Original Notice.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule and Other Identifying Information: The Washington state center for childhood deafness and hearing loss (CDHL) is repealing chapter 148-171 WAC, which contains the rules for special education programs. The rules will be contained in new chapter 148-172 WAC, rules for the provision of special education. This new chapter incorporates changes required as a result of the office of superintendent of public instruction's (OSPI) repeal of chapter 392-172 WAC and adoption of chapter 392-172A WAC, to meet the requirements for receipt of federal funding under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004). Amending sections of chapter 148-120 WAC: WAC 148-120-100 student conduct violations which include rule defining harassment, intimidation and bullying, 148-120-205 limitations on disciplinary action, 148-120-314 aversive interventions. Creating new sections WAC 148-120-250 discipline procedures to follow the requirements in OSPI's rules; and WAC 148-120-260 requiring reentry meeting following suspension. Repealing sections in chapter 148-120 WAC which will be superseded by new section WAC 148-120-250 adopting by reference the requirements for discipline procedures in WAC 392-172A-05140 through 392-172A-05175.

     Hearing Location(s): Washington State Center for Childhood Deafness and Hearing Loss, 611 Grand Boulevard, Vancouver, WA 98661, on February 4, 2011, at 9:00 a.m.

     Date of Intended Adoption: February 4, 2011.

     Submit Written Comments to: Richard Hauan, Director, 611 Grand Boulevard, Vancouver, WA 98661, e-mail judy.smith@wsd.wa.gov, fax (360) 696-6291, by February 1, 2011.

     Assistance for Persons with Disabilities: Contact Judy Smith, Executive Assistant, by January 28, 2011, V/TTY (360) 696-6525.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the rule changes are to conform to the federal regulations that implement Part B of IDEA 2004 and OSPI's rules for the provision of special education. The new chapter incorporates federal regulations and required state procedures for implementing Part B of IDEA 2004, which include rules and procedures governing student discipline.

     Reasons Supporting Proposal: Federal regulations implementing Part B of IDEA 2004, effective July 5, 2006; and state regulations adopted in July 2007, apply these rules to the State School for the Deaf, under the supervision of CDHL, require these rules to be eligible for federal funding.

     Statutory Authority for Adoption: RCW 72.40.0191.

     Statute Being Implemented: 20 U.S.C. §§ 1400 et seq.; chapter 28A.155 RCW.

     Rule is necessary because of federal law, [no information supplied by agency].

     Name of Proponent: Washington state center for childhood deafness and hearing loss (CDHL), governmental.

     Name of Agency Personnel Responsible for Drafting: Bonnie Terada, AAG, Vancouver, Washington, (360) 759-2100; Implementation and Enforcement: Rick Hauan, Director, Washington State Center for Childhood Deafness and Hearing Loss, (360) 696-6525 x0400 V/TTY.

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

     A cost-benefit analysis is not required under RCW 34.05.328. CDHL is not one of the agencies required under RCW 34.05.028 [34.05.328] to complete the significant legislative analysis. In addition, this rule incorporates requirements contained in 20 U.S.C. §§ 1400 et seq.; 34 C.F.R. Part 300, chapters 28A.155 RCW and 392-172A WAC.

December 17, 2010

Richard Hauan

Director

OTS-3817.1

AMENDATORY SECTION(Amending WSR 01-20-032, filed 9/26/01, effective 10/27/01)

WAC 148-120-100   Conduct violations.   A student who, either as actor, aider, abettor, or accomplice, violates any provision of this chapter shall be subject to the disciplinary actions herein adopted. A student may be an accomplice, or found to have aided and abetted in the commission of a violation of the student conduct code if he or she knowingly associates with the wrongful purpose, undertaking or activity; encourages, promotes, or counsels another student in the commission of an offense, or participates in it as in something he or she desires to bring about, and seeks by his or her action to make it succeed.

