WSR 15-14-128 PROPOSED RULES SUPERINTENDENT OF PUBLIC INSTRUCTION [Filed July 1, 2015, 10:35 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-07-062.
Title of Rule and Other Identifying Information: Amending, adding, and repealing sections of chapter 392-172A WAC, Rules for the provision of special education, to address changes made to chapter 28A.155 RCW under SHB 1240, which is effective July 24, 2015. SHB 1240 removed the term "aversive interventions" from RCW 28A.155.020 and added "positive behavior interventions" to the list of definitions the office of superintendent of public instruction (OSPI) should provide by rule. In addition, section 3 of SHB 1240 includes specific references to the requirements for using restraint and isolation specific to students eligible for special education. Existing statutes, RCW 28A.155.210 and 28A.600.486, also contain requirements for notification to parents of the policies and procedures addressing restraint and isolation. These requirements are clarified in the proposed rules. OSPI is also proposing to repeal sections of the regulations addressing aversive interverntions [interventions] and adding rules to conditions under which restraint and isolation may be addressed as part of a student's IEP. OSPI is also proposing to amend WAC 392-172A-05125 (regarding a student's status during proceedings) so that it is consistent with federal rules, and to make other changes to correct typographical errors or make rule changes that are technical in nature.
Hearing Location(s): OSPI, Brouillet Conference Room, Room 430, 4th Floor, 600 Washington Street S.E., Olympia, WA 98504, on August 13, 2015, at 10 a.m.
Date of Intended Adoption: August 19, 2015.
Submit Written Comments to: Douglas H. Gill, Assistant Superintendent, Special Education, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, Attn: Special Education Section, e-mail speced@k12.wa.us (please put "2015 Rulemaking" in the subject line), fax (360) 786-0247, by August 13, 2015.
Assistance for Persons with Disabilities: Contact Kristin Murphy by July 31, 2015, TTY (360) 786-0126 or (360) 725-6133.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to amend the special education rules so that parents of students eligible for special education, local educational agencies, and other entities responsible for providing services to students eligible for special education are familiar with the conditions under which restraint and isolation may be used. In addition, OSPI is repealing rules that provided for the use of aversive interventions, including protections for students. The effect of changes to WAC 392-172A-05125 clarifies that a change of placement is treated as an agreement between the school district and parents, when an administrative law judge orders the change as a result of a hearing decision. This change is consistent with federal law.
Reasons Supporting Proposal: OSPI is required to make amendments to its special education regulations regarding the use of aversive interventions and address the limited conditions under which restraint and isolation may be used, due to the statutory changes to RCW 28A.155.020 and 28A.600.485 under SHB 1240. While many of the changes to RCW 28A.600.485 address all students, there are also requirements that are specific to students eligible for special education. Therefore, some of the definitions that may be common to all students are addressed in the proposed special education regulation changes. In addition the proposed rules are intended to address advanced educational planning, to allow students to receive a free appropriate public education. The current language in WAC 392-172A-05125 is not consistent with federal regulations addressing a student's stay put placement and require clarification.
Statutory Authority for Adoption: RCW 28A.155.090.
Statute Being Implemented: Chapter 28A.155 RCW.
Rule is necessary because of federal law, 34 C.F.R. § 300.518.
Name of Proponent: OSPI, governmental.
Name of Agency Personnel Responsible for Drafting: Pamela McPartland, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, (360) 725-6075; Implementation and Enforcement: Douglas H. Gill, OSPI, P.O. Box 47200, Olympia, WA 98504-7200, (360) 725-6075.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The joint administrative rules review committee has not requested the preparation of a small business economic impact statement. Section 1, chapter 201, Laws of 2012, applies only to rules proposed by the state board of education.
A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to OSPI proposed rules unless requested by the joint administrative rules review committee or applied voluntarily.
June 30, 2015
Randy Dorn
State Superintendent
of Public Instruction
NEW SECTION
WAC 392-172A-01031 Behavior intervention plan.
A behavior intervention plan is a plan incorporated into a student's IEP that describes:
(1) The pattern of behavior that impedes the student's learning or the learning of others;
(2) The purpose or function of the behavior as identified in a functional behavioral assessment; and
(3) The positive interventions and supports, and other strategies to:
(a) Reduce the behavior(s) of concern and increase the desired prosocial behaviors;
(b) Maximize consistency of implementation across people and settings in which the student is involved; and
(c) If applicable, the skills that will be taught and monitored in an effort to change a specific pattern of behavior of the student.
NEW SECTION
WAC 392-172A-01094 Imminent.
Imminent means likely to happen right away, within a matter of minutes.
NEW SECTION
WAC 392-172A-01107 Isolation, restraint, and restraint device.
