private expense, the results of the evaluation:

(a) Shall be considered by the school district or other public agency and documented in any decision made with respect to the provision of special education and related services to the student; and

(b) May be presented as evidence at such hearings regarding that student as may be conducted pursuant to WAC 392-172-350 et seq.

(6) If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation shall be at public expense.)) (1) The parents of a special education student or a student referred for special education have the right under this chapter to obtain an independent educational evaluation of the student subject to subsections (4) through (11) of this section.

(2) Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in subsections (10) and (11) of this section.

(3) For the purposes of this section:

(a) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student in question; and

(b) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with this chapter.

(4) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.

(5) If a parent requests an independent educational evaluation at public expense, the public agency must, within fifteen days, either:

(a) Initiate a hearing under this chapter to show that its evaluation is appropriate; or

(b) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under this chapter that the evaluation obtained by the parent did not meet agency criteria.

(6) If the public agency initiates a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

(7) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency must either provide the independent educational evaluation at public expense or initiate a due process hearing to defend the public evaluation.

(8) If the parent obtains an independent educational evaluation at private expense, the results of the evaluation:

(a) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the student; and

(b) May be presented as evidence at a hearing under this chapter regarding that student.

(9) If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

(10) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.

(11) Except for the criteria described in subsection (10) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-150, filed 10/11/95, effective 11/11/95.]

The school district or other public agency shall ensure that the IEP team for each special education student includes:

(1) The parents of the student;

(2) At least one regular education teacher of the student (if the student is, or may be participating, in the regular education environment);

(3) At least one special education teacher of the student, or if appropriate, at least one special education provider of the student;

(4) A representative of the school district or public agency who:

(a) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of special education students;

(b) Is knowledgeable about the general curriculum; and

(c) Is knowledgeable about the availability of resources of the school district or other public agency.

(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in subsections (2) through (6) of this section.

(6) At the discretion of the parent or the school district or other public agency, other individuals who have knowledge or special expertise regarding the student, including related services personnel as appropriate;

(7) If appropriate, the student; and

(8) Transition services participants as described in WAC 392-172-166.

The determination of the knowledge or special expertise of any individual described in this section shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP team.

A public agency may designate another public agency member of the IEP team to also serve as the agency representative, if the criteria in this section are satisfied.

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(((1))) A meeting shall be held within thirty calendar days after the date ((upon which a)) student's evaluation is completed (and the student determined to be eligible) for the purpose of developing the student's individualized education program.  Meetings consistent with this section shall be conducted by the school district or other public agency periodically but at least once a year for the purpose of reviewing and revising as necessary each student's individualized education program((.  Meetings may be held more frequently.  The school district or other public agency shall initiate and conduct the meeting and shall include the following participants:

(a) A representative of the school district or other public agency other than the student's teacher who is qualified to provide or supervise the provision of special education services, and authorized to commit district or other public agency resources;

(b) The student's general classroom teacher or special education teacher or therapist.  Either the representative of the school district or other public agency or the teacher or therapist must be knowledgeable in the area of the student's disability;

(c) One or both of the parents (in the case of a nonadult student), subject to subsections (2) through (5) of this section;

(d) The student if he or she is an adult student,(and in the case of nonadult students, the student, if appropriate);

(e) The student, if transition services are being considered;

(f) A member of the student's multidisciplinary team or a person who is knowledgeable about the evaluation procedures used with the student and is familiar with the results of the evaluation;

(g) A person knowledgeable about the service options; and

(h) Other individuals at the discretion of the district or other public agency or the parent or the adult student, including representatives from the general education program in which the multidisciplinary team has recommended the delivery of services.

(2) Each school district or other public agency shall take steps to assure (in the case of nonadult students) that one or both parents of the special education student are present at each meeting or are afforded the opportunity to participate, including:

(a) Notifying the parent(s) of the meeting early enough to assure his or her participation; and

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

(3) 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 the consideration of transition services, the parent(s) will be notified that the student is invited.

(4) If a parent cannot attend, the district or other public agency shall use other methods to assure participation, including individual or conference telephone calls.

(5) If a parent does not attend (in the case of a nonadult student), a meeting may be conducted.  In such a case the school district or other public agency shall make 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.

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

(7) The district or other public agency shall document the parent(s) and other individualized education program participants' presence at the individualized education program meeting.

(8) General education teachers, in whose classes the student is enrolled, shall be invited to, and given the opportunity to participate in, the individualized education program meeting)), to determine whether the annual goals for the student are being achieved. The individualized education program shall be revised, as appropriate, to address: any lack of expected progress toward the annual goals and in the general curriculum if appropriate; the results of any reevaluation conducted; information about the student provided to, or by, the parents; the student's anticipated needs; or other matters.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-156, filed 10/11/95, effective 11/11/95.]

(1) Each school district or other public agency shall take steps to ensure (in the case of nonadult students) that one or both parents of the special education student are present at each meeting or are afforded the opportunity to participate, including:

(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 and inform the parents of the provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the student. If the purpose of the meeting is the consideration of transition needs or services, the provisions in WAC 392-172-164 apply.

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

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

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

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

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

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

(6) The regular education teacher of a special education student, 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).

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(1) Each public agency shall ensure that the parents of each special education student are members of any team that makes decisions on the educational placement of their student.

(2) In implementing the requirements of this section, the public agency shall use procedures consistent with the procedures described in WAC 392-172-15700.

(3) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their student, the public agency shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.

(4) A placement decision may be made by a team without the involvement of the parents, if the public agency is unable to obtain the parents' participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement, including information that is consistent with the requirements of WAC 392-172-15700.

(5) The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any team discussions relating to the educational placement of their student, consistent with WAC 392-172-15700.

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(1) At the beginning of each school year, each public agency shall have in effect an individualized education program for every special education student ((who is receiving special education from that agency)) within its jurisdiction.  An individualized education program must:

(((1))) (a) Be in effect before special education and related services are provided to ((a)) an eligible student; and

(((2))) (b) Be implemented as soon as possible following the meetings under this chapter.

((It is expected that the individualized education program of a special education student will be implemented immediately following the meetings under this chapter.  An exception to this would be when the meetings occur during the summer or a vacation period, or where there are circumstances that require a short delay (e.g., working out transportation arrangements).  However, there can be no undue delay in providing special education and related services to the student.)) (2) The student's IEP shall be accessible to each regular education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation; and

(3) Each teacher and provider described above shall be informed of:

(a) His or her specific responsibilities related to implementing the student's IEP; and

(b) The specific accommodations, modifications, and supports that must be provided for the student in accordance with the IEP.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-158, filed 10/11/95, effective 11/11/95.]

(1) Each student's individualized education program ((shall be developed on the basis of the evaluation and parent input, where it is provided, and shall include:

(a) A statement of the student's present levels of educational performance;

(b) A statement of specific annual goals including short-term instructional objectives which are stated in terms that provide for measurement of progress, expected levels of performance, and the schedules for their accomplishments;

(c) A statement of the specific special education and related services to be provided to the student based upon the individual needs of the student, as determined through the evaluation process, and the extent to which the student will be able to participate in the general educational program, including physical education.  If modifications to the general education program are necessary to ensure the child's participation in that program those modifications must be described.  If the student is unable to participate in the general physical education program, a description of the specially designed physical education to be provided to the student shall be included;

(d) The individualized education program developed for a special education student shall also include a statement of the needed transition services as defined in WAC 392-172-060 including goals and objectives, based on a functional vocational evaluation and anticipated post-school outcome(s) beginning no later than age sixteen and annually thereafter (and when determined appropriate for an individual student, beginning in elementary school or sooner).  The program should include, when appropriate, a statement of the interagency responsibilities or linkages (or both) before the student leaves the school setting.  In the case where a participating agency fails to provide agreed upon services, the educational agency shall reconvene the individualized education program team, as soon as possible, to identify alternative strategies to meet transition objectives, and, if necessary, to revise the individualized education program, as long as the student is eligible for services;

(e) If the individualized education program team determines that services are not needed in one or more of the areas specified in WAC 392-172-060 (2)(a) through (f), the individualized education program must include a statement to that effect and the basis upon which the determination was made;

(f) The projected dates for the initiation of all special education and related services and the anticipated duration of each service including the number of school days, the number of hours per day, and the length of the school year over which such services shall be provided.  In the event the individualized educational program is the first in the district or other public agency for such student and the multidisciplinary team has not made a determination as to the need for an extended school year for such student, the individualized educational program team shall make its recommendation on the length of the school year over which such services shall be provided prior to the conclusion of the regular school year;

(g) Appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short-term instructional objectives are being met; and

(h) Aversive therapy)) shall include:

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

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

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

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

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

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

(c) A statement of the special education and 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)(iii):

(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 regular class and in activities described in this section.

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

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

(ii) How the student will be assessed.

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

(g) A statement of:

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

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

(A) Their student's progress toward the annual goals; and

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

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

(i) For each student beginning at age sixteen (or younger, if determined appropriate by the IEP team), a statement of needed transition services for the student, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.

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

(k) Beginning at least one year before a student reaches the age of majority under state law, 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; and

(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 ((therapy)) interventions.

(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.  ((However,))

(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.  95-21-055 (Order 95-11), § 392-172-160, filed 10/11/95, effective 11/11/95.]

(1) In developing, reviewing and revising each student's individualized education program, the team shall consider:

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

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

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

(2) The individualized education program team also shall:

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

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

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

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

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

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

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

[]

(1) Physical education services, specially designed if necessary, must be made available to every special education student receiving FAPE.

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

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

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

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-162, filed 10/11/95, effective 11/11/95.]

(1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with this section.

(2) Extended school year services must be provided only if a student's IEP team determines, on an individual basis, in accordance with this chapter that the services are necessary for the provision of FAPE to the student.

(3) In implementing the requirements of this section, a public agency may not:

(a) Limit extended school year services to particular categories of disability; or

(b) Unilaterally limit the type, amount, or duration of those services.

(4) As used in this section, the term extended school year services means special education and related services that:

(a) Are provided to a student with a disability:

(i) Beyond the normal school year of the public agency;

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

(iii) At no cost to the parents of the student; and

(b) Meet the standards of the state for provision of special education and related services.

[]

If a purpose of the individualized education program meeting is the consideration of transition services needs or services for a student, the notice required under WAC ((392-172-156)) 392-172-15700 of the individualized education program meeting must also:

(1) ((Indicate this purpose;

(2) Indicate that the district or other public agency will invite the student; and

(3) Identify any other agency that will be invited to send a representative.)) For a special education student beginning at age fourteen, or younger, if appropriate:

(a) Indicate that a purpose of the meeting will be the development of a statement of the transition services needs of the student; and

(b) Indicate that the agency will invite the student.

(2) For a special education student beginning at age sixteen, or younger, if appropriate:

(a) Indicate that a purpose of the meeting is the consideration of needed transition services for the student;

(b) Indicate that the agency will invite the student; and

(c) Identify any other agency that will be invited to send a representative.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-164, filed 10/11/95, effective 11/11/95.]

((If a purpose of the individualized education program meeting is the consideration of transition services for a student, the district or other public agency shall also invite:

The student; and

A representative of any other agency that is likely to be responsible for providing or paying for transition services.

If the student does not attend, the district or other public agency shall take other steps to ensure that the student's preferences, and aptitudes and interests are considered; and

If an agency invited to send a representative to an individualized education program meeting does not do so, the district or other public agency shall take other steps to obtain the participation of the other agency in the planning of any transition services.)) (1) The public agency shall invite a special education student of any age to attend his or her IEP meeting if a purpose of the meeting will be the consideration of:

(a) The student's transition services needs;

(b) The needed transition services for the student; or

(c) Both.

(2) If the student does not attend the IEP meeting, the public agency shall take other steps to ensure that the student's preferences and interests are considered.

(3) In implementing the requirements of this section, the public agency also shall invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.

(4) If an agency invited to send a representative to a meeting does not do so, the public agency shall take other steps to obtain participation of the other agency in the planning of any transition services.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-166, filed 10/11/95, effective 11/11/95.]

(1) The written consent of the parent(s) or adult student shall be requested and obtained before initial special education and related services are provided.

(2) Each school district or other public agency shall provide written notice of initial special education services to be provided to the student, or of the school district or other public agency and other public agency's inability or refusal to make special education and related services available, at the initial meeting or within ten calendar days after the initial meeting provided for in WAC 392-172-156.  The notice shall comply with the notice requirements of WAC ((392-172-306)) 392-172-302.  ((Students admitted to state residential schools shall be enrolled in an educational program within ten school days of admission.))

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

(a) Written consent has been given by the parent(s) or the adult student; 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., or mediated, if appropriate.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-170, filed 10/11/95, effective 11/11/95.]

((The state shall ensure that)) Each public agency ((establishes)) shall establish and implement((s)) procedures which meet the least restrictive environment requirements of this chapter((, and that the various alternative service delivery options included under this chapter are available to the extent necessary to implement the individualized education program for each student eligible for and in need of special education)).  The provision of services to each special education student, including students in public or private institutions or other care facilities, shall be ((in his or her least restrictive environment as follows:

(1) Educational setting--Each special education student shall be provided services:

(a) In the general educational environment with students who are not disabled to the maximum extent appropriate to his or her needs.  Special classes, separate schooling or other removal from the general education environment cannot occur unless it is demonstrated by the school district or other public agency that the nature or severity of the student's disability is such that his or her education in general classes with the use of supplementary aids and services cannot be achieved satisfactorily; and

(b) In the school which he or she would attend if not receiving special education and related services, unless his or her individualized education program requires some other arrangement.  If some other arrangement is required, the student shall be provided services in the appropriate educational program that is as close to the student's home as possible.

(2))) provided:

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

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

(3) Nonacademic settings--Each special education student shall be provided nonacademic and extracurricular services and activities conducted by the school district or other public agency with students who are not disabled to the maximum extent appropriate to the needs of the student.  Nonacademic and extracurricular services and activities may also include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the district or other public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the district or other public agency and assistance in making outside employment available.  Each school district or public agency shall take steps to ensure that its special education students have available to them the variety of educational programs and services available to nonspecial education students in the area served by the school district or public agency, including art, music, industrial arts, consumer and homemaking education, and vocational education.

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

((A continuum of alternative service delivery options shall be made available as necessary to meet the needs of special education students including special education and related services in: General classes, special classes, special schools, home, hospitals, institutions, and instruction in other settings, and shall provide for supplementary services in conjunction with the general education classroom.

Specially designed instruction shall be provided as follows:

(1) Provided directly by certificated special education personnel or by general certificated teachers and/or classified instructional staff who are under the direct supervision of the general certificated teacher.  For the purposes of this section, direct supervision includes observation of classified instructional staff at least weekly, during the time they are providing direct services to the student.  Direct supervision of classified instructional staff providing related services, including services at off-site locations, shall occur at least monthly.

(2) Provided directly by certificated special education personnel or by classified instructional staff who are under the direct supervision of the certificated special education personnel including classified instructional staff who are performing individual or small group (six students or less) instructional and/or training activities pursuant to specific directives provided by the certificated special education personnel.

If the specially designed instruction is not delivered directly by certified special education personnel, it must be designed, monitored, and evaluated by certificated special education personnel pursuant to a written plan which shall include at least a monthly evaluation of student progress toward specific written individualized education program objectives.)) (1) Each public agency shall ensure that a continuum of alternative placements is available to meet the needs of special education students for special education and related services.

(2) The continuum required in this section must:

(a) Include the alternative placements listed in the definition of special education under this chapter such as instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-174, filed 10/11/95, effective 11/11/95.]

((Each local school district or other public agency shall develop policies and procedures for the transition of children participating in the early intervention program under Part H of the Individuals with Disabilities Education Act who are eligible for participation in preschool programs under Part B of the Individuals with Disabilities Education Act.

If the child will participate in the school district and other public agency's preschool program under Part B of Individuals with Disabilities Education Act at age three, an individual education program consistent with this chapter must be developed and implemented by the child's third birthday.  The district or other public agency must provide the family with information on the eligibility and evaluation requirements under Part B of the Individuals with Disabilities Education Act, including the parent's and school district and other public agency's rights regarding procedural safeguards.

Each school district and other public agency's policies and procedures must include procedures for:

(1) Notifying the agency in which the child is being served, and the family of the need for transitional planning;

(2) Describing how the families will be included in the transitional plans;

(3) Convening, with the approval of the family, a transition conference with the agency, family, and district or other public agency, at least ninety days before the child is eligible for the preschool program under Part B of Individuals with Disabilities Education Act for the purpose of reviewing a child's program options for the remainder of the school year, and establishing a transition plan.)) Each school district or other public agency shall have policies and procedures for transition to preschool programs to ensure that:

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

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

(3) By the third birthday of a student described in subsection (1) of this section, an IEP has been developed and is being implemented for the student consistent with WAC 392-172-030(1).

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-176, filed 10/11/95, effective 11/11/95.]

(1) The educational setting (placement) for each special education student, including a preschool student, shall be determined at least annually at a meeting conducted pursuant to WAC 392-172-156.

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

(a) The student's individualized education program;

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

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

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

(3) ((In interpreting data gathered through the evaluation process in this chapter and in making placement decisions, each public agency shall:

(a) Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, parental input, physical condition, social and cultural background, and adaptive behavior;

(b) Ensure that information obtained from all of these sources is documented and carefully considered; and

(c) Ensure that the placement decision is made in conformity with the least restrictive environment rules in this chapter.)) 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.

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-180, filed 10/11/95, effective 11/11/95.]

((Each special education student shall be reevaluated by the multidisciplinary team in accordance with the evaluation procedures specified in WAC 392-172-100 through 392-172-152, as follows:

(1) At a minimum, once every three years or more frequently if conditions warrant.