     The following offenses are prohibited:

     (1) Physical abuse. Actual, attempted, or threatened physical abuse of any person or conduct which threatens or endangers the health and safety of any person or which intentionally causes a reasonable apprehension of harm to any person.

     (2) Destroying or damaging property. Destroying, defacing, or damaging school property or the property of others on school premises or at school-sponsored activities.

     (3) Sexual harassment. Engaging in unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:

     (a) Submission to the conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining an education;

     (b) Submission to or rejection of that conduct or communication by a person is used as a factor in decisions affecting that person's education;

     (c) That conduct or communication has the purpose or effect of substantially or unreasonably interfering with a person's education; or creating an intimidating, hostile, or offensive educational environment.

     Sexual harassment may include, but is not limited to: Unwelcome verbal harassment or abuse; unwelcome pressure for sexual activity; unwelcome, sexually motivated or inappropriate patting, pinching, or physical contact; unwelcome sexual behavior or words, including demands for sexual favors, accompanied by implied or overt threats concerning a person's educational status; or unwelcome behavior, verbal, signed, or written words or symbols directed ((an [at])) at a person because of gender.

     (4) Disruption. Disorderly, intimidating or abusive behavior which interferes with the rights of others, school, or school-sponsored activities; obstructing the free movement of people or vehicles; inciting others to engage in prohibited conduct; or threatening disruption.

     (5) Insubordination. Refusal or failure to follow instructions and proper orders of school officials, while on school property, during transportation to and from school, or at school-sponsored activities, thereby infringing upon the rights and privileges of others, and/or refusal to desist from prohibited conduct.

     (6) False alarms. Falsely setting off, improper use or disabling of any safety equipment, alarm, exit sign, or other device.

     (7) False information. Filing a formal complaint which falsely accuses another with violation of this chapter, altering or falsifying information to school officials, or forging or tendering any forged instrument to the school.

     (8) Theft. Actual or attempted theft of property or services belonging to the school, any student, school employee(([,])), or school visitor, including knowing possession of stolen property.

     (9) Academic dishonesty. All forms of cheating, plagiarism and fabrication, including submitting any work product that the student misrepresents as his or her work product for the purpose of fulfilling any assignment or task required as part of the student's course of studies.

     (10) Conversion. Unauthorized use or possession of school equipment or services.

     (11) Unlawful entry and trespassing. Entering and/or remaining in any administrative or other employee office or any locked or otherwise closed school facility, in any manner, at any time, without permission.

     (12) Smoking. Students are not allowed to smoke or use tobacco products on school (([property] [premises])) premises or during school-sponsored activities.

     (13) Alcohol. Use, possession, distribution of, or visible intoxication from alcoholic beverages is prohibited on school property or at school-sponsored activities.

     (14) Drugs and controlled substances. Use, possession, distribution, or being visibly under the influence of any controlled substance (([or illegal drug])) or illegal drug as defined in WAC ((148-120-300)) 392-172A-05145(9), except when the use or possession of a drug is specifically prescribed as medication by an authorized medical doctor or dentist; possession of drug paraphernalia.

     (15) Weapons, lasers, and dangerous chemicals. Unauthorized use, possession, carriage, exhibition, or storage of any weapon, laser, explosives, ammunition, dangerous chemicals, substances or instruments, which is capable of causing bodily harm on another or damage upon school property or personal property, or any device that looks like or is alleged to be a firearm or explosive device.

     (16) Sexual violence. Sexual violence is a physical act of aggression or force or the threat thereof which involves the touching of another's intimate parts. Intimate parts include the primary genital area, groin, inner thighs, buttocks or breast, as well as the clothing covering these areas. Sexual violence may include, but is not limited to:

     (a) Touching, patting, grabbing or pinching another person's intimate parts, whether that person is of the same or the opposite sex;

     (b) Coercing, forcing, attempting to coerce or force the touching of anyone's intimate parts;

     (c) Coercing, forcing, attempting to coerce or force sexual intercourse or a sexual act on another;

     (d) Threatening to force or coerce sexual acts, including the touching of intimate parts or intercourse, on another; or

     (e) Threatening of forcing exposure of intimate apparel or body parts by removal of clothing.