The terms, "isolation, restraint, and restraint device" have the same meaning given to the terms in RCW 28A.600.485 and is only to be used consistent with the requirements in RCW 28A.600.485. A restraint device does not include a seat harness used to safely transport a student or other safety devices including safety belts for wheelchairs, changing tables, and booster seats and other ambulatory or therapeutic devices when used for the purpose they are intended for safety of the student.
NEW SECTION
WAC 392-172A-01109 Likelihood of serious harm.
Likelihood of serious harm as defined in RCW 70.96B.010 means:
(1) A substantial risk that:
(a) Physical harm will be inflicted by a person upon his or her own person, as evidenced by threats or attempts to commit suicide, or inflict physical harm on oneself;
(b) Physical harm will be inflicted by a person upon another, as evidenced by behavior that has caused such harm or that places another person or persons in reasonable fear of sustaining such harm; or
(c) Physical harm will be inflicted by a person upon the property of others, as evidenced by behavior that has caused substantial loss or damage to the property of others; or
(2) The person has threatened the physical safety of another and has a history of one or more violent acts.
NEW SECTION
WAC 392-172A-01142 Positive behavior interventions.
Positive behavior interventions are strategies and instruction which are implemented in a systematic manner in order to provide alternatives to challenging behaviors, reinforce desired behaviors and reduce or eliminate the frequency and severity of the challenging behaviors of concern.
NEW SECTION
WAC 392-172A-01177 Spontaneous.
Spontaneous means an act that is done in a sudden way, without thought or planning.
AMENDATORY SECTION (Amending WSR 13-20-034, filed 9/24/13, effective 10/25/13)
WAC 392-172A-03025 Review of existing data for evaluations and reevaluations.
As part of an initial evaluation, if appropriate, and as part of any reevaluation, the IEP team and other qualified professionals, as appropriate, must:
(1) Review existing evaluation data on the student, including:
(a) Evaluations and information provided by the parents of the student;
(b) Current classroom-based, local, or state assessments, and classroom-based observations; and
(c) Observations by teachers and related services providers.
(2)(a) On the basis of that review, and input from the student's parents, identify what additional data, if any, are needed to determine:
(i) Whether the student is eligible for special education services, and what special education and related services the student needs; or
(ii) In case of a reevaluation, whether the student continues to meet eligibility criteria, and whether ((the educational needs of the student including)) 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 education curriculum; and
(b) The present levels of academic achievement and related developmental needs of the student.
(3) The group described in this section may conduct its review without a meeting.
(4) The school district must administer such assessments and other evaluation measures as may be needed to produce the data identified in subsection (2) of this section.
(5)(a) If the IEP team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the student continues to be a student eligible for special education services, and to determine the student's educational needs, the school district must notify the student's parents of:
(i) That determination and the reasons for the determination; and
(ii) The right of the parents to request an assessment to determine whether the student continues to be a student eligible for special education, and to determine the student's educational needs.
(b) The school district is not required to conduct the assessment described in this subsection (5) unless requested to do so by the student's parents.
AMENDATORY SECTION (Amending WSR 07-14-078, filed 6/29/07, effective 7/30/07)
WAC 392-172A-03090 Definition of individualized education program.
(1) The term IEP means a written statement for each student eligible for special education that is developed, reviewed, and revised in a meeting in accordance with WAC 392-172A-03095 through 392-172A-03100, and that must include:
(a) A statement of the student's present levels of academic achievement and functional performance, including:
(i) How the student's disability affects the student's involvement and progress in the general education curriculum (the same curriculum as for nondisabled students); or
(ii) For preschool children, as appropriate, how the disability affects the child's participation in appropriate activities;
(b)(i) A statement of measurable annual goals, including academic and functional goals designed to:
(A) Meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and
(B) Meet each of the student's other educational needs that result from the student's disability; and
(ii) For students who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives;
(c) A description of:
(i) How the district will measure the student's progress toward meeting the annual goals described in (b) of this subsection; and
(ii) When the district will provide periodic reports on the progress the student is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards);
(d) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, 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 to enable the student:
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved in and make progress in the general education curriculum, and to participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other students including nondisabled students in the activities described in this section;
(e) An explanation of the extent, if any, to which the student will not participate with nondisabled students in the general education classroom and extracurricular and nonacademic activities;
(f)(i) A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the student on state and districtwide assessments; and
(ii) If the IEP team determines that the student must take an alternate assessment instead of a particular regular state or districtwide assessment of student achievement, a statement of why:
(A) The student cannot participate in the regular assessment; and
(B) The particular alternate assessment selected is appropriate for the student;
(g) Extended school year services, if determined necessary by the IEP team for the student to receive FAPE.