(2) Upon request of the student's parent or adult student, teacher, or individualized education program team.)) Each public agency shall ensure:

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-182, filed 10/11/95, effective 11/11/95.]

A reasonable time prior to conducting the reevaluation, the district or other public agency shall provide written notice to parents or adult student consistent with WAC 392-172-302.  ((The notice shall include the procedural safeguard requirements provided in WAC 392-172-306.  The parents or adult student have the right to submit to the multidisciplinary team any information they deem important to the reevaluation.))

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-184, filed 10/11/95, effective 11/11/95.]

(1) Informed parental consent for reevaluation shall be obtained consistent with the provisions in WAC 392-172-304.

(2) Parental consent is not required before reviewing existing data as part of a reevaluation, or administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students.

(3) Informed parental consent need not be obtained for reevaluation if the school district or other public agency can demonstrate that it has taken reasonable measures to obtain that consent, and the student's parent has failed to respond.

(4) To meet the reasonable measures requirement in this section, the public agency must use procedures consistent with those in WAC 392-172-15700 (3) and (4).

(5) A reevaluation shall be conducted consistent with the timelines in WAC 392-172-104(2) and WAC 392-172-182(2).

[]

((The purposes of reevaluation are to determine the following:

(1) If the student is appropriately identified as disabled and in need of special education and related services; and

(2) If the program designed for the student is appropriate to meet the student's unique needs.)) (1) As part of any reevaluation, a group that includes the individuals described in WAC 392-172-153, and other qualified professionals, as appropriate, shall review existing evaluation data on the student, including:

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

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

(c) Observations by teachers and related services providers.

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

(a) Whether the student continues to be a special education student and continues to need special education and 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 related services are needed to enable the student to meet the measurable annual goals set out in the student's individualized education program and to participate, as appropriate, in the general curriculum.

(3) The group described in subsection (1) of this section may conduct its review without a meeting.

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

(5) The evaluation described in subsection (4) of this section is not required before the termination of a student's eligibility under Part B of the IDEA due to graduation with a regular high school diploma, or exceeding the age eligibility for FAPE under state law.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-186, filed 10/11/95, effective 11/11/95.]

((The multidisciplinary team)) A group that includes the individuals required under WAC 392-172-153 and other qualified professionals, as appropriate, shall determine if additional evaluation procedures are necessary to confirm the decisions to be made in WAC 392-172-186((.

In making the determination, members of the multidisciplinary team shall be governed by the generally recognized professional practice standards of their respective disciplines.  The multidisciplinary team shall document in a written narrative the basis for the determination including any relevant data or evaluation procedures utilized)), consistent with WAC 392-172-107 through 392-172-109.

If no additional data are needed to determine whether the student continues to be a student with a disability, the school district or other public agency shall notify the student's parents:

(1) Of that determination and the reasons for it; and

(2) Of the right of the parents to request an assessment to determine, for purposes of services under this chapter, the continuing eligibility of the student.

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-188, filed 10/11/95, effective 11/11/95.]

Within ten calendar days of the completion of the reevaluation, the district or other public agency superintendent or designee shall notify the parent or adult student, pursuant to WAC ((392-172-306)) 392-172-302, of one or more of the following decisions:

(1) ((That)) Whether the student ((is)) continues to be eligible and in need of special education;

(2) ((That the individualized education program designed for the student is appropriate to the student's unique needs)) The present levels of performance and educational needs of the student; and

(3) Whether any additions or modifications to the special education and 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 ((inappropriate)) no longer appropriate, an individualized education program team meeting shall be convened in accordance with WAC ((392-172-156 through 392-172-168.  When special education and related services are to be discontinued, notice shall be given the parent(s) pursuant to WAC 392-172-302)) 392-172-153 through 392-172-166.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-190, filed 10/11/95, effective 11/11/95.]

All employees of a school district or other public agency funded in whole or part with state or federal special education excess cost funds shall be qualified as follows (((except as provided for in subsection (4) of this section))):

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

Pursuant to WAC 180-82-110, 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. Application for the special education or early childhood special education preendorsement waiver shall be made to special education section at the office of superintendent of public instruction.

(2) In addition to the requirement of subsection (1) of this section, all teachers shall possess "substantial professional training" and support personnel shall meet standards established under the educational staff associate rules of the state board of education, as now or hereafter amended.  A teacher of special education must hold a valid general teaching certificate for the appropriate level(s).  The school district or other public agency is responsible for determining whether or not the teacher has adequate preparation to provide special education services.  "Substantial professional training" as used in this section shall mean and be evidenced by either an appropriate special education endorsement or recommended placement upon the teaching certificate of an employee issued by the superintendent of public instruction.  If the teacher does not have a certificate endorsed in special education, the teacher of special education must hold a valid general teaching certificate for the appropriate level(s), and the school district or other public agency is responsible for determining whether or not the teacher has adequate preparation in special education to teach such classes.  Course work focused on the essential areas of study and credits required for endorsement by the state board of education in the area of special education are required.

(3) After August 31, 2000, employees with early childhood special education endorsement shall be assigned only to programs that serve students birth through age eight. Preference for early childhood special education assignment must always be given first to employees having early childhood special education endorsement.

(4) 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.

(5) Classified staff shall present evidence of ((either formal and/or adequate in-service training or successful experience in working with special education students.  The office of superintendent of public instruction, through the special education comprehensive system of personnel development, shall identify the minimum competencies classified staff must possess and develop in-service training strategies to meet staff needs)) skills and knowledge necessary to meet the needs of students with disabilities.

(((4))) (6) General education classroom personnel providing specially designed instruction pursuant to a properly formulated individual education program may be paid from state 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.  95-21-055 (Order 95-11), § 392-172-200, filed 10/11/95, effective 11/11/95.]

In order to temporarily assign a nonspecial education endorsed classroom teacher to a special education position, the district or other public agency must ((comply with)) keep written documentation on the following:

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

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

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

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

(2) ((The teacher assigned to the special education position must meet the following requirements:

(a) The teacher so assigned must have at least two full school years of classroom teaching experience and must not have been placed on probation pursuant to RCW 28A.405.100 during the last two school years.

(b) The teacher so assigned must have completed six semester hours or nine quarter hours of course work which are applicable to an endorsement in the out-of-endorsement grade level or subject area.

(3) The district or other public agency shall comply with the following condition:

Prior to the assignment, or as soon as reasonably practicable thereafter, but in no event beyond twenty school days after the commencement of the assignment, a designated representative of the district or other public agency and the classroom teacher so assigned shall mutually develop a written plan which provides necessary assistance to the teacher so assigned and which provides for a reasonable amount of planning and study time associated specifically with the assignment.

(4) The district or other public agency shall submit to the office of superintendent of public instruction as part of its annual report required by WAC 180-16-195, a list which indicates all such assignments.  Such list shall include:

(a) The name and certification number of each teacher so assigned, the grade levels or subject areas and the number of such periods taught by such teacher, and the dates upon which such assignment(s) commenced and concluded.

(b) The reason for each such assignment.

(c) The reason why the particular teacher was selected for the out-of-endorsement grade level or subject area.

(d) A dated copy of each plan of assistance required pursuant to subsection (3) of this section.  Such copy shall not contain any personal information the disclosure of which would violate the named teacher's right to privacy pursuant to RCW 42.17.310 (1)(b).

(5) The district or other public agency adopts a resolution for each proposed out-of-endorsement assignment which states that the district or other public agency has made good faith efforts to comply with the provision(s) for which it is requesting a waiver.  Such resolution must recite the actions that the school district or other public agency has taken to comply.  Upon adoption and transmission of such resolution to the superintendent of public instruction, the district or other public agency shall be authorized to assign each such classroom teacher affected to the proposed out-of-endorsement assignment.

(6))) 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, prior to August 31, 2000, six semester hours or nine quarter hours of course work, after September 1, 2000, sixteen semester hours or twenty-four quarter hours of course work, which are applicable to an endorsement in the out-of-endorsement grade level or subject area. The teacher assigned to special education must meet the following requirements. If teachers are so assigned the following shall 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.  95-21-055 (Order 95-11), § 392-172-202, filed 10/11/95, effective 11/11/95.]

The provisions of WAC 392-172-220 through 392-172-226 apply only to special education students who are, or have been placed, in, or referred to a nonpublic or public school agency by a school district as a means of providing special education and related services.

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(((1))) School districts((, severally or jointly,)) shall be authorized to:

(((a))) (1) Enter into interdistrict agreements with another school district(s) ((pursuant to RCW 28A.335.160, 28A.225.250, 28A.225.260, and WAC 392-135; and

(b))) or other public agencies; or

(2) Contract with nonpublic and public ((school)) 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 ((or another school district.

(2) In the case of a cooperative delivery of services by a school district to a special education student at a center for the furtherance of research and training in disabling conditions as established pursuant to RCW 28B.20.410 through 28B.20.414, as now or hereafter amended, or other such centers as may be established at other public institutions of higher education, as defined in RCW 28B.10.016, the school districts and other public agencies shall establish that the parent(s) or adult student has:

(a) Given written approval for delivery of services to the student at such center despite the existence of an appropriate education for the student within the district or another school district; and

(b) Has agreed that such delivery of services would equal or substantially equal the services available in the school district)).

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-220, filed 10/11/95, effective 11/11/95.]

(1) A school district or other public agency shall ((neither provide a student with services in a nonpublic or public school agency nor award a contract to a nonpublic or public school agency until the nonpublic or public school agency has been approved by the state board of education.  Approval of such agencies shall be made in accordance with the following procedures:

(1))) obtain the approval of the state board of education before awarding a contract to a nonpublic agency to provide special education services;

(2) The school district or other public agency shall ((establish that all requirements imposed by this chapter for contracting with a nonpublic or public school agency can be met and shall forward the nonpublic or public school agency's application to the superintendent of public instruction or designee;

(2))) notify the office of superintendent of public instruction, in writing, of their intent to enroll a student and/or contract with a nonpublic agency;

(3) The office of superintendent of public instruction shall provide the agency named with the procedures/application for nonpublic agency approval, which shall consist of description of agency and services provided, assurances, personnel record, and fire and health inspection forms;

(4) Upon review of the completed application and an on-site visitation the superintendent of public instruction or designee shall recommend approval or disapproval of the agency to the state board of education; and

(((3))) (5) The superintendent of public instruction or designee shall ((notify the requesting school district or other public agency and nonpublic or public school agency of approval or disapproval)) make information regarding currently approved nonpublic agencies available to all school districts.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-222, filed 10/11/95, effective 11/11/95.]

Any school district or other public agency contracting with ((an)) a public or approved nonpublic ((or public school)) agency for special education and((/or)) related services ((on behalf of a special education student)) shall:

(1) Initiate and conduct a meeting with appropriate personnel and the student's parent(s) to develop the student's individualized education program.  The district or other public agency shall assure that a representative of the approved nonpublic or public ((school)) agency attends the meeting or in some other way assure participation ((by the nonpublic school agency)).  Meetings to review or revise the student's individualized education program after the student has been placed shall be initiated and conducted by the approved nonpublic or public ((school)) 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 ((school)) 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 ((necessarily)) be limited to, the following elements:

(a) Names of the parties involved;

(b) The name(s) of the special education student(s) ((with disabilities)) 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 ((coordinator of the services to be provided by the school district or other public agency and the contractor;

(f) Assurance of compliance with staff certification requirements;

(g) Periodic student report requirements;

(h) Annual program monitoring procedures and requirements;

(i) Starting date and duration of contract;

(j) Program day and description of student's program;

(k))) responsible parties;

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

(((l))) (g) Total contract cost;

(((m) Contract review;

(n) Disposition of materials and equipment upon termination;

(o))) (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

(((p) Contractor's policies and procedures covering:

(i) Nondiscrimination;

(ii) Care of student(s) in emergencies;

(iii) Fire drills;

(iv) Personnel policies;

(v) Staff duties; and

(vi) Board of directors' duties and functions;

(q))) (i) Other contractual elements that may be necessary to assure compliance with state and federal rules((; and

(r) Signatures of authorized school and contractor officials)).

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-224, filed 10/11/95, effective 11/11/95.]

(1) If the delivery of services in a public or private residential educational program is necessary to provide special education and related services to a special education student, the program, including nonmedical care and room and board, must be at no cost to the parents of the student.  ((Nothing in this chapter relieves an insurer or similar third party (public or private) from an otherwise valid obligation to provide or to pay for services provided to a special education student.  Nothing is this chapter relieves any participating agency of the responsibility to provide or pay for any service that the agency would otherwise provide to any special education student who meets the eligibility criteria of that agency.)) Nothing in this chapter limits the responsibility of agencies other than educational agencies for providing or paying some or all of the costs of a free appropriate public education to special education students in the state.

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-226, filed 10/11/95, effective 11/11/95.]

If a special education student has a free appropriate public education available and the parents choose to place the student in a private school or facility, the public agency is not required by this chapter to pay for the student's education, including special education and related services, at the private school or facility.  However, the public agency shall ((make services available to the student as provided in)) include that student in the population whose needs are addressed consistent with WAC 392-172-232 through 392-172-248.

Disagreements between a parent and a public agency regarding the availability of a program appropriate for the student, and the question of financial responsibility, are subject to the due process procedures of this chapter.  Disagreements may also be resolved through the mediation process described in this chapter.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-230, filed 10/11/95, effective 11/11/95.]

(1) If the parents of a special education student, who previously received special education and related services under the authority of a school district or other public agency, enroll the student in a private preschool, elementary or secondary school without the consent of or referral by a school district or other public agency, a court or a hearing officer may require a school district or other public agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that a school district or other public agency had not made a free appropriate public education available to the student in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the state standards that apply to education provided by a school district or other public agency.

(2) The cost of reimbursement may be reduced or denied if:

(a) At the most recent individualized education program meeting that the parents attended prior to removal of the student from the public school, the parents did not inform the team that they were rejecting the placement proposed by a school district or other public agency to provide a free appropriate public education to their student, including stating their concerns and their intent to enroll their student in a private school at public expense; or

(b) At least ten business days (including any holidays that occur on a business day) prior to the removal of the student from the public school, the parents did not give written notice to a school district or other public agency of the information described in (a) of this subsection; or

(c) If, prior to the parents' removal of the student from the public school, a school district or other public agency informed the parents, through the notice requirements described in this chapter, of its intent to evaluate the student (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the student available for the evaluation; or

(d) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(3) Notwithstanding the notice requirement in subsection (2)(a) and (b) of this section, the cost of reimbursement may not be reduced or denied for failure to provide the notice if:

(a) The parent is illiterate and cannot write in English;

(b) Compliance with the notice requirements of this section would likely result in physical or serious emotional harm to the student;

(c) The school district or other public agency prevented the parent from providing the notice; or

(d) The parent had not received notice of the requirement to notify a school district or other public agency of the information required in subsection (2)(a) and (b) of this section.

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For the purpose of WAC ((392-172-234)) 392-172-23300 through 392-172-248 "private school special education student(s) ((with disabilities))" means resident special education students enrolled in private schools or agencies and whose enrollment is not the result of a contractual arrangement between a public school district or other public agency and the private school or agency.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-232, filed 10/11/95, effective 11/11/95.]

(1) Each school district or other public agency shall:

(a) Consult with representatives of private school students in deciding how to conduct the annual count of the number of private school special education students; and

(b) Ensure that the count is conducted on December 1 of each year.

(2) The child count must be used to determine the amount that the school district or other public agency must spend on providing special education and related services to private school special education students in the next subsequent fiscal year.

(3) Expenditures for childfind activities described in WAC 392-172-100 may not be considered in determining whether the school district or other public agency has met the requirements of WAC 392-172-23305.

(4) State and local educational agencies are not prohibited from providing services to private school special education students in excess of those required by this section consistent with state law or local policy.

[]

Each school district or public agency shall spend a proportionate amount of federal funds on providing special education and related services to private school special education students as follows:

(1) For students aged three through twenty-one, an amount that is the same proportion of the school district's or other public agency's total subgrant under Part B of the Individuals with Disabilities Education Act as the number of private school special education students aged three through twenty-one residing in its jurisdiction is to the total number of special education students in its jurisdiction aged three through twenty-one; and

(2) For students aged three through five, an amount that is the same proportion of the school district's or other public agency's total subgrant under the school district's or other agency's preschool grant under section 619 of the Individuals with Disabilities Education Act as the number of private school special education students aged three through five residing in its jurisdiction is to the total number of special education students in its jurisdiction aged three through five.

[]

(1) No private school special education student has an individual right to receive some or all of the special education and related services that the student would receive if enrolled in a public school. Decisions about the services that will be provided to private school special education students under WAC 392-172-232 through 392-172-248 must be made in accordance with this section.

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

(a) Which students will receive services;

(b) What services will be provided;

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

(d) How the services provided will be evaluated.

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

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

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

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

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

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

[]

(1) The services provided to private school special education students must be provided by personnel meeting the same standards as personnel providing services in the public schools.

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

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

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

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

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

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

[]

(1) Services provided to private school special education students may be provided on-site at a student's private school, consistent with WAC 392-172-238.

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

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

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

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

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

[]

(1) The procedures under WAC 392-172-350 et seq., do not apply to complaints that a school district or other public agency has failed to meet the requirements of WAC 392-172-232 through 392-172-248, including the provision of services indicated on the student's individualized education program.

(2) The procedures under WAC 392-172-350 et seq. do apply to complaints that a school district or other public agency has failed to meet the requirements under childfind, 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.

[]

(1) School district or other public agency personnel may be made available to nonsectarian private schools and agencies only to the extent necessary to provide services required by the special education student if those services are not normally provided by the private school.

(2) Each school district or other public agency providing services to students enrolled in nonsectarian private schools or agencies shall maintain continuing administrative control and direction over those services.