     (17) Sexual activity and displays of affection. Sexual activity involves touching of another's intimate parts. Intimate parts include the primary genital area, groin, inner thighs, buttocks or breast, as well as the clothing covering these areas. Even if consensual or mutually agreed to, sexual activity is prohibited. Excessive displays of affection are not appropriate in school or at any school-related function. Prohibited conduct includes, but is not limited to: Any physical expression of affection that is intimate or sexual in nature, passionate or prolonged kissing, sexual touching, or fondling.

     (18) Pornography. Possession, distribution, display, creation or production of sexually explicit or erotic material. Sexually explicit material includes material defined in RCW 9.68.130. Erotic material includes material defined in RCW 9.68.050.

     (19) ((Malicious harassment. Harassment consists of verbal or physical conduct relating to a person's actual or perceived national origin, disability, race, sexual orientation, or religion, which has the purpose or effect of creating an intimidating, hostile or offensive academic, residential or work environment, or the purpose or effect of substantially or unreasonably interfering with a person's academic or work performance, or otherwise adversely affects a person's academic or work opportunities. Harassment may include: Name calling, gestures, bullying, mimicking, mocking, derogatory jokes, remarks or rumors, unwelcome touching of a person or clothing, offensive or graphic posters, book covers, notes or cartoons, graffiti, display or circulation of written materials or pictures, or any other malicious or insensitive conduct of a severe or pervasive nature directed at the characteristics of a person's national origin, customs, culture, disability, race, sexual orientation, or religion.)) Harassment, intimidation or bullying based on actual or perceived race, color, religion, ancestry, national origin, gender, gender identity, disability, socio-economic status, physical appearance, or other distinguishing characteristic. For purposes of this rule, harassment, intimidation, and bullying includes any intentionally written message or image, including those that are electronically transmitted including, but not limited to, sexting, which constitutes any threat of or act of physical, verbal, or emotional abuse, or attacks on the property of another, which has the effect of materially interfering with a student's education; is so severe, pervasive, or persistent, and objectively offensive as to threaten an individual or limit the individual's ability to work, study or participate in the activities of WSD, creates an intimidating or threatening education or residential environment, or has the effect of materially disrupting the orderly operation of the school or residential program.

     The term "sexting" as used in this rule means the sending, possession, displaying, or distribution of text messages and picture of an explicit sexual nature. Intentional acts refer to the individual's choice to engage in the act rather than the ultimate impact of the action(s).

     Harassment, intimidation, and bullying may include, but is not limited to, taunts, sexting, slurs, rumors, jokes, innuendos, demeaning comments, drawings, cartoons, pranks, gestures, ostracism, extortion of money, physical attacks, threats or other written, oral, physical or electronically transmitted messages or images.

     Harassment, intimidation, and bullying are often carried out through acts of misconduct, which are addressed and prohibited under other rules in this chapter.

     This rule does not prohibit the civil, respectful expression of religious or political views, provided that the expression does not materially disrupt the education environment.

     (20) Unauthorized absence. Absconding from supervision; leaving or running away from the campus, a residential facility, a school building, school activity or school-related function, or school-provided transportation without permission.

