WSR 09-01-157




[ Filed December 23, 2008, 10:00 a.m. ]

Subject of Possible Rule Making: Amending sections or adding new sections to chapter 392-172A WAC to address: (1) Adoption of new federal rules effective December 31, 2008; (2) amending existing rules regarding disproportionality; (3) amending rules addressing the use of federal proportional share of Part B funds on the site of religious schools; (4) amending sections relating to educational records consistent with federal changes governing the Family Educational Rights and Privacy Act, and (5) other sections will be amended to address housekeeping changes, including typographical errors and corrections to cross references. Possible sections for amendment include WAC 392-172A-01040, 392-172A-02090, 392-172A-03000, 392-172A-04015, 392-172A-04075, 392-172A-05095, 392-172A-05180 - 392-172A-05245; and subsections in 392-172A-06000 - 392-172A-07000 addressing district and state requirements for funding, technical assistance, monitoring and disproportionality.

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 28A.155.090(7); 20 U.S.C. 1400 et. seq. (the Individuals with Disabilities Education Act (IDEA)).

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The United States Department of Education issued final federal rules implementing IDEA on December 1, 2008, effective December 31, 2008. Those rules address revocation of consent after the initial provision of special education services; obligations to make positive efforts to employ qualified individuals with disabilities; state monitoring, technical assistance and reporting; district eligibility for funding; and nonattorney representation of parents and school districts in due process hearings. The state is seeking input on the rule addressing nonattorney representation in due process hearings, in response to the federal amendment requiring states to develop a rule; and input the rule regarding significant disproportionality, based on recent guidance and clarification from the United States Department of Education. The state is also seeking input on a possible amendment allowing the use of federal IDEA funds on site of private religious elementary and secondary schools. Currently, WAC 392-172A-04075 prohibits state or federal funds being used on site of religious schools. The United States Department of Education also released final regulations addressing the Family Educational Rights and Privacy Act, that are effective January 8, 2009. Rules addressing educational records may be amended, if necessary, to be consistent with those changes. Other amendments are required in order to be consistent with federal rules, or are housekeeping changes to correct typographical errors and correct cross-references.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: United States Department of Education, Office of Special Education Programs (OSEP).

Process for Developing New Rule: The office of superintendent of public instruction (OSPI) is seeking written comment from stakeholders.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by providing proposed language or comments to Dr. Doug Gill, Director of Special Education, OSPI, Old Capitol Building, P.O. Box 47200, Olympia, WA 98504-7200, phone (360) 725-6075, TTY (360) 586-0126, fax (360) 586-0247, or e-mail, or Please put the word "rulemaking" in the subject line.

December 22, 2008

Dr. Terry Bergeson

Superintendent of

Public Instruction

Washington State Code Reviser's Office