(3) Services to private school special education students shall not include the payment of salaries of teachers or other employees of private schools or agencies, except for services performed outside regular hours of the school day and under public supervision and control.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-240, filed 10/11/95, effective 11/11/95.]

(1) Equipment and supplies used with special education students in a private school or agency may be placed on nonsectarian private school or agency premises for the period of time necessary for the program, but title to and administrative control over all equipment property and supplies must be retained and exercised by the school district or other public agency.

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

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

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-242, filed 10/11/95, effective 11/11/95.]

Public funds provided and property derived from those funds shall not benefit any private school or agency.

A school district shall use funds provided under Part B of the IDEA to meet the special education and related services needs of special education students enrolled in private schools, but not for:

(1) The needs of a private school; or

(2) The general needs of the students enrolled in the private school.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-246, filed 10/11/95, effective 11/11/95.]

((The state shall ensure that)) Each school district ((or)) and public agency ((establishes and)) shall establish, implement((s)) and maintain procedural safeguards that meet the requirements of 34 CFR ((300.500-300.515)) 300.500-300.529.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-300, filed 10/11/95, effective 11/11/95.]

Written notice in accordance with WAC 392-172-306 shall be given by a school district or other public agency to the parent(s) of a student (or to the adult student) a reasonable time before the school district or other public agency:

(1) Proposes to initiate or change:

(a) The identification, evaluation, or delivery of educational services to the student;

(b) The individualized education program, including annual goals and short term instructional objectives or benchmarks or the provision of special education and related services to the student pursuant to this chapter; or

(2) Refuses to initiate or change:

(a) The identification, evaluation, or delivery of special education and related services to the student; or

(b) The individualized education program or the provision of special education and related services to the student pursuant to this chapter.

(3) If the notice required under this section relates to an action proposed by a district or other public agency that also requires parental consent under WAC 392-172-185 and 392-172-304, notice may be given at the same time parental consent is being requested.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-302, filed 10/11/95, effective 11/11/95.]

(1) Informed parental consent must be obtained in writing (or denial of consent overridden by a due process hearing or mediated if appropriate) before:

(((1))) (a) Conducting an initial evaluation or reevaluation consistent with WAC 392-172-185; and

(((2))) (b) Providing initial special education and related services to a special education student.

((A school district or other public agency shall not require written parental consent as a condition for receiving any other benefit, service, or activity to the parent or to the student.)) (2) Consent for initial evaluation may not be construed as consent for initial placement described in this section.

(3) Parental consent is not required before:

(a) Reviewing existing data as part of an evaluation or reevaluation; or

(b) Administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students.

(4) A public agency may not use a parent's refusal to consent to one service or activity under this section to deny the parent or child any other service, benefit, or activity of the public agency, except as required by this chapter.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-304, filed 10/11/95, effective 11/11/95.]

(1) The notice required by WAC 392-172-302 shall include:

(a) ((A full explanation of all of the procedural safeguards available to the parent or the adult student that are set forth in 34 CFR 300.500, 300.502 through 300.515, and 300.562 through 300.569, including the availability of mediation as a dispute resolution process;)) A statement that the parents of a special education student have protection under the procedural safeguards of Part B of the Individuals with Disabilities Education Act and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(b) A description of the action proposed or refused by the school district or other public agency, an explanation of why the district or other public agency proposes or refuses to take the action, and a description of any other options the district or other public agency considered and the reasons why those options were rejected;

(c) A description of each evaluation procedure, test, record, or report the district or other public agency used as a basis for the proposal or refusal; ((and))

(d) A description of any other factors which are relevant to the school district and other public agency's proposal or refusal;

(e) A description of any evaluation procedures the school district or other public agency proposes to conduct; and

(f) Sources for parents to contact to obtain assistance in understanding the procedural safeguards provision of Part B of the Individuals with Disabilities Education Act.

(2) The notice shall be:

(a) Written in language understandable to the general public; and

(b) Provided in the native language of the parent or adult student or other mode of communication used by the parent or adult student, unless it is clearly not feasible to do so.

(3) If the native language or other mode of communication of the parent or adult student is not a written language, the district or other public agency shall take steps to assure that:

(a) The notice is translated orally or by other means to the parent or adult student in his or her native language or other mode of communication;

(b) The parent or adult student understands the content of the notice; and

(c) There is written evidence that the requirements in (a) and (b) of this subsection have been met.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-306, filed 10/11/95, effective 11/11/95.]

(1) A copy of the procedural safeguards available to the parents of a special education student shall be given to the parents, at a minimum:

(a) Upon initial referral for evaluation;

(b) Upon each notification of an individualized education program meeting;

(c) Upon reevaluation of the student;

(d) Upon receipt of a request for due process; and

(e) Upon notification of a parent that a school district or other public agency intends to take disciplinary action that constitutes a change of placement.

(2) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under Part B of the Individuals with Disabilities Education Act. Available procedural safeguards include:

(a) Independent educational evaluation;

(b) Prior written notice;

(c) Parental consent;

(d) Access to educational records;

(e) Opportunity to present complaints to initiate due process hearings;

(f) The student's placement during pendency of due process proceedings;

(g) Procedures for students who are subject to placement in an interim alternative educational setting;

(h) Requirements for unilateral placement by parents of students in private schools at public expense;

(i) Mediation;

(j) Due process hearings, including requirements for disclosure of evaluation results and recommendations;

(k) Civil actions;

(l) Attorneys' fees; and

(m) State complaint procedures, including a description of how to file a complaint and the timelines under those procedures.

(3) The notice shall meet the requirements of WAC 392-172-306 (2) and (3).

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(1) Each school district or other public agency providing a special education program to a nonadult special education student shall assure that the rights of the nonadult student are protected when:

(a) No parent (as defined in WAC 392-172-035(5)) can be identified;

(b) The school district or other public agency, after reasonable efforts, cannot discover the whereabouts of a parent; or

(c) The student is a ward of the state. A student is a ward of the state if (i) parental rights have been terminated and no guardian has been appointed or (ii) the student is found dependent under RCW 13.34 and is not placed with the parent or with relatives.

(2) ((Duty of school district or other public agency.))  The duty of a school district or other public agency under this section includes the assignment of a person to act as a surrogate for the parents.  This duty includes the establishment of a method:

(a) For determining whether a nonadult student needs a surrogate parent; and

(b) For assigning a surrogate parent to the student.

(3) Criteria for selection of surrogates.  Each school district or other public agency shall assure that a person selected as a surrogate:

(a) Has no interest that conflicts with the interests of the student he or she represents; and

(b) Has knowledge and skills that assure adequate representation of the student.

(4) Nonemployee requirement--Compensation:

(a) A person assigned as a surrogate may not be an employee of the office of superintendent of public instruction, a school district and/or other agency which is involved in the education or care of the student; and

(b) A person who otherwise qualifies as a surrogate parent pursuant to this section is not an "employee" of the school district ((and/)) or other agency solely because he or she is paid by the school district and/or agency to serve as a surrogate parent.

(5) Responsibilities.  A surrogate parent may represent the student in all matters relating to:

(a) The identification, evaluation, and the delivery of educational services to the student; and

(b) The provision of free special education and related services to the student.

(6) A public agency may select as a surrogate a person who is an employee of a nonpublic agency that only provides noneducational care for the student and who meets the standards in subsection (3) of this section.

(7) A foster parent may be appointed as a surrogate parent if he or she meets the qualifications of subsection (3) of this section and is willing to make educational decisions on behalf of the student.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-308, filed 10/11/95, effective 11/11/95.]

(1) Consistent with RCW 25.28.010 when a special education student reaches the age of eighteen, unless declared incapacitated as to person under RCW 11.88, the following shall occur:

(a) A school district or other public agency shall provide any notice required under the chapter to both the student and the parents; and

(b) All other rights accorded to parents under Part B of the Individuals with Disabilities Education Act transfer to the student.

(2) All rights accorded to parents under Part B of the Individuals with Disabilities Education Act transfer to students at the age of majority who are incarcerated in an adult or juvenile, state, or local correctional institution.

(3) Whenever a school district or other public agency transfers rights under this section, they shall notify the individual and the parents of the transfer of rights.

[]

The purpose of mediation is to offer both the parent and the school district or other public agency an optional alternative to a formal due process hearing.  Mediation requires the consent and agreement of both parties.  Mediation cannot be used to deny or delay access by a parent to a due process hearing under this chapter, or to deny any other rights afforded under Part B of the Individuals with Disabilities Education Act.  Mediation is used to resolve disagreements concerning the identification, evaluation, delivery of educational services or provision of a free appropriate public education to a special education student.  Mediation may be terminated by either party at any time during the process. Mediation shall be available whenever a hearing is requested under this chapter.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-310, filed 10/11/95, effective 11/11/95.]

Mediation is a dispute resolution process in which an impartial mediator assists both parties in reaching a mutually acceptable agreement on the educational needs of a special education student.  The ((primary)) participants in the mediation process are the parent(s), school district or other public agency representative(s), and mediator.  The process is voluntary, confidential, and informal.  It is a collaborative process, conducted in a nonadversarial manner.  Mediation services ((may be)) are provided by the office of superintendent of public instruction at no cost to either party, including the costs of meetings described in WAC 392-172-317.  The office of superintendent of public instruction will ((attempt to)) provide mediation services for individuals whose primary language is not English unless clearly not feasible to do so. Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-312, filed 10/11/95, effective 11/11/95.]

(1) Mediation is conducted by qualified and impartial mediators who are trained in effective mediation techniques.

(2) The office of superintendent of public instruction shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.

(3) An individual who serves as a mediator:

(a) May not be an employee of:

(i) Any school district or any state agency described under WAC 392-172-035(5); or

(ii) A state education agency that is providing direct services to a student who is the subject of the mediation process; and

(b) Shall not have a personal or professional conflict of interest.

(4) A person who otherwise qualifies as a mediator is not an employee of a school district or other public agency solely because he or she is paid by the agency to serve as a mediator.

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(1) To access the system of mediation established by the office of superintendent of public instruction, a request for mediation services may be made in writing or verbally to administrative agents for the office of superintendent of public instruction located statewide.  Written confirmation of the request shall be provided to both parties by an intake coordinator and a mediator shall be assigned to the case.

(2) If a mediator is not selected on a random (e.g., a rotation) basis from the list described in WAC 392-172-313, both parties must be involved in selecting the mediator and agree with the selection of the individual who will mediate.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-314, filed 10/11/95, effective 11/11/95.]

(1) Agreements reached through the mediation process shall be documented in writing and signed by both parties.  Solutions to the issue(s) raised through the mediation process shall not be in conflict with state and federal laws or regulations.  ((Both)) The parties shall be given a copy of the written mediation agreement.  ((Negotiations, mediation positions, etc., disclosed in a mediation shall not be used as evidence in a due process hearing or other administrative review unless one party to the mediation violates the agreement.))  A copy shall also be filed by the mediator with the office of superintendent of public instruction in mediations provided by that agency.

(2) Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-316, filed 10/11/95, effective 11/11/95.]

(1) A school district or other public agency may establish procedures to require parents who elect not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party:

(a) Who is under contract with a parent training and information center or community parent resource center in the state established under the Individuals with Disabilities Education Act or an appropriate alternative dispute resolution entity; and

(b) Who would explain the benefits of the mediation process, and encourage the parents to use the process.

(2) A school district or other public agency may not deny or delay a parent's right to a due process hearing under this chapter if the parent fails to participate in the meeting described in this section.

(3) A school district or other public agency shall submit its procedures for implementing this section to the office of superintendent of public instruction for review and approval, including projected costs for carrying out the process.

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As used in this chapter, the term "complaint" means an allegation, by the complainant, that the state, a local school district or other public agency, an educational service district ((or other public agency)), or other subgrantee receiving federal funds (or receiving state funds to carry out a federal requirement), including private schools and facilities where students are placed on a contractual basis, has violated a federal statute or regulation or a state regulation that applies to a federal program covered under this chapter.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-324, filed 10/11/95, effective 11/11/95.]

The superintendent of public instruction shall inform parents and other interested individuals about the citizen complaint procedures in this chapter.  Specific actions to be taken by the superintendent of public instruction include:

(1) ((Disseminating copies of the state's procedures to parent, advocacy, and professional organizations;)) Widely disseminating copies of the state's procedures to parents and other interested individuals, including protection and advocacy agencies, parent training and information centers, independent living centers, and other appropriate entities;

(2) Conducting in-service training sessions on the complaint process through educational service districts; and

(3) Including information about the system in state-wide conferences.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-328, filed 10/11/95, effective 11/11/95.]

In resolving a complaint in which it has found a failure to provide appropriate services, the office of the superintendent of public instruction pursuant to its general supervisory authority under Part B of the IDEA, must address:

(1) How to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the student; and

(2) Appropriate future provision of services for all special education students.

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Any individual((, entity,)) or organization, including an organization or individual from another state, may register a signed written complaint.  ((If a parent or adult student has also filed a request for a due process special education hearing pursuant to WAC 392-172-350, regarding the same issues, a citizen complaint by such person regarding noncompliance shall be held in abeyance until the hearing has been concluded.))

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-330, filed 10/11/95, effective 11/11/95.]

A complaint filed under this chapter shall include:

(1) A statement that an educational entity, the state, a local school district or other public agency, an educational service district, or other subgrantee has violated one or more requirements of federal statutes or regulations or state regulations that apply to ((a federal program)) Part B of the IDEA;

(2) The facts on which the statement is based;

(3) The name and address of the complainant; and

(4) In the case of a complaint alleging a violation by an educational entity other than the state and filed directly with the superintendent of public instruction, the name and address of the ((allegedly offending)) entity.

(5) The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received unless a longer period is reasonable because the violation is continuing, or the complainant is requesting compensatory services for a violation that occurred not more than three years prior to the date the complaint is received.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-332, filed 10/11/95, effective 11/11/95.]

The procedure for filing a complaint shall be as follows:

(1) A complaint alleging a violation by a local school district or other public agency, an educational service district, or other subgrantee shall be filed directly with the superintendent of public instruction.

(2) The superintendent of public instruction, upon receipt of a signed written complaint against a local school district or other public agency, an educational service district, or other subgrantee, shall refer the complaint to the ((allegedly offending)) entity for action pursuant to this chapter.

(3) Receipt of a complaint by the superintendent of public instruction activates a time ((line)) limit not to exceed sixty calendar days unless an extension of the time limit is approved by the superintendent of public instruction on the basis of exceptional circumstances relative to a particular complaint.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-334, filed 10/11/95, effective 11/11/95.]

Investigation of and response to a complaint shall be as follows:

(1) Upon receipt of a properly filed complaint with the superintendent of public instruction and referred by the superintendent of public instruction to the ((allegedly offending)) entity, the employee(s) designated pursuant to WAC 392-172-336 shall investigate the alleged violations.

(2) Upon completion of the investigation by the ((allegedly offending)) entity, the designated employee(s) shall provide the responsible official of the entity with a written report, including applicable documentation, of the results of the investigation.  Said officials shall respond in writing to the superintendent of public instruction 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 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.

(((5))) (6) Within thirty calendar days, and upon review of all relevant information including, dependent upon necessity, 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.

(((6))) (7) Consistent with the provisions of WAC 392-172-320 through 392-172-346, issue a written decision to the complainant that addresses each allegation in the complaint including findings of fact and conclusions and the reasons for the state's final decision, and clearly states 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.

(((7))) (8) When appropriate, technical assistance, negotiations, and corrective action(s) are to be instituted no later than ten days following notice of written decision by the superintendent of public instruction.

(((8))) (9) If compliance by a local school district or other public agency, educational service district, or other subgrantee is not achieved pursuant to subsection (((6))) (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.  95-21-055 (Order 95-11), § 392-172-338, filed 10/11/95, effective 11/11/95.]

(1) If a written complaint is received that is also the subject of a due process hearing under this chapter or contains multiple issues, of which one or more are part of that hearing, the office of the superintendent of public instruction must set aside any part of the complaint that is being addressed in the due process hearing, until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures described in this section.

(2) If an issue is raised in a complaint filed under this section that has previously been decided in a due process hearing involving the same parties:

(a) The hearing decision is binding; and

(b) The office of the superintendent of public instruction must inform the complainant to that effect.

(3) A complaint alleging a public agency's failure to implement a due process decision must be resolved by the office of the superintendent of public instruction.

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(1) Hearings conducted in accordance with WAC 392-172-350 through 392-172-360 may be initiated in the following cases for the purposes stated:

(a) The parent(s) of a student (or an adult student) or a school district or other public agency may initiate a hearing to challenge or to show (as the case may be) the appropriateness of a proposal by the school district or other public agency to initiate or change:

(i) The identification of the student;

(ii) The evaluation of the student;

(iii) The delivery of educational services to the student; or

(iv) The provision of special education and related services to the student pursuant to this chapter;

(b) The parent(s) of a student (or an adult student) or a school district or other public agency may initiate a hearing to challenge or to show (as the case may be) the appropriateness of the school district and other public agency's refusal of the parent(s) (or adult student's) request to initiate or change:

(i) The identification of the student;

(ii) The evaluation of the student;

(iii) The delivery of educational services to the student; or

(iv) The provision of special education and related services to the student pursuant to this chapter;

(c) A school district or other public agency may initiate a hearing to show that its evaluation of a student is appropriate if the student's parent(s) or adult student disagrees with the evaluation results and requests an independent educational evaluation.

(2) A request by a student's parent(s) or adult student for a hearing pursuant to this section shall:

(a) Be in writing and specify the district or other public agency;

(b) Be mailed or provided directly to the Office of Superintendent of Public Instruction, Office of Legal Services, Old Capitol Building, Olympia, Washington 98504; and

(c) Explain the concerns of the parent(s) or adult student in general or specific terms, as described in WAC 392-172-351.