     (21) Gang activity. Claiming membership in, association with, affiliation with, or participation in a gang or gang-related activities at school ((or)), during school-related functions((. A gang is a self-formed association of peers having the following characteristics: A gang name and recognizable symbols, identifiable leadership, a geographic territory, a regular or recurrent meeting pattern, may be identified by law enforcement as a gang, and collective actions to engage in serious criminal, or violent behavior. The type of dress, apparel, activities, acts, behavior, or manner of grooming displayed, reflected, or participated in by a student shall not:

     (a) Lead school officials to reasonably believe that such behavior, apparel, activities, acts, or other attributes are gang-related, and would disrupt or interfere with the school environment or activity, and/or educational objectives;

     (b) Present a safety hazard to self, students, or staff;

     (c) Create an atmosphere in which a student, or other person's well-being is hindered by undue pressure, behavior, intimidation, overt gesture, or threat of violence; or

     (d) Imply gang membership or affiliation by written communication, marks, drawings, painting, design, emblem upon any school or personal property, or one's person)), or on any school property. "Gang" has the meaning given the term under RCW 28A.600.455. Prohibited dress, appearance and activities includes, but is not limited to: Clothing, accessories, personal items, or body markings, which symbolizes gang membership as reported by law enforcement agencies.

     (22) Extortion. Obtaining or attempting to obtain by threat or bribery, money, property or services (including sexual favors) of another. Threats include direct as well as indirect communication.

     (23) Hazing. Conspiring to engage in or participating in any method of initiation into a student organization or group, or any pastime or amusement engaged in with respect to such an organization or group that causes, or is likely to cause, bodily danger or physical harm, or serious mental or emotional harm, to any student. This does not include customary athletic events or other similar contests or competitions.

     (24) Misuse of computers, electronic data or electronic communications((.)), which may include, but is not limited to:

     (a) Unauthorized copying of school-owned or licensed software, copyrighted material, or another computer user's data for personal or external use((.));

     (b) Modifying or damaging, attempting to modify or damage, computer equipment, software, data bases, files needed in another person's school work, or communications lines;

     (c) Disrupting or attempting to disrupt computer operations;

     (d) Invading the privacy of another person by using electronic means to obtain confidential information, even if access to such information is inadvertently allowed;

     (e) Abusing, bullying, or harassing another person through electronic means;

     (f) Using the school's computing facilities in the commission of a crime or a violation of the student conduct code;

     (g) Using computer services without authorization;

     (h) Allowing another person to use one's computer identity/account or using another person's computer identity/account. This includes, but is not limited to, logging on to the account, accessing programs, and reading or altering computer records without authorization.

     (25) Other conduct. Any other conduct or action, the terms and violations of which are published annually in the student/parent handbook, in which the school can demonstrate a clear and distinct interest and which substantially threatens the educational process or other legitimate function of the school or the health or safety of any member of the school community is prohibited.

[Statutory Authority: RCW 72.40.011. 01-20-032, § 148-120-100, filed 9/26/01, effective 10/27/01. Statutory Authority: RCW 72.40.022. 94-13-058, § 148-120-100, filed 6/8/94, effective 7/9/94.]

     (2) Corporal punishment as defined by the ((board of education)) superintendent of public instruction in WAC ((180-40-235)) 392-400-235(4) as now or hereafter amended, is prohibited.

[Statutory Authority: RCW 72.40.022. 94-13-058, § 148-120-205, filed 6/8/94, effective 7/9/94.]

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[Statutory Authority: RCW 72.40.011. 01-16-100, § 148-120-314, filed 7/27/01, effective 8/27/01.]

     The following sections of the Washington Administrative Code are repealed:

WAC 148-120-220	Short-term suspension.
WAC 148-120-225	Short-term suspension -- Notice and conference -- Grievance procedure.
WAC 148-120-230	Long-term suspension.
WAC 148-120-234	Long-term suspension -- Misconduct not a manifestation of disability--Notice.
WAC 148-120-236	Long-term suspension -- Misconduct not a manifestation of disability -- Hearing.
WAC 148-120-300	Disciplinary exclusion--Definitions.
WAC 148-120-301	Change of placement for disciplinary removals.
WAC 148-120-302	Removals--Ten school days or less.
WAC 148-120-303	Required services.
WAC 148-120-304	Change of placement--Removals for weapons or drugs.
WAC 148-120-305	Functional behavioral assessment and intervention plan.
WAC 148-120-306	Dangerous behavior--Authority of hearing officer.
WAC 148-120-307	Determination of interim alternative educational setting.
WAC 148-120-308	Manifestation determination review requirements.
WAC 148-120-309	Procedures for conducting a manifestation determination.
WAC 148-120-310	Determination that behavior was not manifestation of disability.
WAC 148-120-311	Expedited due process hearings.
WAC 148-120-312	Placement during appeals.
WAC 148-120-415	Appeals -- Long-term suspension and expulsion.