(h) ((Aversive interventions, if any, required for the student.)) Behavior intervention plans, if needed.
(i) The projected date for the beginning of the services and modifications described in (d) of this subsection, and the anticipated frequency, location, and duration of those services and modifications.
(j) Beginning not later than the first IEP to be in effect when the student turns sixteen, or younger if determined appropriate by the IEP team, and updated annually, thereafter, the IEP must include:
(i) Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and
(ii) The transition services including courses of study needed to assist the student in reaching those goals.
(k) Transfer of rights at age of majority. Beginning not later than one year before the student reaches the age of eighteen, the IEP must include a statement that the student has been informed of the student's rights under the act, if any, that will transfer to the student on reaching the age of majority.
(l) The school district's procedures for notifying a parent regarding the use of isolation, restraint, or a restraint device.
(2) Construction. Nothing in this section shall be construed to require:
(a) Additional information be included in a student's IEP beyond what is explicitly required by the federal regulations implementing the act or by state law; or
(b) The IEP team to include information under one component of a student's IEP that is already contained under another component of the student's IEP.
NEW SECTION
WAC 392-172A-03092 Requirements for including isolation, restraint, or a restraint device in an IEP.
(1) If the parent and district agree that the use of isolation, restraint, or a restraint device will be contained in a student's IEP, the use must:
(a) Be consistent with the recommendations of the IEP team which must include a member who is familiar with the use of positive behavior interventions.
(b) Specify the conditions under which restraint or isolation or a restraint device will be used.
(c) Describe or specify the maximum duration of each isolation or restraint or use of a restraint device and any special precautions that must be taken.
(d) Specify the staff or contracted positions permitted to use the restraint and isolation with the student and the required training, which must be updated annually, for the staff or contracted positions permitted to use the restraint or isolation described in the IEP.
(2) School districts will follow the documentation and reporting requirements for any use of restraint or isolation consistent with RCW 28A.600.485 regardless of whether the use of isolation, restraint, or a restraint device is contained in the student's IEP.
AMENDATORY SECTION (Amending WSR 07-14-078, filed 6/29/07, effective 7/30/07)
WAC 392-172A-03100 Parent participation.
A school district must ensure that one or both of the parents of a student eligible for special education are present at each IEP team meeting or are afforded the opportunity to participate, including:
(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(3) The notification required under subsection (1) of this subsection must:
(a) Indicate the purpose, time, and location of the meeting and who will be in attendance; and
(b) Inform the parents about the provisions relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the student, and participation of the Part C service coordinator or other designated representatives of the Part C system as specified by the state lead agency for Part C at the initial IEP team meeting for a child previously served under Part C of IDEA.
(4) Beginning not later than the first IEP to be in effect when the student turns sixteen, or younger if determined appropriate by the IEP team, the notice also must:
(a) Indicate that a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the student and that the agency will invite the student; and
(b) Identify any other agency that will be invited to send a representative.
(5) If neither parent can attend an IEP team meeting, the school district must use other methods to ensure parent participation, including video or telephone conference calls.
(6) A meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such 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.
(7) The school district must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.
(8) The school district must give the parent a copy of the student's IEP at no cost to the parent.
(9) The school district must provide parents a copy of the district's policy on its use of restraint and isolation.
AMENDATORY SECTION (Amending WSR 07-14-078, filed 6/29/07, effective 7/30/07)
WAC 392-172A-03110 Development, review, and revision of IEP.
(1) In developing each student's IEP, the IEP team must consider:
(a) The strengths of the student;
(b) The concerns of the parents for enhancing the education of their student;
(c) The results of the initial or most recent evaluation of the student; and
(d) The academic, developmental, and functional needs of the student.
(2)(a) When considering special factors unique to a student, the IEP team must:
(i) Consider the use of positive behavioral interventions and supports, and other strategies, to address behavior, in the case of a student whose behavior impedes the student's learning or that of others, including the need for the planned use of isolation, restraint, or a restraint device as part of a behavior intervention plan if the individual needs of the student require more specific advanced educational planning in order to provide a free appropriate public education. Provided, the IEP will not include the use of isolation, restraint, or a restraint device as a planned behavior intervention unless the student's individual needs require more specific advanced educational planning and the parent agrees in writing; and
(ii) Consider the language needs of the student as those needs relate to the student's IEP, for a student with limited English proficiency;
(iii) 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;
(iv) 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
(v) Consider whether the student needs assistive technology devices and services.
(b) A general education teacher of a student eligible for special education, as a member of the IEP team, must, to the extent appropriate, participate in the development of the student's IEP, including the determination of:
(i) Appropriate positive behavioral interventions and supports and other strategies for the student; and
(ii) Supplementary aids and services, program modifications, and support for school personnel consistent with WAC 392-172A-01185.