(3) A request by a school district or other public agency for a hearing pursuant to this section shall:

(a) Be in writing;

(b) Be mailed or provided directly to Office of Superintendent of Public Instruction, Office of Legal Services, Old Capitol Building, Olympia, Washington 98504.  A copy of such request, including required attachments shall be transmitted to the student's parent(s) or adult student;

(c) Have attached to such request a copy of the notice to parent(s) or adult student as required by WAC 392-172-302.  If the hearing request by the district or other public agency is in response to a request for an independent educational evaluation pursuant to WAC 392-172-150, the school district and other public agency's written request for a hearing also shall have attached a copy of the written notice to the district or other public agency required by WAC 392-172-150(2).

(4) A notice of a hearing requested by a student's parent(s) or adult student or initiated by a school district or other public agency pursuant to this section shall be provided by the hearing officer and shall include, but not necessarily be limited to:

(a) The date, time, and place of the hearing;

(b) The issues to be addressed at the hearing to the extent the issues have been identified at the time of the notice;

(c) The rights, procedures, and other matters set forth in WAC 392-172-352 through 392-172-364; and

(d) The right of the parent(s) or adult student to seek an independent evaluation at public expense pursuant to WAC 392-172-150.

(5) The forty-five day time line for completing the hearing process shall begin on the day the superintendent receives the written request for a due process hearing.

(6) When a hearing is initiated under this section, the school district or other public agency shall inform the parents of the availability of mediation described in WAC 392-172-310 et seq.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-350, filed 10/11/95, effective 11/11/95.]

(1) The school district or other public agency must have procedures that require the parent of a special education student or the attorney representing the student to provide notice (which must remain confidential) to the school district or other public agency in a request for a hearing. The notice must include:

(a) The name of the student;

(b) The address of the residence of the student;

(c) The name of the school the student is attending;

(d) A description of the nature of the problem of the student relating to the proposed initiation or change, including facts relating to the problem; and

(e) A proposed resolution of the problem to the extent known and available to the parents at the time.

(2) The office of superintendent of public instruction shall develop a model notice form to assist parents in filing a request for a due process hearing that includes the information required above.

(3) A school district or other public agency may not deny or delay a parent's right to a due process hearing for failure to provide the notice required in this section.

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(1) If a hearing is initiated pursuant to WAC 392-172-350:

(a) The hearing shall be conducted by and at the expense of the superintendent of public instruction.

(b) The superintendent of public instruction shall provide for a court reporter's stenographic record of all testimony and other oral hearing proceedings at the expense of the superintendent of public instruction: A court reporter's stenographic record need not be transcribed for any purpose except as provided or required in WAC 392-172-354 (1)(((e))) (g) and (h).

(c) The superintendent of public instruction shall inform the parent(s) or adult student of any free or low-cost legal and other relevant services available in the area if:

(i) The parent or adult student requests the information; or

(ii) The school district or other public agency or the parent or adult student initiates a hearing.

(d) The hearing shall be conducted by a qualified person selected and appointed by the chief administrative law judge in the office of administrative hearings pursuant to WAC 10-08 and shall be a person who:

(i) Is not an employee of a public agency which is involved in the education or care of the student; and

(ii) Does not have a personal or professional interest which would conflict with his or her objectivity in the hearing.

(2) A person who otherwise qualifies to conduct a hearing under this section is not an employee of the public agency solely because he or she is paid by the agency to serve as a hearing officer.

(3) The hearing shall be conducted in accordance with the provisions of WAC 392-101-005 unless modified by this chapter.

(4) Each public agency shall keep a list of the persons who serve as hearing officers.  The list must include a statement of the qualifications of each of those persons.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-352, filed 10/11/95, effective 11/11/95.]

(1) Any party to a hearing initiated pursuant to WAC 392-172-350 has the right to:

(a) Be accompanied and advised by persons with special knowledge or training with respect to the problems of special education students;

(b) Be advised and/or represented by an attorney;

(c) Present evidence, including the opinion(s) of qualified experts, confront, cross-examine, and compel the attendance of witnesses;

(d) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing, or two business days if the hearing is expedited pursuant to WAC 392-172-38415(2);

(e) At least five business days (or two business days if the hearing is expedited pursuant to WAC 392-172-38415(2)) prior to a hearing conducted pursuant to this section, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing;

(f) A hearing officer may bar any party that fails to comply with (e) of this subsection from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party;

(g) Obtain a written, or at the option of the parents, electronic verbatim record of the hearing at no cost to any party to a hearing((.  In the event of an appeal to a court of law by the school district or other public agency, the district or other public agency shall bear the cost of transcribing the record for appeal purposes and shall make a copy available to the other party at a cost, if any, which is no greater than the school district and other public agency's cost of copying the original)); and

(((f))) (h) Obtain written, or at the option of the parents, electronic findings of fact, decisions, conclusions of law and judgments.  The state, after deleting any personally identifiable information, shall:

(i) Transmit those findings and decisions to the state advisory panel established under this chapter; and

(ii) Make those findings and decisions available to the public.

(2) Parents who are a party to a hearing have the right to have the student who is the subject of the hearing present.

(3) Parents (or adult students) who are a party to a hearing have the right to open the hearing to the public.

(4) The record of the hearing and the findings of fact and decisions described in this section shall be provided at no cost to parents.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-354, filed 10/11/95, effective 11/11/95.]

(1) Not later than forty-five days after the date of receipt of a request for a hearing pursuant to WAC 392-172-350:

(a) A final decision shall be ((reached based upon a preponderance of the evidence)) reached in the hearing; and

(b) A copy of the decision ((consisting of the hearing officer's findings of fact, conclusions of law, and judgment shall be mailed or provided directly to each of the parties and to the superintendent of public instruction by the hearing officer, together with a certification of the date of mailing and the parties to whom it was mailed.

(2) The decision of the hearing officer shall be drafted in a manner which:

(a) Sets forth the findings of fact, conclusions of law and judgment separately, and numbers each finding of fact and conclusion; and

(b) Avoids the revelation of personally identifiable information that is unnecessary to reaching and understanding the decision reached)) shall be mailed to each of the parties.

(((3))) (2) A hearing officer may grant specific extensions of time beyond the period set forth in subsection (1) of this section at the ((written or otherwise documented)) request of the parent(s) or school district or other public agency((, as follows:

(a) Continuances only by written order of the administrative law judge, which specifies the expiration date; and

(b) Continuances in instances of good cause and to periods of time that do not unjustifiably infringe on the right of either party to a timely decision)).

(((4))) (3) Each hearing shall be conducted at a time and place which is reasonably convenient to the parent(s) and student involved.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-356, filed 10/11/95, effective 11/11/95.]

(1) A decision made in a hearing initiated pursuant to WAC 392-172-350 is final, unless modified or overturned by a court of law.  Any party aggrieved by the findings and decision made in a hearing who does not have the right to appeal under this chapter has the right to bring a civil action under section 615 (e)(2) of the Individuals with Disabilities Education Act.  A civil action may be filed in either state or federal court.

(2) In any action brought under this section, the court:

(a) Shall receive the records of the administrative proceedings.

(b) Shall hear additional evidence at the request of a party.

(c) Shall grant the relief that the court determines to be appropriate basing its decision on the preponderance of the evidence.

(3) The district courts of the United States have jurisdiction of actions brought under section 615 of the Individuals with Disabilities Education Act without regard to the amount in controversy.

(4) Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of special education students, except that before the filing of a civil action under these laws seeking relief that is also available under section 615 of the Individuals with Disability Education Act, the procedures for a due process hearing in this chapter must be exhausted to the same extent as would be required had the action been brought under section 615 of the Individuals with Disabilities Education Act.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-360, filed 10/11/95, effective 11/11/95.]

(1) Each public agency shall inform parents that in any action or proceeding under section 615 of the Individuals with Disabilities Education Act, courts in their discretion, may award parents reasonable attorneys' fees ((under the circumstances described in section 615 (e)(4))) as part of the costs to the parents of a special education student who is the prevailing party.

(2) Funds under Part B of the Individuals with Disabilities Education Act may not be used to pay attorneys' fees or costs of a party related to an action or proceeding under section 615 of the IDEA and the procedural safeguards in this chapter. This does not preclude a public agency from using funds under Part B of the IDEA for conducting an action or proceeding under section 615 of the IDEA.

(3) A court awards reasonable attorneys' fees under section 615 (i)(3) of the IDEA consistent with the following:

(a) Fees awarded under section 615 (i)(3) of the IDEA must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this section.

(b) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the IDEA for services performed subsequent to the time of a written offer of settlement to a parent if:

(i) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins;

(ii) The offer is not accepted within ten days; and

(iii) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

(c) Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the office of the superintendent of public instruction for a mediation described in this chapter that is conducted prior to the filing of a request for due process under this chapter.

(d) Notwithstanding (b) of this subsection, an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

(e) Except as provided in (b) of this subsection, the court reduces, accordingly, the amount of the attorneys' fees awarded under section 615 of the IDEA, if the court finds that:

(i) The parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(ii) The amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;

(iii) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

(iv) The attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with this chapter.

(f) The provisions of (b) of this subsection do not apply in any action or proceeding if the court finds that the state or local agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the IDEA.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-362, filed 10/11/95, effective 11/11/95.]

(1) Except as provided in WAC 392-172-370 through 392-172-385, during the pendency of any administrative or judicial proceeding regarding a hearing request initiated pursuant to WAC 392-172-350 ((or a written request for mediation,)) unless the school district or other public agency and the parent(s) of the student or the adult student agree otherwise, the student involved in the hearing ((or mediation)) request shall remain in the educational program he or she was in at the time the hearing ((or mediation)) request was made.

(2) ((The student, with the consent of the parent(s) or the adult student, shall be enrolled in the general school program until the completion of all such proceedings if the hearing or mediation request involves an application for initial admission to the school.

(3) During the pendency of a hearing regarding the disciplinary exclusion of a special education student who brings a firearm (as defined in Section 921 of Title 18 of the U.S.C.), to school, the student can receive services in an alternative educational program for up to forty-five calendar days.  This alternative educational program must be developed in an individualized education program meeting conducted pursuant to WAC 392-172-156.)) If the complaint involves an application for initial admission to public school, the student, with the consent of the parents, must be placed in the public school until the completion of all the proceedings.

(3) If the decision of a hearing officer in a due process hearing agrees with student's parents that a change of placement is appropriate, that placement must be treated as an agreement between the state, school district or other public agency and the parents for purposes of this section.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-364, filed 10/11/95, effective 11/11/95.]

The purpose of WAC 392-172-370 through ((392-172-382)) 392-172-385 is to ensure that special education students are not being improperly excluded from school for disciplinary reasons.  Each school district or other public agency, educational service district and public agency serving special education students shall take steps to ensure that each employee, contractor, and other agent of the district or other public agency responsible for education or care of a special education student is knowledgeable of WAC 392-172-370 through ((392-172-382)) 392-172-385.  No school district or other public agency and no educational service district shall authorize, permit, or condone the use of disciplinary procedures which violate WAC 180-40 and WAC 392-172-370 through ((392-172-382)) 392-172-385 by any employee, contractor, or other agent of the district or other public agency responsible for the education or care of a special education student.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-370, filed 10/11/95, effective 11/11/95.]

The following definitions apply to this section only:

(1) "Controlled substance" means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

(2) "Illegal drug" means a controlled substance, but does not include, a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under the Controlled Substances Act or under any other provision of federal law.

(3) "Dangerous weapon" means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than two and one-half inches in length.

(4) "Substantial evidence" means beyond a preponderance of the evidence.

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For purposes of removals of a special education student from the student's current educational placement under WAC 392-172-370 et seq., a change of placement occurs if:

(1) The removal is for more than ten consecutive school days; or

(2) The student is subjected to a series of removals that constitute a pattern because they cumulate to more than ten school days in a school year, and because of factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another.

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To the extent removal would be applied to students without disabilities, school personnel may order the removal of a special education student from the student's current placement for not more than ten consecutive school days for any violation of school rules, and additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct as long as those removals do not constitute a change of placement under WAC 392-172-373(2).

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(1) A public agency need not provide services during periods of removal under WAC 392-172-37500 to a special education student who has been removed from his or her current placement for ten school days or less in that school year, if services are not provided to a student without disabilities who has been similarly removed.

(2) In the case of a special education student who has been removed from his or her current placement for more than ten school days in that school year, the public agency, for the remainder of the removals, shall provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP.

(3) School personnel, in consultation with the student's special education teacher, determine the extent to which services are necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP, when there is no change of placement.

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School personnel may order a change in placement of a special education student to an appropriate interim alternative educational setting for the same amount of time that a student without a disability would be subject to discipline, but for not more than forty-five days, if:

(1) The student carries a weapon to school or to a school function under the jurisdiction of a state or local education agency; or

(2) The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a state or local educational agency.

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Within ten business days after first removing a student for more than ten school days in a school year, including weapons violations, drugs violations, or behavior that is substantially likely to result in injury to the student or to others, the following actions shall be taken by the school district or other public agency:

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

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

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

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

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

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A hearing officer under section 615 of the Individuals with Disabilities Education Act may order a change in the placement of a special education student to an appropriate interim alternative educational setting for not more than forty-five days if the hearing officer, in an expedited due process hearing:

(1) Determines that the district or other public agency has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others;

(2) Considers the appropriateness of the student's current placement;

(3) Considers whether the district or other public agency has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services; and

(4) Determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the student's special education teacher meets the requirements of WAC 392-172-381 (1) and (2).

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Any interim alternative educational setting in which a student is placed under WAC 392-172-37510 and 392-172-379 shall:

(1) Be selected so as to enable the student to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the student's current individualized education program, that will enable the student to meet the goals set out in that individualized education program; and

(2) Include services and modifications designed to address the behavior described in WAC 392-172-37510 or 392-172-379, that are designed to prevent the behavior from recurring.

The individualized education program team shall determine an interim alternative educational setting under WAC 392-172-37510.

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If an action is contemplated by a school district, other public agency personnel, or a hearing officer that involves removing a student for weapons violations, drugs violations, behavior that is substantially likely to result in injury to the student or to others, or other behavior that violates any rule or code of conduct that applies to all students which results in a change of placement under WAC 392-172-373, the following actions shall be taken by the school district or other public agency:

(1) Not later than the date on which the decision to remove the student is made, the parents must be notified of that decision and provided the procedural safeguards notice described under this chapter; and

(2) Immediately, if possible, but in no case later than ten school days after the date on which the decision to remove the student is made, a review must be conducted of the relationship between the student's disability and the behavior subject to the disciplinary action.

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The individualized education program team and other qualified personnel in a meeting shall conduct a manifestation determination review. In carrying out the review, the team may determine that the behavior of the student was not a manifestation of the student's disability only if the team:

(1) First considers, in terms of the behavior subject to disciplinary action, all relevant information including:

(a) Evaluation and diagnostic results, including the results of other relevant information supplied by the parents of the student;

(b) Observations of the student; and

(c) The student's individualized education program and placement.

(2) Then determines that:

(a) In relationship to the behavior subject to disciplinary action, the student's individualized education program and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the student's individualized education program and placement;

(b) The student's disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and

(c) The student's disability did not impair the ability of the student to control the behavior subject to disciplinary action.

(3) If the team determines that any of the above standards in this section were not met, the behavior must be considered a manifestation of the student's disability.

(4) The manifestation determination review described in this section may be conducted at the same individualized education program meeting that is convened to address a functional behavioral assessment and behavioral intervention plan.

(5) If the review identifies deficiencies in the student's IEP or placement or in their implementation, the district or other public agency must take immediate steps to remedy those deficiencies.

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(1) If the results of the manifestation determination review indicate that the behavior of the special education student was not a manifestation of the student's disability, the relevant disciplinary procedures applicable to students without disabilities may be applied to the student in the same manner in which they would be applied to students without disabilities, except that a free appropriate public education shall continue to be made available to those students consistent with this chapter.

(2) The student's IEP team determines the extent to which services are necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP if the student is removed because of behavior that has been determined not to be a manifestation of the student's disability.

(3) If the school district or other public agency initiates disciplinary procedures applicable to all students, the district or other public agency shall ensure that the special education and disciplinary records of the special education student are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.

(4) If a parent requests a hearing to challenge the determination that the behavior of the student was not a manifestation of the student's disability, then the student shall remain in the student's current educational placement as described in WAC 392-172-364 or interim alternative educational setting consistent with WAC 392-172-38405, whichever applies.

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(1) If the student's parent disagrees with a determination that the student's behavior was not a manifestation of the student's disability or with any decision regarding placement for disciplinary purposes, the parent may request a hearing.

(2) The school district or other public agency shall arrange for an expedited hearing in any case described in WAC 392-172-38415 if requested by the parent.

(3) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the district or other public agency has demonstrated that the student's behavior was not a manifestation of the student's disability consistent with the requirements of WAC 392-172-38305.

(4) In reviewing a decision to place the student in an interim alternative educational setting, the hearing officer shall apply the standards, under WAC 392-172-379.

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(1) If a parent requests a hearing regarding a disciplinary action related to removals for weapons or drugs or dangerous behavior to challenge the interim alternative educational setting or the manifestation determination, the student must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the forty-five day time period provided for, whichever occurs first, unless the parent and the school district or other public agency agree otherwise.

(2) If a student is placed in an interim alternative educational setting pursuant to this section and school personnel propose to change the student's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement the student must remain in the current placement (the student's placement prior to the interim alternative educational setting), except as provided for below.

(3) If school or other agency personnel maintain that it is dangerous for the student to be in the current placement (placement prior to removal to the interim alternative educational setting) during the pendency of the due process proceedings, the district or other public agency may request an expedited due process hearing.

(4) In determining whether the student may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards under WAC 392-172-379.