OTS-3819.1

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

WAC 148-171-001	Purposes.
WAC 148-171-010	Definitions.
WAC 148-171-015	Definition and eligibility criteria for deafness and hearing impairment.
WAC 148-171-100	Initial assessment.
WAC 148-171-110	General areas of evaluation.
WAC 148-171-120	Evaluation procedures.
WAC 148-171-131	Evaluation report and documentation of determination of eligibility.
WAC 148-171-140	Independent educational evaluation.
WAC 148-171-150	Admission and placement--Annual review.
WAC 148-171-210	IEP meetings.
WAC 148-171-220	Participants in IEP meetings.
WAC 148-171-230	Parent participation and involvement.
WAC 148-171-240	Individualized education program.
WAC 148-171-242	Individualized education program--Implementation.
WAC 148-171-244	Individualized education program--Development, review, revision--Consideration of special factors.
WAC 148-171-410	Reevaluation.
WAC 148-171-500	When prior notice must be given.
WAC 148-171-510	Contents of prior written notice.
WAC 148-171-512	Parent consent.
WAC 148-171-514	Transfer of parental rights at age of majority.
WAC 148-171-550	Mediation.
WAC 148-171-601	Due process rights and procedures.
WAC 148-171-605	Request for hearing, notice by parent.
WAC 148-171-650	Surrogate parents.

OTS-3818.1

     (1) To implement chapter 72.40 RCW in a manner that is compatible with chapters 28A.155 RCW and 392-172A WAC, and in compliance with the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. Sec. 1400 et seq.; and

     (2) To meet the obligations of additional federal and state civil rights laws (e.g., 29 U.S.C. Sec. 794, 42 U.S.C. Sec. 12132, RCW 49.60.030) that apply to students who have a disability regardless of the student's eligibility for special education and related services.

     (3) Unless the context clearly requires otherwise, the rules for the provision of special education, contained in chapter 392-172A WAC, are incorporated by reference: Provided, That the Washington state center for childhood deafness and hearing loss (center) may undertake the responsibilities of a local educational agency (LEA) in providing a free appropriate public education only to the extent authorized by chapter 72.40 RCW and inclusion as an LEA makes the center eligible for assistance under the Individuals with Disabilities Education Act.

     (4) This chapter sets forth rules and procedures applicable to the provision of special education and related services for eligible students at the center. It should be read in conjunction with chapter 392-172A WAC. In case of any conflict between specific rules and procedures adopted herein, and the rules and regulations in chapter 392-172A WAC, the specific rules and procedures shall control.

     (5) Where the term "school district" is used in this chapter, it shall mean the LEA or local school district, as defined and described in RCW 28A.315.025, where a student would be enrolled and/or attending.

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     (2) An application packet for new students may be obtained by contacting the office of the superintendent at 360-696-6525 x0401 V/TTY, or through the link on the school's web site at http://www.wsd.wa.gov/about/admissions.aspx. Applications for admission shall include the reason(s) for referral.

     (3) WSD will assess the appropriateness of admission by first considering the student for evaluation in a diagnostic placement. A diagnostic placement allows school personnel to obtain necessary information about the student's needs and to evaluate how the student will fare in a placement at WSD. The diagnostic placement is limited to forty-five school days. A visit by the parent(s)/guardian(s) and student to WSD is required before a diagnostic placement is initiated.