(c) After the annual IEP team meeting for a school year, the parent of a student eligible for special education and the school district may agree not to convene an IEP team meeting for the purposes of making changes to the IEP, and instead may develop a written document to amend or modify the student's current IEP. If changes are made to the student's IEP the school district must ensure that the student's IEP team is informed of those changes and that other providers responsible for implementing the IEP are informed of any changes that affect their responsibility to the student, consistent with WAC 392-172A-03105(3).
(d) Changes to the IEP may be made either by the entire IEP team at an IEP team meeting, or as provided in (c) of this subsection, by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent must be provided with a revised copy of the IEP with the amendments incorporated.
(e) To the extent possible, the school districts must encourage the consolidation of reevaluation meetings and other IEP team meetings for the student.
(3) Each public agency must ensure that, subject to subsections (4) and (5) of this section the IEP team:
(a) Reviews the student's IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved; and
(b) Revises the IEP, as appropriate, to address:
(i) Any lack of expected progress toward the annual goals described in WAC 392-172A-03090 (1)(b) and in the general education curriculum, if appropriate;
(ii) The results of any reevaluations;
(iii) Information about the student provided to, or by, the parents, as described under WAC 392-172A-03025;
(iv) The student's anticipated needs; or
(v) Other matters.
(4) In conducting a review of the student's IEP, the IEP team must consider the special factors described in subsection (2)(a) of this section. ((In the case of a student whose behavior continues to impede the progress of the student or others despite the use of positive behavioral support strategies: Consider the need for aversive interventions only as a last resort, if positive behavior supports have been used in accordance with the student's IEP, the use of positive behavior supports has been documented to be ineffective, and the IEP team, consistent with WAC 392-172A-03120 through 392-172A-03135 determines that an aversive intervention plan is necessary for the student.))
(5) A general education teacher of the student, as a member of the IEP team, must, consistent with subsection (2)(b) of this section, participate in the review and revision of the IEP of the student.
(6)(a) If a participating agency, other than the school district, fails to provide the transition services described in the IEP in accordance with WAC 392-172A-03090 (1)(j), the school district must reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.
(b) 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 students eligible for special education services who meet the eligibility criteria of that agency.
(7)(a) The following requirements do not apply to students eligible for special education who are convicted as adults under state law and incarcerated in adult prisons:
(i) The requirement that students eligible for special education participate in district or statewide assessments.
(ii) The requirements related to transition planning and transition services, if the student's eligibility for special education services will end because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.
(b)(i) Subject to (b)(ii) of this subsection, the IEP team of a student with a disability who is convicted as an adult under state law and incarcerated in an adult prison may modify the student's IEP or placement if the state has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.
(ii) Contents of the IEP and LRE (least restrictive environment) requirements do not apply with respect to the modifications described in (b)(i) of this subsection.
AMENDATORY SECTION (Amending WSR 13-20-034, filed 9/24/13, effective 10/25/13)
WAC 392-172A-05110 Timelines and convenience of hearings.
(1) Not later than forty-five days after the expiration of the thirty day resolution period, or the adjusted time periods described in WAC 392-172A-05090(3):
(a) A final decision shall be reached in the hearing; and
(b) A copy of the decision shall be mailed to each of the parties.
(2) Reconsideration of the decision under RCW ((34.05.070)) 34.05.470 is not allowed under Part B of the act due to the timelines for issuing a final decision.
(3) An administrative law judge may grant specific extensions of time beyond the period in subsection (1) of this section at the request of either party.
(4) Each due process hearing must be conducted at a time and place that is reasonably convenient to the parents and student involved.
AMENDATORY SECTION (Amending WSR 07-14-078, filed 6/29/07, effective 7/30/07)
WAC 392-172A-05125 Student's status during proceedings.
(1) Except for due process hearings involving special education discipline procedures, during the pendency of any administrative hearing or judicial proceeding regarding the due process hearing proceedings, the student involved in the hearing request must remain in his or her current educational placement, unless the school district and the parents of the child agree otherwise.
(2) If the hearing request 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 hearing request involves an application for initial Part B services for a child who is transitioning from Part C of the act to Part B and is no longer eligible for Part C services because the child has turned three, the school district is not required to provide the Part C services that the child had been receiving. If the student is found eligible for special education and related services and the parent consents to the initial provision of special education and related services, then the school district must provide those special education and related services that are not in dispute between the parent and the school district.
(4) If the administrative law judge agrees with the student's parents that a change of placement is appropriate ((through the final decision or during the pendency of the due process hearing)), that placement must be treated as an agreement between the school district and the parents for purposes of subsection (1) of this section.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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