(5) A placement ordered pursuant to this section may not be longer than forty-five days.

(6) The procedure in this section may be repeated as necessary.

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(1) A student who has not been determined to be eligible for special education and related services under this chapter and who has engaged in behavior that violated any rule or code of conduct of the school district or other public agency, including any behavior described in this section, may assert any of the protections provided for in this section if the school district or other public agency had knowledge that the student was a special education student before the behavior that precipitated the disciplinary action occurred. A school district or other public agency must be deemed to have knowledge that a student is a special education student if:

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

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

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

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

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

(a) Either:

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

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

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

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

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

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

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

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Expedited due process hearings under this section shall:

(1) Result in a written decision being mailed to the parties within forty-five days of the district's or other public agency's receipt of the request for the hearing without exceptions or extensions. The timeline established in this subsection shall be the same for hearings requested by parents, school districts or other public agencies;

(2) Meet the requirements of WAC 392-172-354 except that the time periods identified for the disclosure of records and evaluations for purposes of expedited due process hearings are not less than two business days;

(3) Be conducted by a due process hearing officer who satisfies the impartiality requirements of WAC 392-172-352; and

(4) The decisions on expedited due process hearings are appealable under the state's normal due process appeal procedures.

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(1) Nothing in Part B of the Individuals with Disabilities Education Act prohibits a school district or other public agency from reporting a crime committed by a special education student to appropriate authorities or to prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a special education student.

(2) A school district or other public agency reporting a crime committed by a special education student shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities to whom it reports the crime.

(3) A school district or other public agency reporting a crime under this section may transmit copies of the student's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.

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The purpose of WAC 392-172-388 through 392-172-398 is to assure that special education students ((with a disabling condition)) are safeguarded against the use and misuse of various forms of aversive ((therapy)) interventions.  Each school district or other public agency and educational service district shall take steps to assure that each employee, volunteer, contractor, and other agent of the district or other public agency responsible for the education, care, or custody of a special education student ((with a disabling condition)) is aware of WAC 392-172-388 through 392-172-398.  No school district or other public agency and no educational service district shall authorize, permit, or condone the use of aversive ((therapy)) interventions which violates WAC 392-172-390 through 392-172-396 by any employee, volunteer, contractor or other agent of the district or other public agency responsible for the education, care, or custody of a special education student ((with a disabling condition)).  Aversive ((therapy)) interventions, to the extent permitted, shall only be used as a last resort.  Positive interventions shall be attempted by the district or other public agency and educational service district and described in the individualized education program consistent with WAC 392-172-161 prior to the use of aversive ((therapy)) interventions.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-388, filed 10/11/95, effective 11/11/95.]

For the purpose of WAC 392-172-388 through 392-172-398, the term "aversive ((therapy)) interventions" means the systematic use of stimuli or other treatment which a student is known to find painful or unpleasant for the purpose of discouraging undesirable behavior on the part of the student.  The term does not include the use of reasonable force, restraint, or other treatment to control unpredicted spontaneous behavior which poses one of the following dangers:

(1) A clear and present danger of serious harm to the student or another person.

(2) A clear and present danger of serious harm to property.

(3) A clear and present danger of seriously disrupting the educational process.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-390, filed 10/11/95, effective 11/11/95.]

There are certain forms of aversive ((therapy)) interventions that are manifestly inappropriate by reason of their offensive nature or their potential negative physical consequences, or both.  The purpose of this section is to uniformly prohibit their use respecting special education students ((with a disabling condition,)) as follows:

(1) Electric current.  No student may be stimulated by contact with electric current.

(2) Food services.  No student who is willing to consume subsistence food or liquid when the food or liquid is customarily served may be denied or subjected to an unreasonable delay in the provision of the food or liquid.

(3) Force and restraint in general.  No force or restraint which is either unreasonable under the circumstances or deemed to be an unreasonable form of corporal punishment as a matter of state law may be used.  See RCW 9A.16.100 which cites the following uses of force or restraint as uses which are presumed to be unreasonable and therefore unlawful:

(a) Throwing, kicking, burning, or cutting a student.

(b) Striking a student with a closed fist.

(c) Shaking a student under age three.

(d) Interfering with a student's breathing.

(e) Threatening a student with a deadly weapon.

(f) Doing any other act that is likely to cause and which does cause bodily harm to a student greater than transient pain or minor temporary marks.

((Note: This)) (4) The statutory listing of worst case uses of force or restraint described in subsection (3) of this section may not be read as implying that all unlisted uses (e.g., shaking a four year old) are permissible.  Whether or not an unlisted use of force or restraint is permissible depends upon such considerations as the balance of these rules, and whether the use is reasonable under the circumstances.

(((4))) (5) Hygiene care.  No student may be denied or subjected to an unreasonable delay in the provision of common hygiene care.

(((5))) (6) Isolation.  No student may be excluded from his or her general instructional or service area and isolated within a room or any other form of enclosure, except under the conditions set forth in WAC 392-172-394.

(((6))) (7) Medication.  No student may be denied or subjected to an unreasonable delay in the provision of oral medication.

(((7))) (8) Noise.  No student may be forced to listen to noise or sound which the student obviously finds painful.

(((8))) (9) Noxious sprays.  No student may be forced to smell or be sprayed in the face with a noxious or potentially harmful substance.

(((9))) (10) Physical restraints.  No student may be physically restrained or immobilized by binding or otherwise attaching the student's limbs together or by binding or otherwise attaching any part of the student's body to an object, except under the conditions set forth in WAC 392-172-394.

(((10))) (11) Taste treatment.  No student may be forced to taste or ingest a substance which is not commonly consumed or which is not commonly consumed in its existing form or concentration.

(((11))) (12) Water treatment.  No student's head may be partially or wholly submerged in water or any other liquid.

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

Various forms of aversive ((therapy)) interventions which are not prohibited by WAC 392-172-392 nevertheless warrant close scrutiny.  Accordingly, the use of aversive ((therapy)) interventions involving bodily contact, isolation, or physical restraint not prohibited by WAC 392-172-392 is conditioned upon compliance with certain procedural and substantive safeguards, as follows:

(1) Bodily contact.  The use of any form of aversive ((therapy)) interventions not prohibited by WAC 392-172-392 which involves contacting the body of a special education student ((with a disabling condition)) shall be provided for by the terms of the student's individualized education program established in accordance with the requirements of WAC 392-172-396.

(2) Isolation.  The use of aversive ((therapy)) interventions which involves excluding a special education student ((with a disabling condition)) from his or her general instructional area and isolation of the student within a room or any other form of enclosure is subject to each of the following conditions:

(a) The isolation, including the duration of its use, shall be provided for by the terms of the student's individualized education program established in accordance with the requirements of WAC 392-172-396.

(b) The enclosure shall be ventilated, lighted, and temperature controlled from inside or outside for purposes of human occupancy.

(c) The enclosure shall permit continuous visual monitoring of the student from outside the enclosure.

(d) An adult responsible for supervising the student shall remain in close proximity.

(e) Either the student shall be capable of releasing himself or herself from the enclosure or the student shall continuously remain within view of an adult responsible for supervising the student.

(3) Physical restraint.  The use of aversive ((therapy)) interventions which involves physically restraining or immobilizing a special education student ((with a disabling condition)) by binding or otherwise attaching the student's limbs together or by binding or otherwise attaching any part of the student's body to an object is subject to each of the following conditions:

(a) The restraint shall only be used when and to the extent it is reasonably necessary to protect the student, other persons, or property from serious harm.

(b) The restraint, including the duration of its use, shall be provided for by the terms of the student's individualized education program established in accordance with the requirements of WAC 392-172-396.

(c) The restraint shall not interfere with the student's breathing.

(d) An adult responsible for supervising the student shall remain in close proximity.

(e) Either the student shall be capable of releasing himself or herself from the restraint or the student shall continuously remain within view of an adult responsible for supervising the student.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-394, filed 10/11/95, effective 11/11/95.]

The terms of a student's individualized education program respecting the use of an aversive ((therapy)) interventions involving bodily contact, isolation, or physical restraint shall meet each of the following requirements:

(1) The individualized education program be consistent with the recommendations of a ((multidisciplinary)) IEP team which includes a school psychologist and/or other certificated employee who understands the appropriate use of the aversive ((therapy)) interventions and who concurs with the recommended use of the aversive ((therapy)) interventions, and a person who works directly with the student.

(2) The individualized education program shall specify the aversive ((therapy)) interventions that may be used.

(3) The individualized education program shall state the reason the aversive ((therapy)) interventions is judged to be appropriate and the behavioral objective sought to be achieved by its use, and shall describe the positive interventions attempted and the reasons they failed, if known.

(4) The individualized education program shall describe the circumstances under which the aversive ((therapy)) interventions may be used.

(5) The individualized education program shall describe or specify the maximum duration of any isolation or restraint.

(6) The individualized education program shall specify any special precautions that must be taken in connection with the use of the aversive ((therapy)) interventions technique.

(7) The individualized education program shall specify the person or persons permitted to use the aversive ((therapy)) interventions and the qualifications and required training of the personnel permitted to use the aversive ((therapy)) interventions.

(8) The individualized education program shall establish a means of evaluating the effects of the use of the aversive ((therapy)) interventions and a schedule for periodically conducting the evaluation.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-396, filed 10/11/95, effective 11/11/95.]

A parent of a special education student ((with a disabling condition)) may file a complaint alleging a violation of WAC 392-172-392, 392-172-394, or 392-172-396 involving the student.  Each such complaint shall be investigated and addressed by a school district or other public agency, educational service district, and the superintendent of public instruction in accordance with the terms of this chapter.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-398, filed 10/11/95, effective 11/11/95.]

(1) For the purpose of WAC 392-172-400 through 392-172-426 and the Family Educational Rights and Privacy Act of 1974 governing student records, the term "educational records" shall mean those records that:

(a) Are directly related to a student; and

(b) Are maintained by a school district or other public agency or by a party acting for the school district or other public agency.

(2) The term "educational records" does not include:

(a) Records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which:

(i) Are in the sole possession of the maker ((thereof)) of the record; and

(ii) Are not accessible or revealed to any other individual except a substitute.  For the purpose of this definition, a "substitute" means an individual who performs on a temporary basis the duties of the individual who made the record and does not refer to an individual who permanently succeeds the maker of the record in his or her position;

(b) Records of a ((security)) law enforcement unit of a school district or other public agency which are:

(i) Maintained apart from the records described in subsection (1) of this section;

(ii) Maintained solely for district or other public agency security purposes; and

(iii) Not disclosed to individuals other than security officials of the same district or other public agency.  This exception from the definition of educational records does not apply if educational records are disclosed to personnel of the school district and other public agency's security unit;

(c) Records relating to an individual who is employed by a school district or other public agency which:

(i) Are made and maintained in the normal course of business;

(ii) Relate exclusively to the individual in that individual's capacity as an employee; and

(iii) Are not available for use for any other purpose: This exception from the definition of "educational records" does not apply to records relating to an individual in attendance at the school district or other public agency who is employed as a result of his or her status as a student;

(d) Records relating to an adult student which are:

(i) Created or maintained by a physician, psychiatrist, psychologist, or other recognized professional acting in their professional or paraprofessional capacity;

(ii) Created, maintained, or used only in connection with the provision of treatment to the student; and

(iii) Not disclosed to anyone other than individuals providing the treatment.  However, the records can be personally reviewed by a physician or other appropriate professional of the student's choice.  For the purpose of this definition, "treatment" does not include remedial educational activities or activities which are part of the program of instruction at the school district or other public agency;

(e) Records of a school district or other public agency which contain only information relating to a person after that person was no longer a student at the school district or other public agency.  An example would be information collected by a school district or other public agency pertaining to the accomplishments of its alumni.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-400, filed 10/11/95, effective 11/11/95.]

For the purpose of WAC 392-172-400 through 392-172-426 governing records of special education students:

(1) "Destruction" shall mean physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

(2) "Native language," when used with reference to an individual of limited English proficiency, means the language normally used by that individual, or in the case of a student, the language normally used by the parents of a student or by the adult student.

(3) "((Educational)) Participating agency" means any agency or institution which collects, maintains, or uses personally identifiable information or from which information is obtained in implementing this chapter.

(4) "Personally identifiable" means that information includes:

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

(b) The address of the student;

(c) A personal identifier, such as the student's social security number or student number; or

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

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-402, filed 10/11/95, effective 11/11/95.]

((The state)) Participating agencies, including the state, shall give notice that is adequate to fully inform parents about the requirements of this chapter regarding ((the identification, location, and evaluation of eligible special education students)) the protection of the confidentiality of any personally identifiable information collected, used, or maintained, including:

(1) A description of the extent to which notice is given in the native languages of the various population groups in the state;

(2) A description of the students on whom personally identifiable information is maintained, the types of information sought, the methods the ((state)) participating agency intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

(3) A summary of the policies and procedures that ((educational)) participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

(4) A description of all of the rights of parents and students regarding this information, including the rights under the Family Educational Rights and Privacy Act of 1974 and implementing regulations.

Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media, or both with circulation adequate to notify parents throughout the state of the activity.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-404, filed 10/11/95, effective 11/11/95.]

(1) Each school district or other public agency shall permit parents of special education students (or adult students) to inspect and review during school business hours any educational records relating to their student or the adult student which are collected, maintained, or used by the district or other public agency under this chapter.  The district or other public agency shall comply with a request promptly and before any meeting regarding an individualized education program or hearing relating to the identification, evaluation, ((or)) delivery of services to the student or discipline and in no case more than forty-five calendar days after the request has been made.

(2) The right to inspect and review educational records under this section includes:

(a) The right to a response from the educational agency to reasonable requests for explanations and interpretations of the records;

(b) The right to request that the school district or other public agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and

(c) The right to have a representative of the parent or adult student inspect and review records.

(3) A school district or other public agency may presume that a parent has authority to inspect and review records relating to his or her student unless the district or other public agency has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation, and divorce.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-408, filed 10/11/95, effective 11/11/95.]

Each ((educational)) participating agency shall keep a record of parties obtaining access to educational records collected, maintained, or used under this chapter (except access by parents, adult students, and authorized employees of the educational agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-410, filed 10/11/95, effective 11/11/95.]

Each ((educational)) participating agency shall provide parents (and adult students) on request a list of the types and locations of educational records collected, maintained, or used by the agency.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-414, filed 10/11/95, effective 11/11/95.]

(1) A participating educational agency may charge a fee for copies of records which are made for parents (or adult students) under this chapter if the fee does not effectively prevent the parents (or adult students) from exercising their right to inspect and review those records.

(2) ((An educational)) A participating agency may not charge a fee to search for or to retrieve information under this chapter.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-416, filed 10/11/95, effective 11/11/95.]

(1) A parent of a special education student (or an adult student) who believes that information in educational records collected, maintained, or used under this chapter is inaccurate or misleading or violates the privacy or other rights of the student may request the ((educational)) participating agency which maintains the information to amend the information.

(2) The agency shall decide whether to amend the information in accordance with the request within a reasonable period of time after receipt of the request.

(3) If the agency refuses to amend the information in accordance with the request it shall inform the parent or adult student of the refusal and advise the parent or adult student of the right to a hearing provided for in WAC 392-172-420.

(4) The ((educational)) participating agency, on request, shall provide the parent or adult student an opportunity for a hearing to challenge information, in the educational records, to insure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student.

(5) If, as a result of the hearing, the ((educational)) participating agency decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it shall amend the information accordingly and so inform the parent or adult student in writing.

(6) If, as a result of the hearing, the ((educational)) participating agency decides that the information is not inaccurate, misleading or otherwise in violation of the privacy or other rights of the student, it shall inform the parent(s) or adult student of the right to place in the records it maintains on the student a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.

(7) Any explanation placed in the records of the student in compliance with this section shall:

(a) Be maintained by the ((educational)) participating agency as part of the records of the student as long as the records or the contested portion is maintained by the educational agency; and

(b) Also be disclosed to any party to whom the records of the student (or the contested portion thereof) are disclosed.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-418, filed 10/11/95, effective 11/11/95.]

A hearing initiated pursuant to WAC 392-172-418 to challenge information in educational records shall be conducted according to procedures which include at least the following elements:

(1) The hearing shall be held within a reasonable period of time after the ((educational)) agency has received the request;

(2) The parent or adult student shall be given notice of the date, place, and time reasonably in advance of the hearing;

(3) The hearing may be conducted by any party, including an official of the ((educational)) agency, who does not have a direct interest in the outcome of the hearing;

(4) The parent or adult student shall be afforded a full and fair opportunity to present evidence relevant to the issues raised pursuant to WAC 392-172-418 and may be assisted or represented by individuals of his or her choice at his or her own expense, including an attorney;

(5) The ((educational)) agency shall provide a written decision to the parent or adult student within a reasonable period of time after the conclusion of the hearing; and

(6) The decision of the ((educational)) agency shall:

(a) Be based solely upon the evidence presented at the hearing; and

(b) Include a summary of the evidence and the reasons for the decision.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-420, filed 10/11/95, effective 11/11/95.]

(1) Except as to disclosures addressed in the discipline procedures under this chapter for which parental consent is not required by 34 CFR Part 99, consent of a parent or adult student shall be obtained before personally identifiable information is:

(a) Disclosed to anyone other than officials of ((educational)) participating agencies collecting or using the information obtained under this chapter subject to subsection (2) of this section; or

(b) Used for any purpose other than meeting a requirement imposed by this chapter.

(2) No school district or other public agency shall release information from educational records to ((educational)) participating agencies without the consent of a parent or adult student except in those cases in which a release of information without consent is permitted by the rules that implement the federal Privacy Rights of Parents and Students Part 99 of 34 Code of Federal Regulations (CFR) 34 sections 99.1 et seq.  See 34 CFR 99.31 (when prior consent not required), 34 CFR 99.35 (disclosure to state and federal officials) and 34 CFR 99.37 (directory information).