     (4) WSD will request the following records from the student's current school district. All requested records must be received before the admissions team will consider and make a decision on the application for a diagnostic placement:

     (a) All completed forms and material in the application packet;

     (b) Student's most recent individualized education program (IEP);

     (c) Student's most recent triennial evaluation report;

     (d) All psychological records;

     (e) High school transcripts or academic records and report cards;

     (f) Records of all behavioral information, including history of criminal or violent behavior; past, current or pending disciplinary history; and other behavior that indicates the student could be a threat to the safety of staff and students; and information that would be required under RCW 28A.225.330. Any falsification of or withholding of information will result in the termination of the application process, the evaluation, or continued placement; and

     (g) Needs assessment inventory interview (NAII) and safety risk matrix completed by the parent(s).

     If access to necessary information requires parental or student consent for the exchange of information with a third party, all such written consents must be attached to the completed application.

     (5) If a student is deemed to pose a safety risk after review of the records submitted during the admissions process, the admissions team and/or the superintendent may:

     (a) Deny the application for diagnostic placement; or

     (b) Develop a safety plan designed to mitigate perceived safety risk(s).

     If the safety plan can be implemented within existing resources at WSD, the admissions team may accept the student for diagnostic placement. If all elements of the safety plan cannot be accomplished within existing resources at Washington school for the deaf, the application shall be denied unless additional resources which are needed to ensure the safety of the student, staff and other students can be provided through an interagency agreement with the LEA or other agency.

     (6)(a) Upon approval of the application for diagnostic placement, the admissions team will establish the beginning date of the diagnostic placement.

     (b) The LEA or school district is responsible for ensuring that the student's IEP and evaluations remain current and valid through the end of the diagnostic placement.

     (c) The admissions team will review the student's current IEP from the LEA or school district to ascertain whether any modifications should be considered or made for the purposes of the diagnostic placement. All modifications must be approved by the parent. Modifications to a student's educational program for the purposes of a diagnostic placement shall not constitute a change in placement for purposes of the Individuals with Disabilities in Education Act or stay-put under WAC 392-172A-05125.

     (d) The admissions team will provide prior written notification to the parent, LEA or school district that the diagnostic placement shall not exceed forty-five school days and shall not become the student's stay-put or current educational placement should the parent(s) or school district contest the decision on the student's educational placement at the conclusion of the diagnostic placement.

     (7) Residential program services may be available to a student during a diagnostic placement: Provided, That:

     (a) The student is accepted into the academic program for diagnostic purposes;

     (b) The residential program has space available and can provide the needed services;

     (c) A one-way commute by school bus is greater than sixty minutes; and

     (d) The student is able to finger-feed, chew and swallow most foods, indicated need for help when self-soiled or wet, and assist in self-dressing and bathing.

     (8) Prior to the end of the diagnostic placement timeline, the admissions team will meet to determine whether the student may be enrolled at WSD.

     (a) If enrollment is approved, one of the following options will occur:

     (i) The student's evaluation and IEP from the school district is reviewed and adopted following office of the superintendent of public instruction (OSPI) transfer procedures;

     (ii) The student's evaluation from the school district is reviewed and accepted following OSPI transfer procedures, and a new IEP is developed; or

     (iii) WSD will conduct a reevaluation and develop a new IEP.

     (b) If enrollment is denied, partnerships and interagency agreements with LEAs and school districts may be developed to support a student's educational placement at the school for the deaf when a lack of existing resources is a reason for denying enrollment. WSD does not constitute a potential stay-put placement for students who have been denied enrollment but may be receiving services at WSD pursuant to an interagency agreement.

     (9) Pursuant to RCW 72.40.040, WSD shall not admit and may not retain any student who is an adjudicated sex offender, classified level III pursuant to RCW 13.40.217 or 72.09.345. It is the policy of the school to deny admission to any student who has sexually abused, assaulted or victimized any student who is currently enrolled at WSD.

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