WSR 09-12-070




[ Filed May 29, 2009, 11:14 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-08-027.

Title of Rule and Other Identifying Information: Special, unavoidable circumstance appeals, WAC 392-501-700.

Hearing Location(s): Superintendent of Public Instruction, Brouillet Conference Room, 600 Washington Street, Olympia, WA 98504-7200, (360) 725-6130, on July 16, 2009, at 9:00 a.m.

Date of Intended Adoption: July 17, 2009.

Submit Written Comments to: Michael Middleton, P.O. Box 47200, Olympia, WA 98504-7200, e-mail, fax (360) 725-6333, by July 15, 2009.

Assistance for Persons with Disabilities: Contact Penny Coker by July 15, 2009, TTY (360) 664-3631 or (360) 725-6142.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Establish a permanent set of rules specific to the case of a select portion of special education students, designated as "awareness level" that are not appropriately served by the existing state assessment tools. The new rules provide for an alternative process to fulfill graduation requirements. Without the associated alternative, numbers of students in successive graduating classes will be denied diplomas due to an inability to access the state testing tools. Emergency rule adoption last spring and this spring ensured students in the Class of 2008 and 2009 were provided due process to allowing consideration of circumstances associated with the student's severity of disability.

Reasons Supporting Proposal: Establish a unique set of rules to govern graduation requirements of this specific student population.

Statutory Authority for Adoption: RCW 28A.655.061, 28A.655.065, and 28A.155.045.

Statute Being Implemented: WAC 392-501-700.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Office of superintendent of public instruction, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Michael Middleton, OSPI, (360) 725-6434.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not have a business-related economic impact.

A cost-benefit analysis is not required under RCW 34.05.328. Was not interpreted to need a cost-benefit analysis under governing law.

May 29, 2009

Randy I. Dorn

Superintendent of

Public Instruction


WAC 392-501-700   General description.   RCW 28A.155.045 authorizes the superintendent of public instruction to develop guidelines for waiving specific requirements in RCW 28A.655.061 pertaining to the graduation requirements and the state assessment system, and to determine appropriate assessment alternatives through which to assess identified students.


WAC 392-501-705   Eligibility and application requirements.   (1) A student, or a student's parent or guardian, may initiate a waiver request to the superintendent of public instruction if a student's cognitive development is identified at the awareness level. The waiver request can cover one or all state assessed content areas of study. Students with cognitive development at the awareness level exhibit behaviors that include, but are not limited to, the following:

(a) Having limited intentionality and being unable to communicate using presymbolic strategies.

(b) Reactions to environmental stimuli are limited to crying, opening eyes, movement, etc.

(c) Behavior not under the student's control but reflects a general physical state (e.g., hungry, wet, sleepy).

(d) Being conscious (awake) during limited times each day.

(e) Requiring parents, teachers, or other adults to interpret the child's state from behaviors such as sounds, body movements, and facial expressions.

(f) Other criteria as defined by the superintendent of public instruction's guidelines posted to the agency web site.

(2) For a student requesting a waiver under this section, the student must have the following documented in his or her records:

(a) The student is in high school and is designated as being in the 11th or 12th grade.

(b) The individualized education program (IEP) team as identified under WAC 392-172A-03095, through an evaluation of the student's behaviors and educational history, determines that the student is functioning at the awareness level (as defined in subsection (1) of this section).

(3) Filing a waiver request requires the use of a specific form developed by the superintendent of public instruction. Completing the waiver request requires:

(a) The special education teacher responsible for the IEP of the student to complete and sign the awareness waiver application and document the student's nonparticipation in the state assessment system in the student's IEP.

(b) The waiver application is submitted to the district's special education director for review, verification, and signature.

(c) Upon verification, the district special education director files the waiver application form with the district assessment coordinator.

(d) The district assessment coordinator reviews, signs, and transmits the waiver application to the superintendent of public instruction per instruction listed on the form.

(e) Staff from the office of superintendent of public instruction shall record a status of "waived" in the state data base, then transmit a confirmation e-mail to the student's high school principal and the district assessment coordinator.

(f) The school shall complete all necessary school and district documentation, including but not limited to, IEP documentation.


Washington State Code Reviser's Office