(3) If a parent refuses to provide consent under this section, the school district or other public agency may use the due process hearing procedures in this chapter to override parental refusal.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-422, filed 10/11/95, effective 11/11/95.]

(1) Each ((educational)) participating agency shall protect the confidentiality of personally identifiable information at the collection, storage, disclosure, and destruction stages.  The same privacy provisions provided to parents are extended to special education students with consideration given to the type and severity of the student's disability.

(2) One official at each ((educational)) 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 state's policies and procedures on protection of the confidentiality of personally identifiable information ((set forth in the state's annual program plan)); and

(b) 34 CFR 99.1 et seq. (the Family Educational Rights and Responsibilities Act rules).

(4) Each ((educational)) 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.  95-21-055 (Order 95-11), § 392-172-424, filed 10/11/95, effective 11/11/95.]

(1) Each school district or other public agency shall inform parent(s) (and adult students) when personally identifiable information collected, maintained, or used in compliance with this chapter is no longer needed to provide educational services to the student.

(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.  95-21-055 (Order 95-11), § 392-172-426, filed 10/11/95, effective 11/11/95.]

(1) The special education state advisory council is hereby established in order to help facilitate the provision of special education and related services to meet the unique needs of special education students.

(2) The membership of the council shall include at least one representative of each of the following groups or entities:

(a) Individuals with disabilities;

(b) Teachers ((of special education students));

(c) Parents of special education students;

(d) Local administrators of special education programs;

(e) Support services personnel;

(f) Superintendents;

(g) Principals;

(h) Nonpublic schools serving special education students;

(i) School directors;

(j) Institutions of higher education that prepare special education and related services personnel;

(k) State agencies involved in the financing or delivery of related services to special education students;

(l) Vocational, community, or business organization concerned with the provision of transition services to special education students;

(m) State juvenile and adult corrections agencies;

(((k) Department of social and health services;

(l) The medical profession; and

(m))) (n) Other individuals or groups as may hereafter be designated and approved by the superintendent of public instruction.

A majority of the members of the advisory council shall be individuals with disabilities or parents of special education students.

(3) The council's purposes are to:

(a) Advise the superintendent of public instruction and make recommendations on all matters related to special education and specifically advise the superintendent of unmet needs within the state in the education of special education students including personnel needs as addressed in the state's comprehensive system of personnel development, WAC 392-172-550 et seq.;

(b) Comment publicly on ((the state's annual program plan, state rules)) any rules or regulations proposed by the state regarding the education of special education students((, and the procedures for distribution of funds)); ((and))

(c) Assist the state in developing and reporting such information and evaluations as may assist the federal government;

(d) Advise the state in developing corrective action plans to address findings identified in federal monitoring reports under Part B of the Individuals with Disabilities Education Act;

(e) Advise the state in developing and implementing policies relating to the coordination of services for special education students; and

(f) Advise the state on the education of eligible special education students who have been convicted as adults and incarcerated in adult prisons.

(4) The council shall conduct its affairs in accordance with bylaws approved by the superintendent of public instruction.  To assure that information and recommendations are provided to the superintendent of public instruction, the state advisory council shall have the authority to recommend the design of its organization and to appoint subcommittees from its membership for carrying out council responsibilities.  Ad hoc subcommittees with membership other than council members may be appointed.  The superintendent of public instruction or designee must give prior approval for such appointments.

(5) ((Procedures --)) The council shall follow the procedures ((noted)) in this ((section)) subsection.

(a) The advisory council shall meet as often as necessary to conduct its business.

(b) By July 1 of each year, the advisory council shall submit an annual report of council activities and suggestions to the superintendent of public instruction.  This report must be made available to the public in a manner consistent with other public reporting requirements of this chapter.

(c) Official minutes must be kept on all council meetings and shall be made available to the public on request to the office of superintendent of public instruction.

(d) All advisory council meetings and agenda items must be publicly announced ((prior to the meeting)) enough in advance of the meeting to afford interested parties a reasonable opportunity to attend, and meetings must be open to the public.

(e) Interpreters and other necessary services must be provided at council meetings for council members or participants.

(f) The advisory council shall serve without compensation but the superintendent of public instruction must reimburse the council for reasonable and necessary expenses for attending meetings and performing duties.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-500, filed 10/11/95, effective 11/11/95.]

(1) The superintendent of public instruction shall ((develop and implement)) ensure that an interagency agreement((s with all other state and local agencies that provide or pay for services required under this chapter for special education students)) or other mechanism for interagency coordination is in effect between each noneducational public agency described in this section and the state, in order to ensure that all services described in this section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute.  Consideration shall be given to preserving existing arrangements between school districts and other noneducational public agencies ((and other agencies)) which are consistent with this chapter.  These agreements or mechanisms shall:

(((1))) (a) Describe the role that each agency plays in providing or paying for required services;

(((2))) (b) Define the financial responsibility of each agency for providing special education students with a free appropriate public education. The financial responsibility of each noneducational public agency including the state Medicaid agency and other public insurers of special education students, shall precede the financial responsibility of the school district (or the state agency responsible for development of the student's individualized education program);

(((3))) (c) Establish procedures for resolving interagency disputes among agencies that are parties to the agreements; ((and

(4))) (d) Establish procedures under which school districts and other public agencies may initiate proceedings in order to secure reimbursement from agencies that are parties to the agreements or otherwise implement the provisions of the agreements; and

(e) Establish procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services.

(2) If any public agency other than a school district is otherwise obligated under federal or state law, or assigned responsibility under state policy to provide or pay for any services that are also considered special education or related services as defined in this chapter, such as, but not limited to, assistive technology devices and services, supplementary aids and services and transition services that are necessary for ensuring a free appropriate public education to special education students within the state, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement.

(3) A noneducational public agency may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.

(4) If a public agency other than an educational agency fails to provide or pay for the special education and related services described in this section, the school district (or state agency responsible for developing the student's IEP) shall provide or pay for these services to the student in a timely manner. The school district or state agency may then claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services and that agency shall reimburse the school district or state agency in accordance with the terms of the interagency agreement or other mechanism described in this section, and the agreement described in subsection (1)(d) of this section.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-502, filed 10/11/95, effective 11/11/95.]

(1) A public agency may use the Medicaid or other public insurance benefits programs in which a student participates to provide or pay for services required under this chapter, as permitted under the public insurance program, except as provided in subsection (2) of this section.

(2) With regard to services required to provide FAPE to an eligible student under this chapter, the public agency:

(a) May not require parents to sign up for or enroll in public insurance programs in order for their student to receive FAPE under Part B of the IDEA;

(b) May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this chapter, but pursuant to WAC 392-172-50305, may pay the cost that the parent otherwise would be required to pay; and

(c) May not use a student's benefits under a public insurance program if that use would:

(i) Decrease available lifetime coverage or any other insured benefit;

(ii) Result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the student outside of the time the student is in school;

(iii) Increase premiums or lead to the discontinuation of insurance; or

(iv) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.

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(1) With regard to services required to provide FAPE to an eligible student under this chapter, a public agency may access a parent's private insurance proceeds only if the parent provides informed consent consistent with this chapter.

(2) Each time the public agency proposes to access the parent's private insurance proceeds, it must:

(a) Obtain parent consent in accordance with this chapter; and

(b) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

(3) If a public agency is unable to obtain parental consent to use the parent's private insurance, or public insurance when the parent would incur a cost for a specified service required under this chapter, to ensure FAPE the public agency may use its Part B funds to pay for the service.

(4) To avoid financial cost to parents who otherwise would consent to use private insurance, or public insurance if the parent would incur a cost, the public agency may use its Part B funds to pay the cost the parents otherwise would have to pay to use the parent's insurance (e.g., the deductible or co-pay amounts).

(5) Proceeds from public or private insurance will not be treated as program income for purposes of 34 CFR 80.25.

(6) If a public agency spends reimbursements from federal funds (e.g., Medicaid) for services under this chapter those funds will not be considered "state or local" funds for purposes of the maintenance of effort provisions in this chapter.

(7) Nothing in this section should be construed to alter the requirements imposed on a state Medicaid agency, or any other agency administering a public insurance program by federal statute, regulations or policy under title XIX, or title XXI of the Social Security Act, or any other public insurance program.

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(1) The superintendent of public instruction or designee shall annually monitor selected local school district or other public agency special education programs.  The purposes of monitoring shall be((:

(a))) to determine the school district and other public agency's compliance with this chapter and the federal regulations implementing 20 USC Section 1401, et seq. (Part B of the Individuals with Disabilities Education Act) and federal and state special education laws including validation of information included in school district or other public agency ((applications)) requests for federal funds((; and

(b) To provide the school district or other public agency with technical assistance for improving the quality of its special education program)).

(2) The superintendent of public instruction or designee shall develop procedures (including specific time lines) for monitoring school districts and other public agencies.  These procedures shall include:

(a) Collection of data and reports;

(b) Conduct of on-site visits;

(c) A review of state and federal special education fund utilization; and

(d) Comparison of a sampling of individualized education programs with the programs actually provided.

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

(a) Findings of noncompliance, if any; and

(b) Required corrective actions for remediation of any such instance(s) of noncompliance.

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

(a) Acceptance of the report; or

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

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

(5) In the event that the district or other public agency submits supplemental arguments and/or facts which may serve as a basis for alteration of the monitoring report, the office of superintendent of public instruction shall within thirty calendar days provide the district or other public agency with a ((determination as to the alteration of the)) final monitoring report.  ((The school district or other public agency shall, within thirty calendar days of receipt of the determination, provide the office of superintendent of public instruction a written action plan, if any, which results from that determination.

(5) The superintendent of public instruction or designee either shall approve the plan as submitted or shall request the school district or other public agency to make such modifications as are considered necessary.  Once an approvable plan has been submitted, the district or other public agency shall be provided written notice of:

(a) Approval;

(b) The performance expected of the district or other public agency; and

(c) The schedule for periodic review or verification of the school district and other public agency's progress toward remediation of the instance(s) of noncompliance.))

(6) If the school district or other public agency ((fails to submit an approvable corrective action plan required in WAC 392-172-504(4) or)) fails to comply with a corrective action plan approved pursuant to WAC 392-172-504(5), the superintendent of public instruction or designee shall institute procedures to ((insure)) ensure corrective action ((or prompt response to a monitoring report)).  Such procedures may include one or more of the following:

(a) Verification visits by office of superintendent of public instruction staff 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 ((a)) 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) ((Withhold)) 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) ((Initiate)) Initiating request for office of superintendent of public instruction audit pursuant to WAC 392-172-508 through 392-172-518 which may result in the recovery of unlawfully received or expended state and/or federal special education funds.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-504, filed 10/11/95, effective 11/11/95.]

(1) The superintendent of public instruction may use five percent of the total state allotment in any fiscal year under Part B of the Individuals with Disabilities Education Act, or ((four)) five hundred ((fifty)) thousand dollars, whichever is greater, for administrative costs related to carrying out ((sections 612 and 613 of)) the IDEA and section 619 (including the coordination of activities under Part B of the IDEA with, and providing technical assistance, to other programs that provide services to special education students).  However, this amount cannot be greater than twenty-five percent of the state's total allotment for the fiscal year under Part B of the Individuals with Disabilities Education Act.

(2) Allowable costs for use of the five percent include:

(a) Administration of ((the)) state ((plan)) activities and for planning at the state level, including planning, or assisting in the planning, of programs or projects for the education of special education students;

(b) Approval, supervision, monitoring, and evaluation of the effectiveness of local programs and projects for the education of special education students;

(c) Technical assistance to districts with respect to the requirements of this chapter;

(d) Leadership services for the program supervision and management of special education activities for special education students; and

(e) Other state leadership activities and consultative services.

(3) The office of the superintendent of public instruction based on input from school districts may use the portion of its allocation it does not use for administration:

(a) For support services and direct services ((in accordance with the priority requirements of Part B)); and

(b) For the administrative costs of the state's monitoring activities and complaint investigations, to the extent that these costs exceed the administrative costs for monitoring and complaint investigations incurred during fiscal year 1985;

(c) The establishment and implementation of the mediation process required by this chapter, including providing for the costs of mediators and support personnel;

(d) To assist school districts in meeting personnel shortages;

(e) Activities at the state and local levels to meet the performance goals established by the state and to support the development and implementation of the state improvement plan under subpart 1 of Part D of the IDEA if the state receives funds under that subpart;

(f) To supplement other amounts used to develop and implement a state-wide coordinated services system designed to improve results for students and families, including special education students and their families, but not to exceed one percent of the amount received by the state under section 611 of the IDEA. This system must be coordinated with and, to the extent appropriate, build on the system of coordinated services developed by the state under Part C of the IDEA; and

(g) For subgrants to school districts for capacity-building and improvement.

(4) Based upon the availability of federal funds for any given fiscal year, the office of superintendent of public instruction may establish priorities in awarding subgrants to school districts for capacity-building and improvement on a competitive or targeted basis.

These federal funds are to be used by school districts to assist them in providing direct services and in making systemic change to improve results for special education students through one or more of the following:

(a) Direct services, including alternative programming for students who have been expelled from school, and services for students in correctional facilities, and students enrolled in state-operated or state-supported schools;

(b) Addressing needs or carrying out improvement strategies identified in the state's improvement plan under subpart 1 of Part D of the IDEA;

(c) Adopting promising practices, materials, and technology, based on knowledge derived from education research and other sources;

(d) Establishing, expanding, or implementing interagency agreements and arrangements between school districts and other agencies or organizations concerning the provision of services to special education students and their families; and

(e) Increasing cooperative problem-solving between parents and school personnel and promoting the use of alternative dispute resolution.

(((4))) (5) For the purposes of this section:

(a) "Direct services" means services provided to a special education student by the state directly, by contract, or through other arrangements; and

(b) "Support services" includes implementing the comprehensive system of personnel development, recruitment and training of hearing officers, mediators, and surrogate parents, and public information and parent training activities relating to free, appropriate public education for special education students.

(6) Of the funds the office of the superintendent of public instruction retains under this section, the office may use the funds directly, or distribute them to school districts on a competitive, targeted, or formula basis.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-506, filed 10/11/95, effective 11/11/95.]

(1) Except as provided under WAC 392-172-606, federal funds available for special education students under Part B of the Individuals with Disabilities Education Act, shall be used to supplement, and in no case supplant, federal, state and local funds (including funds that are not under the direct control of the state or local education agencies) expended for special education and related services provided to special education students.

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

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The superintendent of public instruction shall report to the United States Secretary of Education no later than February 1 of each year the number of special education students aged three through twenty-one residing in the state who are receiving special education and related services.  The superintendent shall submit the report on forms provided by the United States Secretary of Education.

(1) Information required in the report includes:

(a) The number of special education students receiving special education and related services on December 1 of that school year;

(b) The number of special education students aged three through five who are receiving free, appropriate public education;

(c) The number of those special education students aged six through seventeen and eighteen through twenty-one within each disability category, as defined in the definition of "special education students"; and

(d) The number of those special education students aged three through twenty-one for each year of age (three, four, five, etc.).

(2) For the purpose of this part, a student's age is the student's actual age on the date of the child count: December 1.

(3) The state superintendent may not report a student ((aged six through twenty-one)) under more than one disability category.

(4) If a special education student ((aged six through twenty-one)) has more than one disability, the superintendent shall report that student in accordance with the following procedure:

(a) A student with deaf-blindness and not reported as having a developmental delay must be reported under the category "deaf-blindness."

(b) A student who has more than one disability (other than deaf-blindness or developmental delay) must be reported under the category "multiple disabilities."

(5) The office of the superintendent of public instruction shall include in its report a certification signed by an authorized official of the agency that the information provided is an accurate and unduplicated count of special education students receiving special education and related services on the dates in question.

(6) The office of the superintendent of public instruction may include in its report special education students who are enrolled in a school or program that is operated or supported by a public agency, and that ((either)):

(a) Provides them with both special education and related services; ((or))

(b) Provides them only with special education if they do not need related services to assist them in benefiting from that special education; or

(c) In the case of special education students enrolled by their parents in private schools, provides them with special education or related services under WAC 392-172-232 et seq.

(7) The superintendent may not include special education students in its reports who:

(a) Are not enrolled in a school or program operated or supported by a public agency;

(b) Are not provided special education that meets state standards;

(c) Are not provided with a related service that they need to assist them in benefiting from special education;

(d) Are counted by the state's lead agency for Part ((H)) C services; or

(e) Are receiving special education funded solely by the federal government including students served by the U.S. Departments of Interior, Defense, or Education.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-510, filed 10/11/95, effective 11/11/95.]

(1) Each state that receives assistance under Part B of the IDEA shall provide for the collection and examination of data to determine if significant disproportionality based on race is occurring in the state with respect to:

(a) The identification of students as special education students, including the identification of students as special education students in accordance with a particular impairment described in this chapter; and

(b) The placement in particular educational settings of these students.

(2) In the case of a determination of significant disproportionality with respect to the identification of a student as a special education student, or the placement in particular educational settings of these students, the superintendent of public instruction shall provide for the review and, if appropriate, revision of the policies, procedures, and practices used in the identification or placement to ensure that the policies, procedures, and practices comply with the requirements of Part B of the IDEA.

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(1) The superintendent of public instruction or designee shall conduct fiscal/program audits of school district or other public agency special education programs.  The purposes of such audits shall be:

(a) To determine compliance or noncompliance with:

(i) A school district and other public agency's application(s) for state and federal excess cost funds;

(ii) The provisions of this chapter; and

(iii) Any supplemental federal conditions to funding as may now or hereafter exist.

(b) To establish a factual basis for:

(i) The recovery of unlawfully received or expended state or federal special education funds; or

(ii) The initiation of fund withholding proceedings.

(2) ((Preliminary audit report--Following an audit, a preliminary written audit report shall be submitted to the school district or other public agency for review and comment.  The preliminary audit report shall include, but not be limited to:

(a) Findings of noncompliance which could include comparisons to findings of noncompliance as a result of monitoring, if any; and

(b) Recommendations for remediation of any such instance(s) of noncompliance.

(3) The school district or other public agency shall have fifteen days after the date of its receipt of the preliminary audit report to provide the superintendent of public instruction or designee a written reply setting forth any supplemental arguments and/or facts that may serve as a basis for alteration of the preliminary finding(s) of noncompliance.

(4) Final audit report--A final written audit report shall be provided to the school district or other public agency after review of the supplemental arguments and/or facts submitted by the district or other public agency.  The final audit report shall include, but not necessarily be limited to:

(a) Findings of noncompliance, if any; and

(b) Recommendations for remediation of any such instance(s) of noncompliance.

(5) The school district or other public agency shall have fifteen days after the date of its receipt of the final audit report to provide the superintendent of public instruction or designee a written 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 remedy the instance(s) of noncompliance.

(6) The superintendent of public instruction or designee shall either approve the plan as submitted or request the school district or other public agency to make such modifications as are considered necessary.  Once an approvable plan has been submitted the district or other public agency shall be provided written notice of:

(a) Approval;

(b) The performance expected of the district or other public agency; and

(c) The schedule for periodic review or audit of the school district and other public agency's progress toward remediation of the instance(s) of noncompliance.)) The superintendent of public instruction shall comply with WAC 392-115 in the resolution of all audits.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-512, filed 10/11/95, effective 11/11/95.]

(1) In the event a school district or other public agency fails to submit an approvable ((remediation)) corrective action plan required by (( WAC 392-172-512)) WAC 392-115, audit resolution, or fails to submit an approvable corrective action plan pursuant to WAC 392-172-504, monitoring, or fails to comply with a ((remediation)) corrective action plan approved pursuant to chapter 392-115 WAC ((392-172-512)) or fails to comply with a corrective action plan pursuant to WAC 392-172-504, the superintendent or designee shall provide the school district or other public agency notice which complies with RCW 34.05.434 of:

(a) Intent to withhold a specified amount of state and/or federal special education funds; and

(b) The school district and other public agency's opportunity for a hearing before the superintendent of public instruction or designee prior to commencement of the withholding.

(2) Funds may be withheld in whole or part in the event the district or other public agency fails to request a hearing or the hearing decision upholds the final audit or monitoring in whole or part.  ( RCW 28A.155.100.)

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-514, filed 10/11/95, effective 11/11/95.]

(((1) If a preliminary audit conducted pursuant to WAC 392-172-512 indicates that a district or other public agency has unlawfully received and/or expended either state or federal special education funds, the superintendent of public instruction or designee shall provide the school district or other public agency with an opportunity for an informal conference prior to the final audit report.

(2) If the final audit report sets forth one or more instances of unlawful receipt or expenditure of either state or federal special education funds, the superintendent of public instruction or designee shall take such action as he or she deems necessary to recover the funds including, but not limited to, a reduction in future allocations of any amount of any state funds and/or any amount of federal special education funds to the district or other public agency.

(3) No right to a hearing in connection with the recovery of funds unlawfully received and/or expended is granted by this chapter.)) The superintendent of public instruction shall comply with the provisions of WAC 392-115 in the event an audit conducted pursuant to WAC 392-172-512 indicates that a district or other public agency has unlawfully received and/or expended state or federal special education funds.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-516, filed 10/11/95, effective 11/11/95.]

In implementing the private school provisions of ((this chapter)) WAC 392-172-219 through 392-172-228, the state shall:

(1) Monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires;

(2) Disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a special education student; ((and))

(3) Provide an opportunity for those private schools and facilities to participate in the development and revision of state standards that apply to them; and

(4) Ensure that a special education student who is placed in or referred to a private school or facility by a school district or other public agency:

(a) Is provided special education and related services;

(i) In conformance with an IEP that meets the requirements of WAC 392-172-156 et seq.; and

(ii) At no cost to the parents;

(b) Is provided an education that meets the standards that apply to education provided by school districts and other public agencies, including the requirements of this chapter; and

(c) Has all of the rights of a special education student who is served by a school district or other public agency.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-520, filed 10/11/95, effective 11/11/95.]

The state shall ensure that to the extent consistent with their number and location in the state, provision is made for the participation of private school special education students in the program assisted or carried out under this chapter by providing them with special education and related services, in accordance with WAC 392-172-232 through 392-172-248.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-526, filed 10/11/95, effective 11/11/95.]

The superintendent of public instruction shall establish and implement procedures for developing and conducting a comprehensive system of personnel development ((which includes)) that:

(1) ((The continuing education of general and special education instructional services personnel;

(2) Detailed procedures to assure that all personnel necessary to carry out the purposes of the Individuals with Disabilities Education Act, P.L. 102-119, 34 CFR 300.1, as of October 1, 1992, are appropriately and adequately prepared;

(3) Provisions consistent with 34 CFR 300.153, 300.380 through 300.383, and 303.360;

(4) Effective procedures for acquiring and disseminating significant information derived from educational research, demonstration and similar projects; and

(5) The adoption, where appropriate, of promising educational practices and material developed through research, demonstration, and similar initiatives.)) Is consistent with the purposes of Part B of the Individuals with Disabilities Education Act and the Part C Program for Infants and Toddlers and with Disabilities;

(2) Is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel;

(3) Meets the requirements of 34 CFR 300.381 and 300.382; and

(4) Is updated at least every five years.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-550, filed 10/11/95, effective 11/11/95.]

The following definitions apply to this chapter:

(1) "Appropriate professional requirements in the state," those entry level requirements that are based on the highest requirements in the state applicable to the profession or discipline in which a person is providing special education or related services and that establish ((the)) suitable qualifications for personnel providing special education and related services under ((chapters 392-172 and 392-173 WAC)) Part B of the IDEA to special education children and youth ((with disabilities)) who are served by state, local, and private agencies;

(2) "Highest requirements in the state applicable to a specific profession or discipline," the highest entry-level academic degree needed for any state-approved or recognized certification, licensing, or registration or other comparable requirements that apply to that profession or discipline;

(3) "Profession or discipline," a specific occupational category that provides special education and related services to special education children and youth ((with disabilities)) under ((chapters 392-172 and 392-173 WAC)) Part B of the IDEA, has been established or designated by the state, and has a required scope of responsibility and degree of supervision((;)), and is not limited to traditional occupational categories;

(4) "Qualified" means that a person, in accordance with the provisions contained in 34 CFR ((300.153)) 300.136 of the Individuals with Disabilities Education Act, has met superintendent of public instruction approved or recognized certification, licensing, registration, or other comparable requirements for the profession or discipline in which the person is providing special education and related services; and

(5) "State-approved or state-recognized certification, licensing, registration, or other comparable requirements" means the requirements that the state legislature either has enacted or has authorized a state agency to promulgate through rules to establish the entry-level standards for employment in a specific profession or discipline in the state.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-552, filed 10/11/95, effective 11/11/95.]

The office of superintendent of public instruction shall complete an analysis of state and local needs for professional development for personnel to serve special education students that includes, at a minimum:

(1) The number of personnel providing special education and related services; and

(2) Relevant information on current and anticipated personnel vacancies and shortages (including the number of individuals with temporary certification), and on the extent of certification or retraining necessary to eliminate these shortages, that is based, to the maximum extent possible, on existing assessments of personnel needs.

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The office of superintendent of public instruction shall describe the strategies the state will use to address the needs identified under WAC 392-172-553. These strategies must include how the state will address the identified needs for in-service and preservice preparation to ensure that all personnel who work with special education students (including both professional and paraprofessional personnel who provide special education, general education, related services, or early intervention services) have the skills and knowledge necessary to meet the needs of special education students. The plan must include a description of how:

(1) The state will prepare general and special education personnel with the content knowledge and collaborative skills needed to meet the needs of special education students including how the state will work with other states on common certification criteria;

(2) The state will prepare professionals and paraprofessionals in the area of early intervention with the content knowledge and collaborative skills needed to meet the special education needs of infants and toddlers;

(3) The state will work with institutions of higher education and other entities that (on both a preservice and an in-service basis) prepare personnel who work with special education students to ensure that those institutions and entities develop the capacity to support quality professional development programs that meet state and local needs;

(4) The state will work to develop collaborative agreements with other states for the joint support and development of programs to prepare personnel for which there is not sufficient demand within a single state to justify support or development of such a program of preparation;

(5) The state will work in collaboration with other states, particularly neighboring states, to address the lack of uniformity and reciprocity in credentialing of teachers and other personnel;

(6) The state will enhance the ability of teachers and others to use strategies, such as behavioral interventions, to address the conduct of special education students that impedes the learning of special education students and others;

(7) The state will acquire and disseminate, to teachers, administrators, school board members, and related services personnel, significant knowledge derived from educational research and other sources, and how the state will, if appropriate, adopt promising practices, materials, and technology;

(8) The state will recruit, prepare, and retain qualified personnel, including personnel with disabilities and personnel from groups that are under-represented in the fields of regular education, special education, and related services;

(9) The plan is integrated, to the maximum extent possible, with other professional development plans and activities, including plans and activities developed and carried out under other federal and state laws that address personnel recruitment and training; and

(10) The state will provide for the joint training of parents and special education, related services, and general education personnel.

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Each school district or other public agency shall have on file with the office of superintendent of public instruction information to demonstrate that:

(1) All personnel necessary to carry out Part B of the IDEA within the jurisdiction of the school district or other public agency are appropriately and adequately prepared consistent with WAC 392-172-550 et seq.; and

(2) To the extent the school district or other public agency determines appropriate, it shall contribute to and use the comprehensive system of personnel development of the state established under WAC 392-172-550 et seq.

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((Before October 1st of each year,)) The special education section, on behalf of the superintendent of public instruction, shall review the professional requirements in the statutes necessary for the provision of special education and related services.  This professional standards review must include the requirements of all statutes and the rules of all state agencies applicable to serving special education students, and shall include the standards of the superintendent of public instruction, the department of licensing, the division of vocational rehabilitation, the department of social and health services, and any other public agency responsible for the licensing or certification of personnel who provide special education or related services.  In conducting this review, the superintendent of public instruction must:

(1) Determine the highest standards applicable to each profession or discipline based upon the most current information available to the superintendent of public instruction;

(2) Identify those professions or disciplines for which the highest requirements of the state apply;

(3) Identify those specific professions or disciplines for which the existing personnel standards for special education or related services, including standards for temporary or emergency certification are not based on the highest requirement in the state applicable to that specific profession or discipline; and

(4) For those professions or disciplines for which the highest requirements of the state do not apply, detail the steps the superintendent of public instruction is taking (and the procedures for notifying public agencies and personnel of those steps and the time lines it has established) for the retraining or hiring of personnel that meet the appropriate professional requirements in the state of Washington.  In determining ((annually)) the status of personnel standards for each applicable profession or discipline in the state (as defined in WAC 392-172-572), the superintendent of public instruction's review and determination must be based on current information that accurately describes, for each profession or discipline in which personnel are providing special education or related services, whether the applicable standards are consistent with the highest requirements in the state for that profession or discipline.

The results of the review conducted in accordance with the provision of this section shall be ((described in a report prepared for and)) submitted to the ((comprehensive system of personnel development committee.  Each annual report and necessary)) state advisory council for special education. Supporting documentation must be maintained in the files of the superintendent of public instruction's special education section and must be available to the public.  ((Each report shall be incorporated in the appropriate state plan for Part B of the Individuals with Disabilities Education Act submitted to the Department of Education.))

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-574, filed 10/11/95, effective 11/11/95.]

In implementing this section, the office of superintendent of public instruction has adopted a policy that includes a requirement that a school district or other public agency in the state make an ongoing good faith effort to recruit and hire appropriately and adequately trained personnel to provide special education and related services to special education students, including, in a geographic area of the state where there is a shortage of personnel that meet these qualifications, the most qualified individuals available who are making satisfactory progress toward completing applicable course work necessary to meet the standards under WAC 392-172-572, consistent with state law and the steps described in WAC 392-172-574, within three years.

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(1) The office of superintendent of public instruction shall establish goals for the performance of special education students that promote the purposes of the Individuals with Disabilities Education Act and are consistent, to the maximum extent appropriate, with the state's four learning goals and essential academic learning requirements for all students.

(2) In addition, the office of superintendent of public instruction shall establish performance indicators that shall be used to assess progress toward achieving those goals that at a minimum address the performance of special education students on assessments, dropout rates, and graduation rates.

(3) The office of superintendent of public instruction shall report to the U.S. Secretary of Education and the public every two years on the progress of the state and of special education students in the state toward meeting the goals established under this section. Based on its assessment of that progress, the office of superintendent of public instruction shall revise its state improvement plan under subpart 1 of Part D of the IDEA as may be needed to improve its performance, if the state receives assistance under that subpart.

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(1) The office of superintendent of public instruction shall file with the U.S. Secretary of Education information to demonstrate that special education students are included in general state and district-wide assessment programs, with appropriate accommodations and modifications in administration if necessary.

(2) As appropriate the office of superintendent of public instruction, school districts or other public agencies shall:

(a) Develop guidelines for the participation of special education students in alternate assessments for those students who cannot participate even with accommodations or modifications in state and district-wide assessment programs;

(b) Develop alternate assessments; and

(c) Begin not later than July 1, 2000, to conduct the alternate assessments.

(3) In implementing this section, the office of superintendent of public instruction shall make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled students, the following information:

(a) The number of special education students participating in:

(i) Regular assessments; and

(ii) Alternate assessments.

(b) The performance results of special education students:

(i) Participating in regular assessments; and

(ii) On alternate assessments (not later than July 1, 2000,) if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual students.

(4) Reports to the public must include:

(a) Aggregated data that include the performance of special education students together with all other students; and

(b) Disaggregated data on the performance of special education students.

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(1) Annually, school districts or other public agencies shall report to the state on the rates of long-term suspensions and expulsions of special education students and nondisabled students for the preceding school year. The state shall examine this data to determine if significant discrepancies are occurring:

(a) Among school districts or other public agencies; or

(b) Between nondisabled students and special education students within school districts or other public agencies.

(2) If discrepancies are occurring, the state shall review and if appropriate, require revisions in state, school district or other public agency policies, procedures, and practices to ensure compliance with Part B of the IDEA.

(3) Policies, procedures, and practices to be reviewed and, if appropriate, revised include:

(a) The development and implementation of individualized education programs;

(b) The use of behavioral interventions; and

(c) Procedural safeguards.

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As a condition to the receipt and expenditure of federal special education funds, a school district or other public agency shall annually submit ((an application)) a request to the superintendent of public instruction or designee on or before an announced date and conduct its special education and related services program in compliance with the school district and other public agency's state approved plan.  The ((applications)) request shall be made on forms developed and distributed by the superintendent or designee.  ((Application)) Request forms shall include, but not be limited to, the following assurance(s) and types of information:

(1) Assurance that:

(a) The school district or other public agency is in compliance with the provisions of this chapter and the rules implementing Part B of Individuals with Disabilities Education Act (34 CFR 300.1 et seq.) that may supplement this chapter, including procedural safeguards;

(b) The district or other public agency shall remain in compliance with this chapter and any such supplemental rules for the entire school year; and

(c) The funds applied for shall be expended in compliance with the ((application)) request, this chapter, and any such supplemental federal rules, including excess cost, nonsupplanting, and comparable services;

(2) The information and assurances required by 34 CFR 300.220 through 34 CFR ((300.240)) 300.250 and any other pertinent federal rules ((including 34 CFR 76.650 through 76.662));

(3) Identification of the local district or other public agency designee responsible for child identification activities and confidentiality of information;

(4) A description of the policies, procedures and/or activities to be implemented or continued to provide for:

(a) Identification, location and evaluation (childfind) of special education students ((not currently receiving special education and related services)) including students in private schools;

(b) Confidentiality of personally identifiable information;

(c) Implementation of a system for personnel development;

(d) Involvement of parents of special education students, including the participation of non-English speaking parents;

(e) Participation of special education students with students without disabilities;

(f) Delivery of services to special education students in the least restrictive environment;

(g) Development of individualized education programs for each eligible special education student;

(h) Availability of career development and vocational education programs for special education students;

(i) A description of the numbers and types of special education students receiving special education and related services by placement option within the school district and other public agency's continuum of alternative placements;

(j) A goal ((of)) and detailed timetable for providing full educational opportunity to all special education students, aged birth through twenty-one;

(k) ((A description of the kind of and number of facilities, personnel, and services necessary to meet the school district and other public agency's full educational opportunity goal, including a detailed timetable for reaching that goal;

(l))) Transition of students from Part C to preschool programs;

(l) Private school students;

(m) Performance goals and indicators;

(n) Participation in assessments and reporting results;

(o) Suspension and expulsion; and

(p) A description of the use of funds received under Part B of the Individuals with Disabilities Education Act (34 CFR 300.1 et seq.)((; and

(m) A description of procedures, with parent/family involvement, for annually evaluating program effectiveness, including individualized education programs)).

(5) Any other pertinent information requested by the superintendent of public instruction which is necessary for the management of the special education program.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-580, filed 10/11/95, effective 11/11/95.]

The superintendent of public instruction may require districts to submit a collaborative ((application)) request for payments under Part B of the Individuals with Disabilities Education Act if it is determined that a single district or other public agency ((application)) would be disapproved because:

(((1) The school district and other public agency's entitlement is less than the seven thousand five hundred dollar minimum required; or

(2))) The district or other public agency is unable to establish and maintain programs of sufficient size and scope to effectively meet the educational needs of special education students.  Districts that apply for Part B funds in a collaborative ((application)) request must meet the same minimum requirements as a single district or other public agency applicant.  The ((application)) request must be signed by the superintendent of each participating school district or other public agency.  The districts are jointly responsible for implementing programs receiving payments under Part B of the Individuals with Disabilities Education Act. The total amount of funds made available to the affected school districts or other public agencies shall be equal to the sum each would have received separately.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-582, filed 10/11/95, effective 11/11/95.]

If a school district or other public agency has on file with the office of superintendent of public instruction polices and procedures that demonstrate that the school district or other public agency meets any requirement under WAC 392-172-580, including any policies and procedures filed under Part B of the IDEA as in effect before June 4, 1997, the office of superintendent of public instruction shall consider the school district or other public agency to have met the requirement for purposes of receiving Part B funds.

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(1) ((The steps in the review process include:

(a) Submission by the district or other public agency of the application to educational service district special education director;

(b) The educational service district director of special education will review the application using the state checklist; and

(c) The educational service district director of special education will forward the application to office of the superintendent of public instruction for review by program supervisors using state checklist and for final approval by the superintendent's designee.)) Requests for Part B funding shall be submitted to the office of superintendent of public instruction for review by program supervisors using state checklist and for final approval by the superintendent's designee.

(2) Prior to making a final decision on ((an application)) a request for Part B funding, office of superintendent of public instruction staff shall consider any decision resulting from a hearing under WAC 392-172-350 that is adverse to the district or other public agency involved in the decision.

(3) If a district or other public agency makes a significant amendment to its ((application)) policies and procedures, the district or other public agency must follow the same steps it took for submitting its original ((application)) request.  The review and approval process shall be the same as that used for an initial request for funds under Part B of the Individuals with Disabilities Education Act.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-584, filed 10/11/95, effective 11/11/95.]

(1) Policies and procedures submitted by a school district or other public agency, in accordance with WAC 392-172-580, shall remain in effect until a school district or other public agency submits to the office of superintendent of public instruction modifications that a district or agency decides are necessary.

(2) The office of superintendent of public instruction may require a school district or other public agency to modify its policies and procedures, but only to the extent necessary to ensure a district's or agency's compliance with Part B of the IDEA, if:

(a) After June 4, 1997, the provisions of the IDEA or its implementing regulations are amended;

(b) There is a new interpretation of the IDEA by federal or state courts; or

(c) There is an official finding of noncompliance with federal or state law or regulations.

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Each district or other public agency shall:

(1) Make ((the application)) policies and procedures, any evaluations, periodic program plans, and reports relating to the Part B program available for public inspection; and

(2) Provide reasonable opportunities for the participation by teachers, parents of special education students, families ((and)), other interested agencies, organizations, and individuals in the planning for and operation of the Individuals with Disabilities Education Act Part B program as an integral part of the overall school program; and

(3) At a minimum, a school district and other public agency's procedures must describe the steps taken to:

(a) Make ((the application)) policies and procedures and any required evaluations, plans, and reports available to the public; and

(b) Involve the required constituency groups, as noted above, in the planning and operation of the Part B program.  Parental participation in the individualized education program process does not constitute involvement in the planning and operation of the program.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-588, filed 10/11/95, effective 11/11/95.]

(1) In the event the superintendent of public instruction or designee proposes to deny, in whole or part, the ((annual application)) request of a district or other public agency for federal special education funds, the district or other public agency shall be provided notice pursuant to RCW 34.05.434 of:

(a) Intent to deny the ((application)) request of the district or other public agency; and

(b) The school district and other public agency's opportunity for a hearing before the superintendent of public instruction or designee prior to a denial of the ((application)) request.

(2) The superintendent of public instruction shall provide an opportunity for a hearing before the office of superintendent of public instruction disapproves the ((application)) request in accordance with the following procedures:

(a) The applicant shall request the hearing within thirty days of the action of the superintendent of public instruction.

(b) Within thirty days after it receives a request, the superintendent of public instruction shall hold a hearing on the record and shall review its action.

(c) No later than ten days after the hearing the office of superintendent of public instruction shall issue its written ruling, including findings of fact and reasons for the ruling.  If supported by substantial evidence, findings of fact by the superintendent of public instruction are final.

(3) If the office of superintendent of public instruction determines that its action was contrary to state or federal statutes or regulations that govern the applicable program, the action shall be rescinded.

(4) If the superintendent of public instruction does not rescind its final action after a review, the applicant may appeal to the United States Secretary of Education.  The applicant shall file a notice of the appeal with the United States Secretary of Education within twenty days after the applicant has been notified by the superintendent of public instruction of the results of the agency's review.

(5) The superintendent of public instruction shall make available at reasonable times and places to each applicant all records pertaining to any review or appeal an applicant is pursuing under this section, including records of other applicants.

(6) The school district and other public agency's ((application)) request may be denied, in whole or part, if the district or other public agency fails to request a hearing or the hearing decision upholds the proposed basis for denial.

(7) Any school district or other public agency in receipt of a notice described in this section shall, by means of a public notice, take the measures necessary to bring a pending action pursuant to this section to the attention of the public within its jurisdiction.

[Statutory Authority: RCW 28A.155.  95-21-055 (Order 95-11), § 392-172-590, filed 10/11/95, effective 11/11/95.]

(1) The superintendent of public instruction and districts shall keep records that show:

(a) The amount of funds under the grant;

(b) How the funds were used;

(c) The total cost of the project;

(d) The share of that cost provided from other sources; and

(e) Other records to facilitate an effective audit.

(2) Records shall be maintained to show program compliance, including records related to the location, evaluation and placement of special education students and the development and implementation of individualized education programs. Program and fiscal information records shall be available to authorized representatives of the office of superintendent of public instruction for the purpose of compliance monitoring under WAC 392-172-504 or auditing under WAC 392-172-512.

(3) Records shall be retained for five years after completion of the activities for which grant funds were used.

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The school district or other public agency must have on file with the state information to demonstrate that amounts provided under Part B of the IDEA:

(1) Will be expended in accordance with the applicable provisions of this chapter;

(2) Will be used only to pay the excess costs of providing special education and related services to special education students, consistent with this chapter; and

(3) Will be used to supplement state, local and other federal funds and not to supplant those funds.

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In general, federal Part B funds are to be used for eligible special education students birth through twenty-one years of age. Federal preschool funds under section 619 may only be used for eligible special education children aged three through five years.

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(1) Except as provided under WAC 392-172-615 and 392-172-620, funds provided to school districts or other public agencies under Part B of the IDEA may not be used to reduce the level of expenditures for the education of special education students made by it from local funds below the level of those expenditures for the preceding fiscal year.

(2) Except as provided in subsection (3) of this section, the office of superintendent of public instruction determines that a school district complies with this section for purposes of establishing the school district's eligibility for an award for a fiscal year if the district budgets, for the education of special education students, at least the same total or per-capita amount from either of the following sources as the district spent for that purpose from the same source for the most recent prior year for which information is available:

(a) Local funds only.

(b) The combination of state and local funds.

(3) A district that relies on subsection (2)(a) of this section for any fiscal year must ensure that the amount of local funds it budgets for the education of special education students in that year is at least the same, either in total or per capita, as the amount it spent for that purpose in:

(a) The most recent fiscal year for which information is available, if that year is, or is before, the first fiscal year beginning on or after July 1, 1997; or

(b) If later, the most recent fiscal year for which information is available and the standard in subsection (2)(a) of this section was used to establish its compliance with this section.

(4) The office of superintendent of public instruction may not consider any expenditures made from funds provided by the federal government for which the office of superintendent of public instruction is required to account to the federal government or for which the district is required to account to the federal government directly or through the office of superintendent of public instruction in determining a district's compliance with the requirement of this section.

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A school district or other public agency may reduce the level of expenditures made by it under Part B of the IDEA below the level of those expenditures for the preceding fiscal year if the reduction is attributable to:

(1) The voluntary departure, by retirement or otherwise, or departure for just cause, of special education or related services personnel, who are replaced by qualified, lower-salaried staff;

(2) A decrease in the enrollment of special education students;

(3) The termination of the obligation of the district or agency, consistent with this chapter, to provide a program of special education to a particular special education student that is an exceptionally costly program as determined by the state, because the student:

(a) Has left the jurisdiction of the district or agency;

(b) Has reached the age at which the obligation of the district or agency to provide a free appropriate public education to the student has terminated; or

(c) No longer needs the program of special education.

(4) The termination of costly expenditures for long-term purchases such as the acquisition of equipment or the construction of school facilities.

(5) In order for a school district to invoke the exception in subsection (1) of this section, the district must ensure that those voluntary retirements or resignations and replacements are in full conformity with:

(a) Existing school board policies in the agency;

(b) The applicable collective bargaining agreement in effect at that time; and

(c) Applicable state statutes.

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(1) For any fiscal year in which federal funds for IDEA-B exceeds $4.1 billion dollars, a school district or other public agency may treat as local funds up to twenty percent of the amount of funds it receives under Part B of the IDEA that exceeds the amount it received under Part B of the IDEA for the previous fiscal year. The requirements regarding supplanting and maintenance of effort do not apply with respect to the amount that may be treated as local funds under this section.

(2) If the state determines that a school district or other public agency is not meeting the requirements of this chapter, the state may prohibit the district or agency from treating funds received under Part B of the IDEA as local funds under this section for any fiscal year, but only if it is authorized to do so by the state constitution or a state statute.

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(1) A school district or other agency may use funds received under Part B of the IDEA for any fiscal year to carry out a school-wide program under section 1114 of the Elementary and Secondary Education Act of 1965, except that the amount used in any school-wide program may not exceed:

(a) The amount received by the district or agency under Part B for that fiscal year; divided by the number of special education students in the jurisdiction; multiplied by

(b) The number of special education students participating in the school-wide program.

(2) The funds described in subsection (1) of this section may be used without regard to WAC 392-172-600(1).

(3) The funds described in subsection (1) of this section must be considered as federal Part B funds for purposes of calculating excess cost and supplanting.

(4) Except as provided in subsections (2) and (3) of this section, all other requirements of Part B must be met, including ensuring that special education students in school-wide program schools:

(a) Receive services in accordance with a properly developed IEP; and

(b) Are afforded all of the rights and services guaranteed to special education students under the IDEA.

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(1) Funds provided to a school district or other public agency under the IDEA-B may be used for the costs of special education and related services and supplementary aids and services provided in a regular class or other education related setting to a special education student in accordance with the individualized education program of the student, even if one or more nondisabled students benefit from these services; and/or

(2) To develop and implement a fully integrated and coordinated services system in accordance with WAC 392-172-635.

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(1) A school district or other public agency may not use more than five percent of the amount the district or agency receives under Part B of the IDEA for any fiscal year, in combination with other amounts (which must include amounts other than education funds), to develop and implement a coordinated services system designed to improve results for students and families, including special education students and their families.

(2) In implementing a coordinated services system under this section, a school district or other public agency may carry out activities that include:

(a) Improving the effectiveness and efficiency of service delivery, including developing strategies that promote accountability for results;

(b) Service coordination and case management that facilitate the linkage of individualized education programs under Part B of the IDEA and individualized family services plans under Part C of the IDEA with individualized service plans under multiple federal and state programs, such as Title I of the Rehabilitation Act of 1973 (vocational rehabilitation), Title XIX of the Social Security Act (Medicaid) and Title XVI of the Social Security Act (supplementary security income);

(c) Developing and implementing interagency financing strategies for the provision of education, health, mental health, and social services, including transition services and related services under the IDEA; and

(d) Interagency personnel development for individuals working on coordinated services.

(3) If a school district or other public agency is carrying out a coordinated services project under Title XI of the Elementary and Secondary Education Act of 1965 and a coordinated project under Part B of the IDEA in the same schools, the district or agency shall use the amounts under this section in accordance with the requirements of that title.

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(1) The state may grant authority to a school district or other public agency to permit a public school (through a school-based standing panel) to design, implement, and evaluate a school-based improvement plan for a period not to exceed three years.

(2) A school district or other public agency may use Part B funds to permit a public school within its jurisdiction to implement a school-based improvement plan. The plan must be consistent with the purposes described in section 651(b) of the IDEA (state program improvement grants). These purposes include reforming and improving state systems for providing educational, early intervention, and transitional services. The systems involved include professional development, technical assistance, and the dissemination of knowledge about best practices to improve results for students with disabilities.

(3) The plan must be designed to improve results for all special education students and, as appropriate, for other students consistent with WAC 392-172-630.

(4) If the state grants the authority to a school district or other public agency to develop a plan, the district or agency must have the sole responsibility of oversight of all activities relating to the design, implementation, and evaluation of any school-based improvement plan that a public school is permitted to design under this section.

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(1) A school-based improvement plan described in WAC 392-172-640 is for those students who attend the school for which the plan is designed and implemented.

(2) The plan must:

(a) Be designed, evaluated, and as appropriate, implemented by a school-based standing panel established in accordance with WAC 392-172-650;

(b) Include goals and measurable indicators to assess the progress of the public school in meeting these goals; and

(c) Ensure that all special education students receive the services described in their individualized education programs.

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A school district or other public agency that is granted authority under WAC 392-172-640 to develop a plan shall:

(1) Select each school under the jurisdiction of the district or agency that is eligible to design, implement, and evaluate the plan;

(2) Require each school selected in accordance with criteria established by the district or agency to establish a school-based standing panel to carry out the duties described in WAC 392-172-645;

(3) Establish:

(a) Criteria that must be used by the district or agency in the selection of an eligible school;

(b) Criteria that must be used by an eligible public school in the establishment of a school-based standing panel to carry out the duties described in WAC 392-172-645 that ensure that the membership of the panel reflects the diversity of the community in which the public school is located and includes, at a minimum:

(i) Parents of special education students who attend a public school, including parents of special education students from unserved and underserved populations, as appropriate;

(ii) Special education and general education teachers of public schools;

(iii) Special education and general education administrators, or the designee of those administrators, of those public schools; and

(iv) Related services providers who are responsible for providing services to the special education students who attend those public schools.

(c) Criteria that must be used by the district or agency with respect to the distribution of funds under Part B of the IDEA to carry out this section.

(4) Disseminate the criteria to local school district personnel and local parent organizations within the jurisdiction of the district or agency;

(5) Require a public school that desires to design, implement, and evaluate a school-based improvement plan to submit an application at the time, in the manner and accompanied by the information, that the district or agency shall reasonably require; and

(6) Establish procedures for approval by the district or agency of a school-based improvement plan designed under Part B of the IDEA.

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A school-based improvement plan may be submitted to a district or agency, for approval only if a consensus with respect to any matter relating to the design, implementation, or evaluation of the goals of the plan is reached by the school-based standing panel that designed the plan.

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(1) In carrying out the requirements of WAC 392-172-640 et seq., a school district or other public agency shall ensure that the parents of special education students are involved in the design, evaluation, or if appropriate, implementation of school-based improvement plans in accordance with this section.

(2) A district or agency may approve a school-based improvement plan of a public school within its jurisdiction for a period of three years if:

(a) The approval is consistent with the policies, procedures, and practices established by the district or agency in accordance with WAC 392-172-640 et seq.; and

(b) A majority of the parents of students who are members of the school-based standing panel and a majority of other members of the school-based standing panel that designed the plan, agree in writing to the plan.

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If a public school within the jurisdiction of a school district or other public agency meets the applicable requirements and criteria described in this section, at the expiration of the three-year approval period, the district or agency may approve a school-based improvement plan of the school for an additional three-year period.

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     The following sections of the Washington Administrative Code are repealed:

WAC 392-172-060	Definition--Transition services.
WAC 392-172-062	Definition of terms related to transition services.
WAC 392-172-110	Communication disordered students--Evaluation.
WAC 392-172-152	Summary analysis of evaluation data.
WAC 392-172-154	School district or other public agency decision on eligibility.
WAC 392-172-168	Required student participation--Transition.
WAC 392-172-178	Preschool services.
WAC 392-172-206	Facilities.
WAC 392-172-214	Administration of medication.
WAC 392-172-216	Choice and running start programs.
WAC 392-172-228	Out-of-state agencies.
WAC 392-172-234	School district or other public agency responsibility for private school special education students.
WAC 392-172-236	Determination of needs, numbers of students and types of services.
WAC 392-172-320	Authority.
WAC 392-172-322	Purpose.
WAC 392-172-340	Complainant right to appeal.
WAC 392-172-346	Appeal to the secretary of education in complaints against the superintendent of public instruction.
WAC 392-172-358	Prospective application to amendments in Washington Administrative Code affecting hearings.
WAC 392-172-372	Disciplinary exclusion--Procedures, continuing district or other public agency responsibility.
WAC 392-172-374	Disciplinary exclusion--Determination of disability relatedness and/or appropriateness of program.
WAC 392-172-376	Disciplinary exclusion--Definition significant change of placement.
WAC 392-172-378	Disciplinary exclusion--Determination of what constitutes a pattern of exclusion.
WAC 392-172-380	Emergency exclusion--Dangerous students.
WAC 392-172-382	Disciplinary exclusion--Bringing a firearm to school.
WAC 392-172-554	Scope of system.
WAC 392-172-556	Establishment of a comprehensive system of personnel development advisory committee.
WAC 392-172-558	Annual needs assessment.
WAC 392-172-560	Data system on personnel and personnel development.
WAC 392-172-562	Other sources of annual needs assessment data.
WAC 392-172-564	Report of current and projected personnel needs.
WAC 392-172-566	Administration of continuing education.
WAC 392-172-568	Personnel development plan.
WAC 392-172-570	Provision of technical assistance.
WAC 392-172-592	Records related to grant funds.
WAC 392-172-594	Program coordination.